Las Vegas Sun

October 16, 2019

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Attorney: Use ‘common sense’ when asking for time off to vote

Employers must provide time if Tuesday’s your only chance to vote

Catherine Cortez Masto Votes at Cardenas Market

Steve Marcus

Given both Nevada’s two weeks of early voting and 12-hour window on Election Day, proving you could not vote outside your shift on Tuesday could be difficult.

Nevada law requires your employer to give you time to vote on Election Day, but be prepared to prove that the hours you work present your only chance to exercise the right.

A state law passed in 1960 mandates that employers provide between one and three paid hours of time off to employees for whom it is impractical to vote at any other time. The law, however, predates the beginning of early voting two decades ago. Given both Nevada’s two weeks of early voting and the fact the polls are open from 7 a.m. to 7 p.m. on Election Day, proving you could not vote outside your shift on Tuesday could be difficult.

“With early voting, it makes it pretty hard for an employee to demonstrate it was impracticable for them to vote,” said Shannon Pierce, an employment defense attorney with Fennemore Craig in Reno. “It’s going to be the employee’s burden to show they really couldn’t vote at any other time.”

Pierce said it is in the best interest of employees to “use common sense and vote after hours or on weekends if that’s available to them.”

Laws governing Election Day time off vary across the country. Employers are required to provide time for voting in 31 states and paid hours in 23 of those. Employees typically receive between two and three hours, although cold-weather states such as Alaska, Iowa and Minnesota offer as much time as needed.

Per Nevada law, the employee must request leave at least a day in advance and the employer can choose when during a shift the employee leaves in order to vote.

“The more notice you give an employer, the better it’s going to go for you,” Pierce said.

How much time is granted depends upon how far the employee would need to travel to and from the polling place, meaning that not all employees would be eligible for the same amount of paid time off.

If you work two miles or less from your polling place, an employer must provide one paid hour. When the distance grows to two to 10 miles, the employer must provide two hours of paid leave. A commute of more than 10 miles from the polling place requires three hours of paid leave.

The law did not apply during the caucuses for president, according to a 2007 interpretation of the statute by Secretary of State Ross Miller.

The law appears largely untested, though. Only one case from 2012 cites the statute, in which an employee claimed to have been fired for taking time off to vote. The case was dismissed.

“It’s one of those things where because the statute strikes a good balance, most people are going to get time to vote,” Pierce said.

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