Election Day Employer’s Handbook: Legal Obligations Employers Should Be Aware of in Anticipation of the 2024 Presidential Election

election day multicultural citizens voting
Election day multicultural citizens voting

Article contributed by Nicola CiliottaEllenoff Grossman & Schole LLP


With election day fast approaching, it is essential that employers are aware of their legal obligations, and that they are prepared to address the many workplace issues that frequently arise in the leadup to elections. 

Employee Time Off for Voting

Although federal law does not require employers to give employees time off to vote on election day, most states do provide some form of voting leave.

These state laws vary significantly by state, with some states requiring that time off be paid, while others requiring only that employers allow employees to use accrued personal leave. Additionally, several states require advance notice or proof of voting.

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For example, in New York, employees are allowed to take up to two hours of time off to vote if the employee does not have a four-hour window to vote outside of work hours. New York employers must also post a notice advising employees of their voting leave rights no less than ten days before the election.

Similarly, in California, employers must grant employees up to two hours of paid time off to vote if they don’t have enough time outside work hours. Like New York employers, California Employers must also post a notice to employees advising them of their rights at least ten days before the election.

As mentioned earlier, most states – 31 of 50 – impose similar voting leave requirements on employers. It is crucial that employers are aware of and comply with the applicable voting leave and notice laws. Otherwise, they face stiff penalties including, in some states,
criminal penalties.

Other employment-related issues often arise naturally during election cycles. Employers should be prepared to address such issues.

Political Speech in the Workplace

Political discourse can often become quite intense, particularly in an election as contentious and divisive as the upcoming presidential election.

As we all have likely experienced, this political discourse frequently makes its way into the workplace, and employers can be faced with difficult situations where they may want to limit political speech at work, or even discipline employees for voicing certain opinions.

Generally speaking, private employers have broad discretion to govern political expression (e.g. banning employees from wearing political insignia) and political speech (e.g. banning employees from voicing their opinions about crime policy) in the workplace.

That discretion, however, is not limitless and is curtailed by both federal and state laws. For example, depending on the content of the speech, the federal National Labor Relations Act or Title VII may prohibit employers from limiting employees from voicing their opinions.

In addition, many states provide employees with additional rights that protect certain political speech in the workplace. For a more in-depth discussion about political speech in the workplace, we encourage you to read our prior article, Can You Fire an Employee For Their Political Speech?

Off-Duty Political Speech and Activities

Employers do not have such broad discretion, however, when dealing with political speech and activities outside of the workplace. While federal laws do not explicitly touch on this subject, many states have laws that prohibit employers from discriminating against or disciplining employees for engaging in lawful off-duty political activities and speech.

For example, in New York, state law prohibits employers from discriminating against employees for campaigning for a certain candidate or participating in fund-raising activities for a candidate, political party, or political advocacy group.

Political Posts on Social Media

With much of the political discourse occurring on social media, employers may be tempted to review their employees’ social media posts to, perhaps, assess whether employees’ views and values align with their own. Employers should, however, tread carefully.

To begin with, social media posts made on employees’ personal accounts constitute off-duty activities. Accordingly, employers generally cannot limit, or impose discipline on, employees for strictly political posts.

Additionally, approximately half of states, including New York and California, have laws curtailing an employer’s right to demand review of employees’ private social media posts.

Although these laws vary slightly, they all generally prohibit employers from asking for employees’ social media usernames and/or passwords, or requiring employees to share any social media posts that are not publicly available.

Mandatory Meetings

During particularly contentious elections, employers may also be tempted to hold employee meetings to discuss political issues. Employers, however, should avoid such meetings.

Although there is no federal law covering this topic, several states, including New York and California, prohibit employers from holding mandatory “captive audience meetings”, the primary purpose of which is for management to voice its views on religious, political, or union matters.

Election cycles can be challenging times for everyone, particularly in the employment context. There may be tension between busy employees who want to vote on election day, and managers who have difficulty staffing their restaurant.

There may be tension between vocal co-workers expressing their differing views. There may be tension between politically-minded employees and their managers who want a workforce that aligns with them politically.

Regardless, employers must be aware of and comply with their legal obligations to avoid costly penalties and liability.


EGS Nicola Ciliotta

Nicola Ciliotta is an Associate in the Labor & Employment practice group at Ellenoff Grossman & Schole LLP in New York City.

His expansive labor and employment practice encompasses everything from representing employers in court and other forums, to advising businesses on all aspects of the employment relationship.

Mr. Ciliotta has significant experience representing clients in state and federal court, grievance and arbitration proceedings, and before various government agencies in employment disputes involving allegations of, inter alia, discrimination, sexual harassment, retaliation, wrongful termination, hostile work environment, and unpaid wages.

Mr. Ciliotta’s practice also consists of conducting internal investigations and advising businesses on compliance with federal, state, and local labor laws and regulations. Nicola Ciliotta can be reached via email at nciliotta@egsllp.com or by phone at 212-370-1300.

  • RATIONAL USA
  • Food Export Northeast USA
  • SFA Winter Fancy Faire
  • Imperial Dade
  • BelGioioso Burrata
  • Easy Ice
  • ERA Group
  • Day & Nite
  • Red Gold BBQ
Ellenoff Grossman & Schole LLP
Ellenoff Grossman & Schole LLP (“EGS”) has unparalleled experience representing restaurants, hotels, gaming and casino operations, private clubs, spas, golf courses, catering establishments and venues – from small to large; from local to national; from “mom and pop” establishments to multinational corporations. Our highly experienced and dedicated attorneys not only provide expert legal services in the full panoply of seemingly ever-changing federal, state and local laws facing hospitality employers, but we know how your businesses operate which provides us with a demonstrated ability to provide vigorous yet cost-effective, results-oriented representation. Since EGS is a full service law firm we are also able to provide hospitality employers with a wide range of services including labor & employment, corporate, M&A, intellectual property, real estate, commercial litigation and immigration. EGS understands the challenges of the hospitality business and pride ourselves on providing solutions.
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