Employer Duties on Election Day: A Global Comparison
As we approach mid-2024, a year marked by a significant number of global elections, it is crucial for employers to grasp their pivotal role in facilitating workers’ participation in the democratic process. Dafna Shmuelevich, a founding partner at Dafna Shmuelevich and Co. Labor and Employment Law Office, a boutique labour law firm representing employers only, provides a comprehensive analysis of these essential duties.
The Right to Vote v Work Obligations in Israel
Under Israeli law, the election to Parliament is held on a weekday (Tuesday). Voting requires personal attendance at the polling stations. Election day is a mandatory paid holiday for most employees regardless of whether they are voting or able to vote before or after work. An employee who consents to work is entitled to double their hourly or daily wage, with any fringe benefit derived from the base salary going up accordingly.
Israel has witnessed nine (!) parliamentary election campaigns in the last eleven years, in addition to two municipal elections, last held on 27 February 2024, during the military operations in Gaza. These elections cost even more due to special arrangements for many citizens serving in the IDF reserves. Despite these efforts, only 50% of eligible voters participated in the process.
The financial implications and low voter turnout on election day raise some pressing questions: does paid voting leave increase voter turnout? If so, should the employer bear the entire burden? And what alternatives exist to minimise lost working hours and boost voter participation? These are crucial considerations for employers in Israel and other countries with similar election laws.
Election Day Work Arrangements Around the Globe
The Israeli election model is highly unusual compared to others. Based on data presented to the Knesset recently (on 24 May 2023), among the 38 member countries of the OECD:
- 29 countries schedule elections on weekends when most workers are already off;
- nine countries hold midweek elections; and
- only two countries legislate a mandatory paid holiday on election day (Israel and South Korea).
The models among the other seven countries that hold midweek elections differ in many ways. In Ireland, the UK, Denmark, and Norway, no legislation requires employers to allow time off for voting. However, alternative voting methods are accessible in each of these countries, with some not requiring personal attendance at polling stations. In 2020, Ireland scheduled the elections for Saturday (instead of Friday), hoping to raise the voting rate, which ultimately declined by 4%.
In the Netherlands, employers are obligated to provide employees with two unpaid hours off if the workday does not allow sufficient free time to vote before or after work. Sanctions for non-compliance range from fines to up to two weeks’ imprisonment.
Canada’s federal law applies the same principle, with employees entitled to three paid hours off work to vote. A 1991 decision of the Ontario Court of Justice, in a case involving Ford Motors Company Ltd, clarified that the primary purpose of the Canada Elections Act is compelling employers to enable voting. The case related to Ford’s decision to close its factory early to allow employees to vote, and to deduct the lost work hours from their pay. The court ruled that while preventing employees from voting altogether is a criminal offence, deducting pay for voting hours is a civil matter not a criminal one.
Federal law in the United States does not require employers to give their workers time off to vote. However, many US state laws regulate special arrangements on the matter, with various models:
- Some states define election day as a “legal holiday”, albeit for limited hours or specific categories of employees. For instance, New York and Illinois extend paid legal holidays only to public sector employees, while Wisconsin designates unpaid legal holidays for this sector.
- Various states offer different durations of voting leave, either paid or unpaid, contingent on certain conditions. Among them, New York and Illinois provide two hours of paid leave for private-sector employees if there is insufficient time to vote before or after work.
- Employees in some states must provide prior notice of their intention to take voting leave.
- While most states do not require formal authorisation for voting leave, West Virginia is an exception.
- Different obligations or sanctions may be imposed on employers for violating the law, which can range from fines (in New Mexico and Arizona) to the revocation of an operation license (in New York and Colorado).
- Some states, namely Oregon, Washington, Mississippi, and Connecticut, do not impose legal voting leave requirements on employers.
Is an Election Holiday an Effective Means of Boosting Voter Turnout?
Studies have shown that many factors influence voter turnout, including the existence or absence of mandatory voting, accessibility to polling stations, and social norms. However, the application of each variable differs across countries, with enforcement mechanisms ranging from symbolic fines to more stringent measures like denial of passport renewal (for non-compliance with mandatory voting). Furthermore, the combination of these variables within a voting model impacts overall voter participation rates.
Despite the differences, some research suggests that highly educated or high-income employees are more likely to vote compared to those who are unemployed or employed in low-skilled jobs. This trend is echoed in data from Israel, where minimum wage employees, particularly in retail, often prefer working on election day holidays when they can earn commissions from increased customer traffic, on top of their double pay. On the other hand, research establishes that social pressure is an effective way to increase voter participation. Accordingly, employees taking a break during the workday to vote may encourage their fellow workers to do the same.
Accessibility of Voting as an Alternative to Work Leave Dilemma
Enhancing voting accessibility is vital for increasing election participation and mitigating the need for workers to miss valuable working hours. There are various ways to make the process user-friendly, as outlined below.
Early voting, postal voting, proxy voting, and mobile ballot boxes
38 US states offer postal voting to workers, while 46 states offer early voting options or both. The Netherlands and the UK allow proxy voting; the UK also allows postal voting, and both Denmark and Norway allow early voting. Canada enables both early and postal voting.
The right to vote while residing abroad
Many countries allow overseas voting but apply different preconditions for exercising this right. 124 countries enable voting from abroad in legislative elections, 88 allow it when voting for the presidency, and 74 countries enable overseas voting in referendums. Israel, in contrast, is very territorial and enables overseas voting only in exceptional cases (eg, for military personnel, sailors, overseas government employees, etc).
The Use of Digital Solutions Can Alleviate the Need for Voting Leave
Given the technological advancements and globalisation of the modern labour market, exercising the right to vote could be simplified and made more convenient through digital means. The rise of hybrid work models, increased employee mobility, and the ability to conduct most transactions online provide an opportunity to implement convenient and safe online voting options, either partially or fully, in addition to in-person voting and other accessible methods. However, very few countries have embraced digital or electronic voting systems so far. Estonia is a pioneer in online voting, first introduced in 2005. The United Arab Emirates implemented online voting in 2019, New Zealand in 2020, and Switzerland and Australia transitioned to online voting in 2022. Canada is gradually moving to online voting. Electronic voting is used with identification methods in France, the United States, Belgium, and India.
Revising Old Election Models to Align With National Goals and Public Needs
Traditional election models designed for past needs require a critical review. Take the United States’ Tuesday election tradition, established in 1845 to accommodate farmers’ work schedules. Today, this system falls short for the vastly different American workforce, where many worker groups need encouragement to vote. Similarly, mandatory voting, proven ineffective, has been abolished in several countries over recent years.
Israel’s electoral system requires significant reform. While aiming for high voter turnout, it incentivises low-wage earners to prioritise “double pay” over voting. This undermines the system’s effectiveness. Furthermore, Israel should take advantage of the substantial investment in its Biometric Database and the advanced roll-out of mandatory biometric identification, with 60% of the population already registered. Leveraging this infrastructure, Israel could implement a secure and convenient digital voting model. Delaying such a move not only weakens Israel’s image as a technological leader but also wastes valuable working days, adding to those already sacrificed due to security and emergency special measures. Considering the dominant global presence of Israel’s high-tech sector, increased flexibility, particularly for overseas voting, is crucial.
Dafna Shmuelevich & Co. Labor and Employment Law office
