Ruling: State workers allowed paid leave to vote in most elections
State employees have a right to be paid when they take time off work to vote in an election, a state judge in Santa Fe ruled Wednesday in a case that could have consequences for workers in private businesses, nonprofits and government agencies.
The decision resolves for now a lawsuit challenging a policy allowing New Mexico government workers to claim paid administrative leave while voting in most elections — but not local races. It was filed last month by two state employees just days before the first round of polling in Albuquerque’s mayoral race.
The lawsuit argues that the workers effectively would be penalized for taking time from work to vote in the city election because they would lose either pay or vacation time.
First Judicial District Court Judge David Thomson said the state government’s voting leave policy must extend to municipal elections.
But the case raised bigger questions beyond the state’s personnel policies, becoming instead a broader test of the rights of New Mexico voters and whether employees — in the private sector and the public sector — are guaranteed paid leave when taking time from work to vote.
New Mexico law says a voter “shall not be liable to any penalty” if he or she takes up to two hours off work to cast a ballot on an election day. But the law does not apply if an employee’s workday begins more than two hours after the polls open or ends three hours before the polls close.
Lawyers for the State Personnel Office argued that the law does not expressly require employers to pay workers while they are voting. “A penalty is much different than not being paid for time not worked,” the office said in one of its filings in the case. Thomson disagreed. The state government formerly allowed employees to claim administrative leave for voting in any election. But in 2014, the State Personnel Office altered the policy, ending the practice of providing paid leave for workers to vote in local elections. The office said there is no easy way for it to verify whether employees who claim the paid leave actually voted in local races, such as for mayor or city council.
While the Secretary of State’s Office keeps records of which voters participate in statewide elections, it does not keep such records on local races.
And some New Mexico government workers have abused the voting leave policy, the State Personnel Office has said.
The office conducted an audit after the 2014 election and said 243 employees across 50 agencies in the executive and judicial branches of state government had claimed administrative leave to vote but never cast a ballot. State Personnel Office Director Justin Najaka told the Albuquerque Journal in 2015 that 42 employees who claimed administrative leave in 2014 were not even registered to vote.
A few years earlier, the office had accused 721 workers of claiming administrative leave for the 2010 election despite never casting ballots.
One of the workers who filed the lawsuit, Daniel Secrist, an employee at the Museum of Natural History and Science as well as a leader in a workers union, Communications Workers of America Local 7076, drew on his annual leave to cast a ballot.
During a hearing Tuesday on the case, Judge Thomson suggested that having to use a benefit like vacation time to vote amounts to precisely the sort of penalty prohibited by law.
Workers, he said, would be left wondering, “Do I have the annual leave to go vote? Do I need that leave for some other reason?”
The following morning, Thomson issued his ruling, citing the state constitution and ultimately suggesting the case goes to the heart of New Mexico’s efforts to protect voters exercising their democratic rights.
“The decision supports this fundamental right encouraging people to participate in democracy,” said Shane Youtz, a lawyer for two workers unions, Communication Workers of America Local 7076 and the American Federation of State, County and Municipal Employees Council 18.
Unclear is whether the state might appeal. A spokesman for the State Personnel Office did not respond to a request for comment.
The law may seem unnecessary in a time when voters have more than one day to cast a ballot in an election. Many participate in early voting or cast their ballots by mail. Voters in some places, such as Santa Fe and Albuquerque, are no longer limited to a specific polling station on an election day but instead can cast a ballot at any designated polling site in the city or county.
Other states have what are known as “pay-while-you-vote” laws. Arizona, for example, gives workers three paid hours at the beginning or end of their shift to vote on an election day. Texas allows what the law describes as “sufficient” paid time off to vote.
If the state of New Mexico appeals Thomson’s ruling and the case goes to a higher court, it could set a precedent for workers beyond state government and clarify rules in a section of law that attorneys for the State Personnel Office say is ambiguous.
“This is an issue probably most appropriately addressed a few blocks away,” Christopher Saucedo, a lawyer for the office, told Thomson on Tuesday, referring to the state Capitol a few blocks from the courthouse.