Employee Leave Policies During Election Season

With a hotly contested presidential election drawing closer, AFJ has been receiving inquiries from organizations with employees who wish to take leave from work to volunteer for election-related activities. All employers need to consider how to deal with such leave requests, but the stakes are even higher for 501(c)(3) employers.  After all, would granting leave be construed as intervention in a political campaign that is impermissible for (c)(3) organizations? 501(c)(c) and other organizations may grant leave to employees wanting to volunteer for political campaigns, provided they  follow certain rules and best practices when doing so.

Use of Paid Time Off or Vacation Time

Federal law makes clear that individuals can volunteer for political candidates or campaigns without their time being considered a contribution to the candidate. See 52 USCS 30101(8)(b)(i) and 11 CFR 100.74, which exclude from the definition of contribution, “the value of services provided without compensation by any individual who volunteers on behalf of a candidate or political committee.” Granting an employee’s request for time off to work on a political campaign is not  a contribution to the campaign—provided leave is granted pursuant to regular company policy and is not granted or denied based on the partisan preferences of the employer. Federal regulations (11 CFR 100.54) state that when an employee engages in political activity while using compensable time off, “no contribution results where the time used by the employee to engage in political activity is bona fide, although compensable, vacation time or other earned leave time.”

Unpaid Leaves of Absence

Employers may also receive requests to take an unpaid leave of absence from an employee wanting to volunteer for a campaign. Similar to granting vacation or paid time off, requests to take an unpaid leave of absence should be treated pursuant to company policy and not granted or denied based on the partisan preferences of the employer or employee. When an employee takes an unpaid leave of absence, questions arise whether the company can pay benefits, such as health insurance, without that being construed as an impermissible contribution to a candidate. Paying benefits during an unpaid leave would not be considered a contribution if the corporation has an existing policy of paying benefits during unpaid leaves of absence, and the policy is applied in the same manner as it is for other unpaid leaves of absence. See 11 CFR 114.12 and also FEC Advisory Opinion 1992-3, in which a corporation’s pre-existing policy of paying fringe benefits for 30 days of an unpaid leave would not be construed as a contribution. If an employer does not have a pre-existing policy to pay benefits during an unpaid leave of absence, it should not create a policy to accommodate an employee requesting an unpaid leave to volunteer for political activities.

Best Practices for Granting Leave Requests The following are best practices for granting leave requests for employees planning to volunteer for a political campaign:

• Leave requests, both paid and unpaid, should be granted or denied pursuant to established company policy, including any requirements related to eligibility for leave, and other company policies.
• Do not grant or deny leave based on which candidate or party the employee will be volunteering. Decisions to grant or deny leave must be based on neutral criteria, and be based on the same determinations as decisions to grant leave for any other reason.
• When the employee is seeking an unpaid leave of absence, payment of benefits should be pursuant to corporate policies applicable to all unpaid leaves of absence. If the company has a pre-existing policy in which it pays for some or all benefits for an employee taking an unpaid leave of absence, its payment of benefits will not be considered a contribution. However, the company should not create a new policy of paying for benefits to accommodate an employee seeking an unpaid leave to work on a political campaign.

Time Off for Voting or Working at a Polling Location

Employers may also encounter requests from employees seeking leave to vote or to volunteer at a polling location.  Requests to volunteer on Election Day at a polling location should be treated as any request for leave, following the best practices above. There are no federal laws addressing time off to vote, but many states do require employers to allow an employee to take time off if the employee’s working hours would prevent them from voting. Typically, in states with laws that do address time off to vote, if a worker does not have sufficient time before or after their work hours, the employer must grant a request for time off.  Often the employer can direct when the worker takes off, and in most states, time off does not have to be compensated. States with laws that do require time off to vote often require employers to post notices about time off to vote laws.  For current information about your state laws, check your state board of elections website.