As the 2024 election approaches, on Tuesday, November 5^th, Wessels Sherman offices in Illinois, Minnesota, Iowa, and Wisconsin have been fielding questions about employee voting rights. Because this is governed by state law and each state’s laws differ it can be confusing, particularly for employers with employees in more than one state.  This refresher will provide employers with a quick summary of their obligations to allow employees time off work to vote. The good news is that Illinois, Wisconsin, and Iowa voting rights laws are relatively similar and generally uncomplicated. The main difference is that some states require that time off to vote be paid, while others allow for unpaid time. Unfortunately for those employers with employees in the “Land of 10,000 Lakes”, Minnesota has by far the most complicated (and least friendly to employers) law of the four states.

The following summaries of the voting requirements in Illinois, Minnesota, Iowa, and Wisconsin, should help our readers comply with voting rights laws that apply to their organizations, while also allowing employees an adequate opportunity to vote in the 2024 election. Our hope is that this refresher will help minimize operational disruptions and confusion among workers, while possibly avoiding grievances or claims of voting right violations.  

Illinois: Allows employees who are eligible to vote, up to 2 hours of paid time off, unless they have at least 2 hours outside of work to vote. Example: If polls open from 7:00 AM to 7:00 PM, an employee who works from 8:00 AM to 5:00 PM would be ineligible for paid time off to vote because the employee would have 2 hours (5-7 PM) outside of work to vote.  Illinois employers can require employees to provide 1 day’s advance notice of their need for time off to vote and require proof of the employee’s voter registration to verify eligibility to vote.

Wisconsin and Iowa: These states require that employees eligible to vote in the election have at least 3 successive hours free from work to vote. Employees who have 3 consecutive hours outside of work need not be excused from work. Example: If polls open from 7:00 AM to 8:00 PM, employees who work from 8:00 AM to 5:00 PM need not be allowed any time off because they would have 3 consecutive hours outside of work (5-8 PM) to vote. However, an employee who works from 8:00 AM to 7:00 PM on election day must be given 2 hours off, either 8-10 AM or 5-7 PM, to provide them with a block of 3 hours to vote. Using this second example, employers can designate which period employees may use, AM or PM.

The big difference between Iowa and Wisconsin voting laws is that in Iowa the time off work must be paid, whereas in Wisconsin the time can be unpaid. Like Illinois, both Iowa and Wisconsin allow employers to require employees to provide at least 1 day’s advance notice of an employee’s request for time off.

Minnesota: Sorry folks, but Minnesota’s voting law is a mess! It requires that employers provide paid time off for “the time necessary to appear at the employee’s polling place, cast a ballot, and return to work.” This paid leave can be used on election day, or any day where voting in person is allowed (i.e. early in-person voting already taking place in Minnesota).  Unlike the other three state laws Minnesota law does not assume an appropriate amount of time needed to vote (2 or 3 hours).  By leaving the time needed to vote ill-defined, it is subject to debate (and abuse). In any event the time needed to vote will necessarily vary between employees based on their address and their polling location. One consolation is that the Minnesota Secretary of State has stated a reasonable amount of time necessary to vote, can include non-work time like the other states.

While Minnesota law does not specify that employers may require advance notice of an employee’s request for time off to vote, neither does it prohibit such a requirement. Again, the Secretary of State has indicated that employers may ask employees to give notice of when they expect to be gone to vote, and that employees are obligated to coordinate their absences to minimize workplace disruptions.

Best Practices: Regardless of the state, employers are well advised to act proactively in advance of November 5^th to minimize disruptions to their operations while allowing employees their protected rights to vote. By clearly communicating expectations employers can avoid unnecessary misunderstandings or employee grievances. Here are a few suggestions to help things run smoothly on election day:

1. If you have not already done so, communicate to all employees (preferably in writing) in advance of November 5^th about the election. At a minimum, notify employees that anyone needing time off to vote must notify HR, etc. at least one day in advance of 11/5/24 to be assured that the request will be granted.

• Because each of the four state laws addressed in this article allows employers to require advance notice from employees of any need to time off to vote, consider the consequences of an employee’s failure to provide the notice. The more draconian/risky action may be to deny time off and/or even to discipline the employee, however, for those states that require voting time off be paid, perhaps the time is granted but not paid. Of course, employers who fail to clearly communicate expectations to their employees are in no position to dish out consequences for noncompliance.

• Use advance notice of employee requests for time off to plan operations while taking advantage of those few rights employers are allowed under these laws. For example, use advance notice to work with individual employees to arrange agreeable times that differ among workers so that you are adequately staffed throughout normal business hours on election day. This means allowing a maximum of 2 hours off work in Iowa (paid) and Wisconsin (unpaid) or no more than 3 paid hours in Illinois. Also, use the advance notice to verify polling hours and eligibility to vote with each employee.

• Minnesota employers can use this advance notice also to discuss what is a reasonable amount of time for individual employees to vote.  By confirming the distance to/from an employee’s polling place, and discussing with them what seems reasonable, employers can potentially avoid disputes over the time “necessary” to vote and return to work. It may also help to avoid unreasonable requests for paid time off that far exceed what it is necessary to vote. It comes as no surprise that Minnesotan employers have in the past experienced employees and/or their unions, who try to abuse the state’s poorly written, vague statute to take excessive paid leave on election day.

Another tip to potentially reign in voting abuse is to communicate that you reserve the right to verify the reasonableness of any request for/use of time off work to vote. For instance, the time initially arranged for an employee to vote may end up being exceeded. Polls do not always run smoothly or efficiently, and the time it takes to vote may end up being much longer than anyone anticipated. Employers are advised to be reasonable about this and fully support their employees voting in the election; however, where circumstances suggest an employee simply overstayed what was necessary to vote, never returned to work, etc., at least by making it know that you reserve the right to investigate it may help avoid the temptation to take advantage of what are otherwise very well intended voting rights laws.

A final comment applicable to all these state laws, and probably any other state laws, is that employees may not be denied their statutory rights, nor may employers retaliate or take adverse action against employees for exercising their rights. Similarly, employers may not require employees to use other paid leaves (vacation, PTO, etc.) to be paid for voting time off. Wisconsin employers may allow, but not require, employees to use other paid leaves to be paid for what otherwise would not be paid under that state’s voting law.  Illinois, Minnesota, and/or Iowa voting leaves are paid by law, and so it is unlawful to require employees to burn other paid leaves. Of course, nothing prevents an employer from providing more generous terms that go beyond the minimum required by the statute.

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Questions? Or, for a sample Election Memorandum for Employees in advance of November 5^th:  Contact Attorney James Sherman at 952-7446-1700 or email to jasherman@wesselssherman.com.