On Tuesday, Georgia’s primary chaotically illustrated how pandemic conditions are likely to undermine ballot access this year. Already, lower turnout since the outbreak in states like Illinois, Wisconsin, and California has Democrats worried about the coronavirus’s effect on elections this fall. Yet for all of the recent concern, voter suppression in the United States is nothing new; many factors—including a long history of stifling the franchise in working-class and minority communities—have contributed to one of the lowest voter participation rates in the developed world.
One important yet underemphasized voter barrier for working-class Americans remains the country’s generally inflexible work hours. In most non-union workplaces, bosses exercise total authority to set employee schedules at will, including on Election Day. Because every state save Montana has a default at-will employment system, moreover, employees who resist or shirk Election-Day work duties to vote can be terminated without legal recourse. The resulting arrangement deprives millions of workers of a practical opportunity to vote. According to one Census Bureau survey, 14.3% of registered voters who failed to cast a ballot in 2016—over 2.7 million people—cited busy schedules as their primary reason for not voting. Considering that just 80,000 votes across three states separated Hillary Clinton and Donald Trump in the Electoral College, lack of this time off for workers can prove extremely consequential.
So far, twenty-six states have passed laws guaranteeing employees the right to go vote on Election Day during work hours. Most of these laws, however, impose only criminal penalties on violative employers or offer no express legal remedy. Because criminal law relies heavily on both civilian reporting and prosecutorial discretion, current criminal protections face serious enforcement challenges. Civil suits, which are employee-led and offer the prospect of damages awards, could prove more enforceable, but no state has expressly adopted a civil remedy to protect this right. While Democratic politicians have proposed ambitious reforms to free up workers’ Election Day schedules in other ways, Republicans’ ongoing assault on voting rights makes passing legislation unlikely in the short term.
In the face of this gridlock, voting rights advocates may be able to harness state tort law to strengthen workers’ right to vote during work hours through the courts. In particular, the tort of wrongful discharge in violation of public policy could serve to establish civil protections for employees who leave work in order to cast a ballot.
Under the common-law doctrine of wrongful discharge, employers are liable for damages if they fire workers for reasons that contravene recognized public policy goals. While courts differ substantially in how they define “public policy,” most look to the overall goals of existing statutory law, particularly when employer actions may impact public institutions or “strike at the heart of a citizen’s social rights, duties and responsibilities.”
To offer a classic example, in Nees v. Hocks, 536 P.2d 512 (Or. 1975), the Oregon Supreme Court deemed a worker’s termination wrongful when her employer fired her for leaving work to participate in jury duty. Acknowledging the “general public concern” in ensuring the proper functioning of Oregon’s constitutionally mandated jury system, the court held that the discharges for “such a socially undesirable motive” merited an exception to the at-will rule. In the years since Nees, courts have recognized public-policy violations for the purposes of wrongful discharge claims on a case-by-case basis, using the tort to protect statutory schemes on matters such as workers’ compensation, court access, and employee privacy.
To date, no courts have applied the wrongful discharge tort to protect employees who take time off to vote. In one of the only cases to address the question, the Texas Court of Appeals actually ruled against recognizing a private cause of action, noting that only the state supreme court held the power to expand the tort.
Nonetheless, electoral participation possesses core hallmarks of the kind of cognizable public policy interests that animate wrongful discharge claims. Like jury duty, access to voting impacts the proper functioning of a fundamental political institution. Election outcomes almost certainly constitute a “general public concern” and involve citizens’ social rights and obligations to the community. As a legal institution, as well, the electoral process is enshrined in state statutory and constitutional law. As noted, twenty-six states have already expressed a pellucid public-policy goal of ensuring workers time off to vote through criminal law. Thus in many states, strong public policy grounds may exist to recognize parallel civil protections through the wrongful discharge tort.
Already, courts have deemed employee terminations violative of public policy when they undermine other forms of statutorily protected political engagement. In Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481 (Cal. 1946), the California Supreme Court held that employees could maintain a wrongful discharge action after they were fired for political activity. Justifying its decision, the court pointed to the public policy goals articulated in California Labor Code § 1101, which made it a misdemeanor for employers to prevent workers from “engaging in political activity.” Numerous states, such as Louisiana, have cited similar laws protecting political engagement to hold employers liable after they fire workers for launching political candidacies. Since what constitutes “political engagement” remains vague, voting rights advocates could argue that taking time off to vote falls within the ambit of these statutes and likewise merits civil-law protection.
Kunkle v. Q-Mark, Inc., No. 3:13-CV-82, 2013 WL 3288398 (S.D. Ohio June 28, 2013) offers perhaps the clearest roadmap for applying the wrongful discharge tort to protect time off to vote. The plaintiff in the case, a former Q-Mark employee, sued the company under a theory of wrongful discharge after she was terminated for declaring at work that she had voted “straight Democratic” in the 2012 election against the store manager’s wishes. Recognizing the plaintiff’s cause of action, the district court reasoned that the Ohio legislature had evinced a clear public policy goal in passing Ohio Rev. Code § 3599.06, which imposes criminal penalties on employers who threaten or coerce workers into voting a particular way. Crucially, § 3599.06 also punishes employers for terminating workers who take a “reasonable amount of time to vote on election day.” While the issue of time off to vote was not addressed in the case, Kunkle strongly signaled that Ohio courts could guarantee civil remedies to protect leaving work to vote by way of the same statutory provision.
Even in states without explicit legislative protections, courts could turn to the Constitution to expand the wrongful discharge tort to cover voting during work hours. In Novosel v. Nationwide Insurance Co., 721 F.2d 894 (3d Cir.1983), the Third Circuit held that Pennsylvania employers may only discharge a worker for political speech when the employee speaks on matters pursuant to his or her official job duties. Citing Supreme Court precedent on public employees’ First Amendment rights, the Novosel court argued that the existing case law expressed a public policy goal of protecting political debate from undue employer influence. Under Pennsylvania law, the court concluded, the First Amendment provided ample public policy basis on which to apply tort discharge protections to cover private-sector workers’ political speech. Since the Supreme Court has recognized voting as a protected right under the First and Fourteenth Amendments, Novosel’s reasoning could lead courts to acknowledge a similar, constitutionally based public policy goal in ensuring voting rights that could also warrant discharge protections.
To be sure, establishing a civil remedy to protect time off to vote would prove challenging in court. Commentators have noted that judges by and large apply the wrongful discharge tort narrowly, wary of overstepping the will of the legislature. Many courts are thus likely to resist expanding tort law into the electoral sphere, where policy change proves especially contentious among members of the political branches.
That said, current case law offers a strong basis on which to push courts to protect Election-Day voting for workers. By expanding the wrongful discharge tort, courts can advance some of the core policy interests at the heart of state and federal election law. Doing so would enable the common law to serve as a flexible and adaptive tool for promoting public norms, as judges have traditionally intended. More importantly, shielding workers from retaliation for voting would all-but enshrine the right to electoral participation in employment contracts, expanding ballot access to millions of working Americans who lack sufficient bargaining power to secure the right on their own. While common-law solutions inevitably pale in comparison to many lawmakers’ sweeping legislative proposals, small judicial fixes such as this one could make all the difference in the close elections to come.