Tuesday is election day. Polls are open in California from 7:00 a.m. to 8:00 p.m

California employers must give an employee up to two hours of paid time off to vote if the employee is scheduled to be at work during that time and the employee does not have enough time off work to vote. Employers must grant this time off for voting “only at the beginning or end of the regular work shift, whichever provides the most time off for voting and the least time off in the regular work shift, unless agrees otherwise.”

How does the right to vote by mail affect the right to paid time off for voting?

Californians can now cast their mail-in ballots at a time and date of their choosing, starting weeks before Election Day. According to the California Secretary of State, nearly 90 percent of California voters cast their mail-in ballots in the 2020 and 2022 general elections and the 2024 primary election.

Under the Voter Choice Act (VCA), voters in San Diego, Orange, Los Angeles and 26 other counties can drop off their mail-in ballots at one of the many vote centers beginning 10 days before Election Day. According to the California Chamber of Commerce, “All of this makes it difficult for employees — especially those who vote in VCA participating counties — to claim they need time off to vote.”

However, we have found no binding rule from any regulatory body or court decision addressing whether California’s universal right to vote by mail effectively limits or eliminates the right to paid time off to vote. In the absence of such guidance, employers should allow employees to take this time off to vote, if requested, even if the employee has not given at least two business days’ notice of the desire to take time off paid for this purpose as generally required by California law.

Employers cannot require employees to bring their mail-in ballots to work

California Election Code section 14004 prohibits an employer from requiring or requiring an employee to bring a mail-in ballot to work or vote a mail-in ballot at work. This is similar to the California Labor Code prohibition against an employer threatening to fire an employee for taking or refusing to take a particular course of political action or political activity.

Employers can encourage their employees to vote, but they cannot reward it

Section 14004 expressly “does not prohibit an employer from encouraging an employee to vote.” But it’s a federal crime for an employer — or anyone else — to “pay” someone to vote. As the U.S. Court of Appeals for the District of Columbia Circuit said in a ruling last month, “Paying someone to vote is, of course, illegal.”

Under California law, it is a crime to reward any voter for voting for or against a particular person or measure, or for not voting at all. California law also makes it a crime to receive anything of value before, during, or after an election to vote or abstain.

Therefore, employers should not reward their employees with money or anything else of value for wearing their “I Voted” stickers, sharing the email they received from the registrar of voters confirming receipt of the ballot, or for demonstrating in another way that they voted, even if prosecution is unlikely.

The choices Americans make in this election will determine how the law develops in the coming years. Workplace election law aims to ensure that these elections are made without undue hindrance, pressure or financial incentives.

Eaton is a partner with the San Diego law firm Seltzer Caplan McMahon Vitek, where his practice focuses on the defense and counseling of employers. He is also an instructor at San Diego State University Fowler College of Business, where he teaches courses in business ethics and employment law. He can be reached at [email protected].