                                                                                                                                       -. .




                            TEXIEA~OKNEY                                                     GENERAL.
                                                         oe-rExAs                                                       .
    .                                                   Au-                1s. TEXAE
        PRICEDANIEL
        ATTORiaY GENERAL
                                                              October        27,             1952
                                                                .

                 Hon. -Sam i. Davis                                      Oplniah             NO+            .V-:-$532
                 Dlst~lct  Attorney
                 HQIMton;  Te.xas                                  He’: ‘Necessitg. that ati ~eniployer
                   .I                                                    allow employims tlma off
.                                                                        to vote .uhen the employees
                                       .                                 have sufficient     time to
                ,Dear Sk                                               .’,vote’ outs+    w,o,+lng
                                                                                             .    hours.
                                                                             .*a.,
                           . kou hi&                          r.aquegted. in’ op&i&i en’the “&U.~U-                                           ’
                $iig ~ques~loa:
                                 ‘l!Doei Article 209 Qf ttie’ Tekas P&k"
                           C.ode .require an employer to give ari em-
                           ployee’. t~lme off to vote, either with’or :
                           without ptiy, where he har sufflci,ent     *line
                           to vote out ~1~~ hi a wprki$@ houre?*1
                                                       . .:.;... ,,.’
                                 ArtlOle @W,.; Perkon* 8 Penal C’oaO;- reads8
                                 Whbever .bef&s       to ai em~loj& ei- i ‘.
                       ,-titled     to %ote the prlvlle&e      of attending
                         the :f. oils,  or subjects     suoh,e   loyee to a
                         pev ty;or,. deduotiQn of ‘wages “%acause of. the
                         eZeroise.‘3f.   s\rc& privilege,    .shall, be fined
                         not to exc6ed -five’ ‘huMred dollars. *
                                                                             .
                                The s6atkte declares’ tk ofidlirbs~;~..naae~yr
                  (1)    refusl     an. employee ,the prltllege   of atteridlng.. ~.
                  the .polls;    ( 1 sub ectlng the employee. to ‘a’ deductI&
                  of wiges be.cause
                                 ’      cd .the exercise
                 .Thus. it is. seen t@t the p$vllS
                  ma exeralse without deduction .o wage&under t
                  OK olaose of, the 4tatute ..ls’ Idetitt’icaX’SrIth. the rlvi-
                  lege granted UadrL’t& fir&t, cl@uJe. ,~Z$ Under t ii e ~.
                  f lrst. claUs& th+ tiWloj;rr $ouid :b,a .e.atifled to demand
                  tlnm oif from work in order,       to vat& ‘by virtue   of ‘the
                ‘seaond blade       the crmployer could noi atike a deduction
                  froiabid fiiy beoaud) of suoh ab~sence.
                                                                                      I
                                  The           ‘only.,questlon                  to          be            cob3e&d          h&e   is
                 *whet’fier b;$tlcli’209 aeans that ti BapiIojer..ln all ‘..                                                           :
                 cases. must permit hls”Wployee’s     tij irot? during, work-
                 ing hours or k&ether ‘It means only t@at*‘an: kmplzoyer
                                                  /’



                                                                                                  .         ;   t...’
                                                                                      ‘P,.            h,
                              .    .       ‘,    ‘l’.   :..     -   *.       .
            .

hon. Sam W. Davis,     p&e   2   (V-i532),


cannot reiuse to allow an employee time off If by such
a refusal the employee would be deprived of an oppor-
tunlty to vote,
            In Attorney Wneralls   Opinion O-6242 (19441,
one of the questions presented vas whether an employ-
ee working only a part of the tllm, the., polls ar4. open
on election   day 1s entitled  to absent himself from his
job for the purpose of voting.     A further qu6stlon was
whether the employme 1s privileged     to. leave his .Job in
order. to vote at any time he de~slres or whether the
employer Is within his rights In prescribing       the time
allowed during the day for tha’t purpose.       In answer
to the first   question,  it was stated that an employee
Is entitled   to absent himself from. h@ job for a’rea,i
sonable time, for the purpos4 gf voting, as explalned~
In the answer to the oth@ qusstlon;       which stated:~
               *‘Bearing In mind that our bolls are
        open until 7rOO P.M. that a statute
        should be Interpreted       by its equity, and
       of’ the Interdependence       of employer and
        employee in our Industrial        alvllleatlon,
       It la our opinion that’ an employer Is,
       within the statute and his rlghts~ In preL
        scribing    the time allowed durjng the day
       for the purpose of voting.          The time al-
       lowed should be sufficient         and fair so as
       to fully and completely permit the em-
      .ljleyee to exercise       his suffrage.      Such    . ‘~
       regulations      would vary according to local
    : aondlt$ons;       but it ‘should give the employ-
       ee ampke and convenient tire within which
       to vote.m             . .                                     ..
              !!e think the opin&i       was Intended tb’mean
that an employee Is entitled          to. a reasonable length of
free time during polling hours and .that if he will have
sufflclgnt      free,tlme   to vote 6nly by tinking a Dart ~of
hi.8 working -day9 the em ofer mmst allow him to take
off enough tlms to enabp”        e him to ittend the polls while
they’ are open.        The opinion went ‘on to say that the
amount of time which must be allowed will vary accord-
ing to local conditions.           We think the term “local   con-
ditions” was Intended to Include all the varlouo fao-
tors which would enter Into the time which should be
allowed ln each particular          case, one of which would be           ..
the amount of time the employee had frse bifore’ or af-
t’er vork.
                                                                                      .’
       Hon. ‘Sam3/.~iavls,          page 3     (V-1532)


                    #a v, Day-Brlte~     Llm                              220
      &Wad 782%4o.A;;.      1949) , the cpurt               had befoGi    It a
      st,atute which read:.
                        “Any perron entitled       to vote at anf
                 eleotlon    In this state shall        on the day
                 of ,moh elect~lon, be entitled .to absent
                 himself from anjr.sel?vlces or emplo ent
                 In which he Is theii engaged or empp”         :.oyed.,
                .fo.r a pe’rlod.of     four houm between the
                 times of opening and closing the polls;
                 and such-‘voter ishall. ‘not, because of so.
                 absenting himself,’ be, liable        to any pen-
                 alty:     Provided, however, &hat his em-
                 ployer may specify the hours diirl’ng
                which such employee may absent himself ”                  :’
                 as aforesaid.       Any person or, corporation            ‘.’
                who shall refuse to any employee, the
                 privilege    hereby conferred,       or shall dls-
                 charge or threaten to:dlscharge           tiny em’-
:
-
     ~‘.
    .. .         ployee for absenting *himself from his..
                work for the purpose of.sald           election,
                 or shall cause any employee to suffer
                 any penalty or deduction of’.wages be-
                 cause of the exercise         of such privilege,
                 or who shall;     directly     or indirectly,
                 violate    the provisions      o$ this section,
                 shall be deemed guilty of a misdemeanor,
                 and. on .convlttlon      thersof be ,f lned In
                ~~,a~      snot e,xceeding five hundred dol-
                                    .,
                       The court constrned 4& sfat&Zto           mean that
           an employee itaa entitled, to’abseiit    h$iaself from wo.pk
           for a aufflclent     ,length Of time to give’ him f@r fi?ee
           hoate d-lag, tttd plrlo&::t~tL~e      pollb wese dpdn; #a-t
                       ,I . . i Gne ‘theory advadcbd Is that           .’        ‘.
                 under   this section the employee .is clnbStl$
                 to four hours! absenos fro@ .&is regular
               ‘working hours on the day of election,          where-
                 as another theory advanced ‘1s th::t the em-,
                 ployee is entitled     to four hoursi time In
                 which to vote during the thlrte~en hour8 ‘oom-
                 prlsing an election     day* This last stated
                 theory     whfch we %hlnk Is correct t meane
                ‘that I? the ,employee+s regular working day
                 leaves him at least four coilsacutlve        hours
                 on election    day during whtch he would not
                                                            :
.




        Hon. Am Wi Davis,        paga 4   (v-1532)


             be engaged in actual seixlce     to his es-
    .        ployer,  the object and the ,gurpose ,of.
             the statute has been met ,, and such em-
             ployee Is not entitled    to be absent from
             his rcgula,r working hours at’ all; or, if
             such time when the employee’&      not. ac-
             tuall$&n:age+    in service to his employ-
             er is less than four hours .(ln this.aase
             two and, one-half hours), the employer
             shall permit the absence of -the employee
             from his services   for a sufficient    time
             (In this case one and one-half h6urs) to
             ma up four full ho&e.,       e ‘. et’
                        The. cou& stated the purpose   of the M.ssouri
        statute       In $bo following  ,Sang*age:
             .
                 ~. “That every c9Mrm -#hoaM be given
                  !




            both the ‘iight ‘and the ‘oppotitunfty to
           ‘vote .id a matter of publia intere~st, aad
                  law having for &t$ purpose the iuar-
                 aY’
            ;$o;:dof     6uch -right and opportuhlty
                          npheld I$ It is    oeslble to do
                                             t
            so0 3uc“R tre take i.t was L J.eglslatlte
                           the enactment of Sectlon-
            m;:”       Pnd the purpose 0~ leglslatlre
                                                                          ,.

            Intent    wad not to financially     enrich the
            voter or to place an unnoae@rary and M-
            rgtisonsble burden on the rmoyer.            i a .c
                                                                 1
     Xhlle the Toxaa statute does not-fix           the letigtti’of     time
     which is aonrldered sufficient         f@r 3otingi the purpose
     of these :tw~: rtatutos       IS the ~ry.~   The essential       dii-
     ~$orettcr~   etvoea tbr Xls#ourlrtatutr        apd the Wxas stat-
     citr,.ls. tL t the Gtter makes a detrrainatlon             OS ,the
     t&m tb b8 s;lloMd depend upon the olrcuwtanoss                  in each
    .putiOular       oaaa, euch aa the a#uat of time available                 ,
      uatr¶Arv&jag h-s, the dilltLrvar the employee mU&%
     travel %a reruh’ tM polling, pla&a +nd the time required                           .
     for traversing       the distance:by   available   nodes of travel,           ..
     congestion at the polls,         eta.

                                                        t Is not rsqalrid
                                                        ro the employee
.




        Hon. Sam’Wi Davis,          page .5   (V-1532)


        oi ~attendi~         .the polls   or if ‘wage.s”are deducted   Sor
        such additI,onal   klme. gufficiency    of time is, of,
        course,, a ‘question of’ fact deperfding upon the olrcum-
        stances   izr eeoh particu+r          aase.
    .
             :
                                          &g&g&g ‘~-:
             .1
             :)    Artlclfi'i09'
                               v*p&.;‘i&a ndt r&&irr~...                         . .

              an employers
                         .t~ailov anyempltir time dff                                  ..

              to vote whijre .the employee has :Jwflcient
              time to ‘vote outside hi$,vorki          hours.~
        .c



             ,If an elpployee does not have..s 3 ?lclent
              tilae to ‘vote ‘outside. his working hours, it
             would be violative       of Artiale:,209,   V.P .C.,
              for an.F.employer to deny-him $uch additional,
              time as’is necessary to att,ehd the polla
              or to deduct wages for such addltlonal’tine,
             What constitutes      a suffloleht     time for vot-
              ing is e question of fact depending upon
             the. circumstances     ,ti each particular     case .~.
                                                      Pours very truly,      ’
        APPROVED:                                       PRICE DAnfEL
                                l:’~~                 Attorney General
     E. Jaoobson
    .&ecutive   Assistant

                                                          Mary K, Wall
        MIW:vb                                               Asslstant




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