### GENERAL THE ATTORNEY

OF TEXAS

CRAWPORO c. MARTIN AUSTIN. 'l-xcx~s VI3711

*TroaRN6x OEmmaAl. 

### April 7, 1967

Hon. Charles H. King, Jr. Commissioner Opinion No. 

### M-53

Bureau of Labor Statistics Austin, Texas Re: Under the stated fact situation,whether an employeemust be glven time off to vote while engaged in working overtime hours at his request, and if the employer is compelled to allow the employee sufficient time off to vote, is the employer required to cpmper)-

De&r CommissionerKing: sate him at the overtlrpe wage rate.

You have requested an opinion of this office concerning the above captlonedmatter under the following set of faats:

"An employee, upon arrivingat work on electlon day, Indicates his desire to work overtime, should overtime be necessary, for that particular day. This particular employee then works his regular eight hour8 and is subsequentlyoffered
a chance to work several additionalhours overtime as he had previouslyrequested. The employee accepts the overtime and then works for two and one-half hours during the overtimeperiod up to 

### 6:30p.m. The employee then requests that his employerpermit him time off to vote in a local election and that he be compensatedat the overtime rate during his absence while voting."

Article 209, Vernon's Penal Code provides as follows:

"Whoever refuses to an employee entitled to vote the privilege of attendlng the polls, or subjects such employee to a penalty OT deduction of wages because of the exercise of such privllegeX shall be fined not to exceed five hundred dollars.
This statute was originallyenacted a8 a part of the Terre11 Election Law in 1905. Since its enactment,the statute has not been before an appellate court of this state for constructionor

- 242 -Hon. Charles H. King, Jr., page 2 (M-53 )

application. In Attorney General'sOpinionV-1532 (1952), this office held that an employer Is not required to give an employee time off to vote where the employee has sufficienttime to vote outside his working hours. If an employee does not have sufflclent time to vote outside his working hours, It would be a violationof the statute If his employerdenies him additional time as Is necessaryfor exercisinghis privilegeof attending the polls. Sufficiencyof time was held to be a question of fact dependingupon the circumstancesIn each partlcirlar oasei

In light of this holding, If the employeeunder the facts stated In your opinion request had sufficienttime to vote outside his working hours, the employerwould not be required to allow the empl'oyee to leave his employmentfor the purpose of voting.

Should the employee not have sufficienttime to vote outside his working hours, the employernormallywould be required to permit the ~employee sufficienttime off to attend the polls without any deductionof wages because of the exerclse.ofthat privilege. Attorney General'8OpinionV-1532 (1952). However, under the stated facts the emp,loyee would have had sufficient time to vote after he had completedhis normal working hours at 4200 p.m..,

and the employerwould not have committeda violation of the statute had he refused to give such employee time off to vote during his normal work period. Since the employee was not being required to work beyond 4~00 p.m., he was free thereafter to exercise hls freedom'ofchoice to vote or not to vote.' Therefore, It Is the opinion of this office that, when the employee voluntarilyrequested to be permitted to work overtime hours beyond 4~00 p.m., he elected to work such additionalhours as the employer deemed necessary In providinghim the opportunity. In making such election the employee exercisedhis freedom of choice of attending or not attending the polls, which is the right createdby the statute. The employerhas not denied the employee the privilege of voting because unquestionablythe employee had that right until, by his own action, he relinquished it by requesting the overtime work for his own pecuniary benefit, Instead of using this time to exercisehis privilege of voting. In making his election the employeehas accepted the privilegeof working the additionalhours on the terms and conditionsoffered by the employer,and should not thereafter be allowed to revoke his action as the employerhas the right to rely upon this acceptance in planninghis work schedule,production requirements

and employee complementnecessary for the overtime period. To hold otherwisewould create an undue burden on the employer If he were faced with the possibilityof his work force abandoningthe job after he had planned his work schedule,based upon the employees'assurance that they would be available and working.

- 243 -Hon. Charles H. King, Jr., page 3 (M53 )

With regard to your second question, In view of our holding above It Is clear that the employee In questionwould not be entitled to be compensated,either at his remlar rate of pay or at the overtimerate, should the employervoluntarily permit him to leave the job for the purpose of attendingthe polls. If an employeevoluntarilyrequests to work additionalhours and then requestspermissionto leave his employmentto vote, he Is attending the polls on time which Is outsidehis re ulred * working hours and for which, in any event, he Is not en to any compensationfrom his employer.
Conversely,If at the employer's election,he requires his employees to work additionalovertime hours and such employees do not have sufficienttime to attend the polls outside of their normal and overtimeworking hours, the employerwould be required to allow these employees sufficienttime off to vote, should It be requested,without any deductionfrom their wages because of the exercisingof such privilege. In this situation It would make no differencewhether the employees
were permitted time off during' their re@lar working hours or their overtime hours as their total compensation would be the same, as If they had not taken time off to vote.

SUMMARY

Under the stated facts, Article 209, V.P.C., does not require an employee to be given time off to vote while working overtime hours that he had voluntarilyrequested. If the employervoluntarily permits such employee time off to attend the polls, during such overtimeperiod, the employee Is not entitled to be compensatedfor such time, either at his regular rate of pay or at the overtimerate.

Preparedby Robert W. Norris AssistantAttorney General

APPROVED: OPINION COMMI'ITEE

Hawthorne Phillips,Chairman W. V. Geppert, Co-Chairman

- 244 -Hon. CharlesH. King, Jr., page 4 (M-53 )

Mary K. Wall Marvin Sentell Lonny Zwlener John Banks

STAFF LEGAL ASSISTANT A. J. Carubbl,Jr.

- 245 -