“Hey, Josephine. I need to take off to go vote today.”
“Wait a minute Joe, you do that on your own time.”
“But I need to vote.”
“Well, if you leave work, no need to come back.”
Tennessee Code Annotated 2-1-106 provides that an employee on the day of an election must be given “a reasonable period of time, not to exceed three (3) hours, necessary to vote during the time the polls are open in the county where the person is a resident.” The law also provides, however, that the employee has to make application for the time off at least before noon on the day before the election. Further, the law provides that if the employee’s work begins three or more hours after the polls have opened or ends three or more hours before the polls close in the county where the employee is a resident, then the employee is not entitled to the time off. The employee “may not be subjected to any penalty or reduction in pay for such absence.”
Termination of an employee for a protected right, protected by a statute or regulation, can give rise to a retaliatory discharge lawsuit. If Joe (the employee) makes applications before lunchtime the day before the election, and if Joe’s work does not start three or more hours after the polls in his county open or his work does not end three or more hours before the polls close in his county, you better let him off to go vote.
In the case of Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992) a Tennessee jury returned a verdict of $575,000 for a plaintiff found to have been wrongfully discharged for engaging in a protected activity (jury duty).
So, wise word to the employer: Wait, wait, don’t do it. Give the employee time off to exercise his or her right to vote.
J. Steven Collins serves in an Of Counsel role in Spicer Rudstrom’s Knoxville office. He is an experienced litigation attorney practicing in employment law, domestic relations and premises liability. He has achieved an AV Preeminent rating from Martindale-Hubbell, is past president of the Knoxville Bar Association and is a graduate of Leadership Knoxville.