With the election upon us, I thought it was timely to send out this reminder regarding your obligations as an employer to provide time off to employees for purposes of voting.

Under AZ law, an employee is entitled to paid time off, on the day of the election, if there are less than 3 consecutive hours between the opening of the polls and the employee’s start time or between the end of an employee’s shift and the closing of the polls.   In that case, the employee may leave work for that period of time (either at the beginning or end of the shift) that will provide the employee with a total of 3 consecutive hours to vote.

In Maricopa County, polling places are open from 6:00am to 7:00pm on November 4th.  Therefore, if you have an employee who is scheduled to work from 7am to 5pm, the employee can leave at 4pm.  If an employee is scheduled to work from 8am to 6:30pm, you have the option of letting the employee come in at 9am and paying the employee for one hour of time for voting, or letting them go in the afternoon at 4:00 pm and paying the employee for 2 ½  hours.  An employee must apply for voting leave prior to the day of the election.

Yesterday, the 9th Circuit Court of Appeals upheld the enforceability of AZ’s Employer Sanctions Law.  While the employer groups that have been fighting the law vow to continue the fight (perhaps by appealing the ruling to the U.S. Supreme Court), you should assume the law will remain in effect for the foreseeable future.

AZ voters will be presented with an opportunity to vote for an alternative version of AZ’s Employer Sanctions Law on the Nov. 4th ballot (Proposition 202).  The alternative version is an effort to dilute some of the more draconian provisions of the existing law.

According to an 8/8/08 article in the New York Times Business Section (click here for PDF download), the answer is settle, at least if you are the plaintiff.  A study of civil lawsuits showed that 60% of the time plaintiffs end up losing on average $43,000 if they proceed to trial after rejecting a settlement offer. Defendants made the wrong decision less often (21% of the time), but when they did get it wrong the cost was much greater:  $1.1 million.

Ideally you will never be involved in a lawsuit; but if you are you may want to keep this data in mind as you contemplate settlement versus trial options.

A recent California Court of Appeals decision serves as a reminder to employers about the limitations on withholding an employee’s final paycheck.  The case was brought by a former police officer of the City of Oakland, who agreed at the time of hire to reimburse the City for training costs if he left before completing 5 years of service.  The reimbursement agreement authorized the City to deduct any training costs owed from the officer’s final paycheck.  When the  officer resigned after completing only one year of service, the City withheld his entire final paycheck.  The court held that the employer’s actions were unlawful under the federal Fair Labor Standards Act (FLSA), which requires employers to pay non-exempt (hourly) employees at least the statutory minimum wage for all hours worked.  Thus, the police officer should have been paid at least minimum wage for the final pay period worked.

The lesson of this case is clear.  If an employee owes your organization money, you cannot withhold the employee’s entire paycheck as an offset against that debt, even if the employee has signed an agreement authorizing such a withholding.  The employer can, however, reduce the employee’s pay to the statutory minimum wage.

As you may recall, the plaintiff business groups who are challenging Arizona’s employer sanctions law appealed the case to the 9th Circuit Court of Appeals after losing at the district court level.  Last Thursday, the 9th Circuit refused to place a temporary stay on the law pending the outcome of the appeal proceedings.  This means the law remains in effect if and until it is overturned by the 9th Circuit at some future point.  The various County Attorneys and State AG’s office have indicated that with last week’s ruling, they are now free to initiate investigation and enforcement proceedings against employers suspected of violating the law.