One employment law topic that is rarely discussed is an employer’s legal obligations (and an employee’s legal rights) when it comes to employee voting rights in elections, be it municipal, provincial or federal.
Constitutional Rights to Participate in an Election
From a broader perspective, the Canadian Charter of Civil Rights and Freedoms provides everyone in Canada the constitutional right to vote in an election. In fact, section 3 states the following:
“Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”
This means that constitutional law guarantees all Canadian citizens the right to participate in elections (i.e., the democratic right to choose their government), including the right to vote in federal, provincial or territorial elections, along with the right to stand for public office themselves.
Employee Voting Rights in Elections in Ontario
Under Ontario’s provincial Election Act, every employee who is qualified to vote is entitled to three (3) consecutive hours to vote while the polls are open. Generally, polls are open on polling day between 9:00 a.m. and 9:00 p.m. Specifically, provincial election legislation states:
Employees Serving or Voting at an Election
Time off for employees to participate in election
Leave
(1.1) Every employer shall, on an employee’s request made at least seven days before the leave is to begin, grant the employee leave to perform his or her duties under this Act; the employer shall not dismiss or otherwise penalize the employee because the employee has exercised the right to be granted leave.
Remuneration
(2) The employer is not required to remunerate an employee for any leave granted under subsection (1.1), but such leave shall not be subtracted from any vacation entitlement.
Employees to have three consecutive hours for voting
(3) Every employee who is qualified to vote shall, while the polls are open on polling day at an election, have three consecutive hours for the purpose of voting and, if the hours of his or her employment do not allow for three consecutive hours, the employee may request that his or her employer allow such additional time for voting as may be necessary to provide those three consecutive hours and the employer shall grant the request.
Deduction from pay prohibited
(4) No employer shall make any deduction from the pay of any employee or impose upon or exact from the employee any penalty by reason of his or her absence from work during the consecutive hours that the employer is required to allow under subsection (3).
Time off best suiting convenience of employer
(5) Any time off for voting as provided in subsection (3) shall be granted at the time of day that best suits the convenience of the employer.
Similarly, under federal law, the Canada Elections Act provides the following legal protections for employers when it comes to voting in elections:
Time to Employees for Voting
Consecutive hours for voting
131(1) Every employee who is an elector is entitled, during voting hours on polling day, to have three consecutive hours for the purpose of casting his or her vote and, if his or her hours of work do not allow for those three consecutive hours, his or her employer shall allow the time for voting that is necessary to provide those three consecutive hours.
Time at convenience of employer
(2) The time that the employer shall allow for voting under subsection (1) is at the convenience of the employer.
No penalty for absence from work to vote
133(1) No employer may make a deduction from the pay of an employee, or impose a penalty, for the time that the employer shall allow for voting under subsection 132(1).
Hourly, piece-work or other basis of employment
(2) An employer who pays an employee less than the amount that the employee would have earned on polling day, had the employee continued to work during the time referred to in subsection 132(2) that the employer allowed for voting, is deemed to have made a deduction from the pay of the employee, regardless of the basis on which the employee is paid.
Prohibition
134 No employer shall, by intimidation, undue influence or by any other means, interfere with the granting to an elector in their employ of the three consecutive hours for voting, as provided for in section 132.
So, What are an Employee’s Voting Rights in Elections During Work Hours?
Most importantly, election law provides that if an employee is scheduled to work during voting hours, an employer must provide employees with three (3) hours of paid time off work to vote in an election.
For example, if an employee is not scheduled to work for three (3) consecutive hours that fall within regular election voting hours, an employer is not required to provide them with paid time off from work. If, however, an employee’s work schedule does not allow for three (3) consecutive hours that fall within regular election voting hours, the employer must provide the employee with additional time to vote, if requested. In those cases, an employer has the discretion to schedule the voting time off at a time that is most convenient to the employer, but must always ensure they comply with an employee voting rights in elections.
Similarly, an employer is required to grant an employee unpaid leave to perform their duties under the Election Act (e.g., as a returning officer or a poll official), as long as the employee makes the request at least seven (7) days before they begin their voting leave. Obviously, an employer is not allowed to retaliate against the employee because they exercised their right to participate in elections, such as terminating their employment (wrongful dismissal), nor are they allowed to subtract from an employee’s vacation entitlement. This is a crucial part of employee voting rights in Ontario, as without providing employees with incentives to participate in democracy and not lose pay, many employees would be reluctant to take time off work.
Consequences of Employers Violating Employee Voting Rights
In Canada, both federal and provincial election law outlines serious consequences for any company interfering with an employee’s right to their three (3) hours to vote in an election, or otherwise to serve as a worker elections. For example, if it is necessary to provide an employee with time off work to vote in an election, there must be no reduction in the employee’s pay and they must not be penalized.
Under the Ontario Election Act, the law provides that any person who, inside or outside Ontario, prevents another person from voting or otherwise interferes with that person’s exercise of the vote is guilty of an offence and may be liable to a fine of up to $5,000. Should a judge find the person knowingly committed the offence, the employer may additionally be liable for a fine of up to $25,000, up to two years less a day of imprisonment, or both.
Similarly, the Canada Elections Act states that, when necessary, employers must comply with the 3-hour rule to allow an employee to vote in an election, and not reduce their pay (or penalize them in any way, such as termination of employment). This means that employers are prohibited from interfering with the granting of three consecutive hours to vote, such as by intimidation or undue influence. Under federal election law, this rule applies to employees who are paid on a piece-work basis, in which case, they must be paid for a full day’s work as if they had not been given time off to vote. Importantly, employers who fail to provide time to vote, or who deduct pay from employees who take time off to vote, are liable to a fine of not more than $2,000 or to imprisonment for a term of not more than three months, or both.
In Ontario employment law, it is important for employees to consult with an experienced employment lawyer when they would like to know what legal rights they have when it comes to participating in an election, whether as a voter or public servant. If you are an employee who believes you were wrongfully dismissed as a result of exercising your right to vote in an election, please speak with our experienced constructive dismissal lawyer in Toronto regarding your legal rights and options as an employee, including negotiating your severance package to obtain the severance compensation you deserve, as well as constructive dismissal claim.
Contact a Toronto human rights lawyer by phone 647-822-5492 or fill out the contact form to the side. Our employment lawyer in Toronto would be happy to assist in your employment law matter as quickly as possible.
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