Opinion No. (1979) ( 1979 )

Dear Director Clark,

The Attorney General is in receipt of your request for an opinion wherein you ask the following question:

"Must a state agency grant an employee two hours to vote without aloss of compensation between the hours of 8 a.m. and 5 p.m. on anelection day?"

Title 26 O.S. 7-101 (1978) provides:

"Every corporation, firm, association or individual hereinafter referred to as ``employer' who, on election day, has a registered voter employed or in his service, shall grant said employee two (2) hours of time during the period when the election is open in which to vote, and if such employee be in the county or at such distance from the voting place that more than two (2) hours are required in which to attend such elections, then he shall be allowed a sufficient time in which to cast his ballot. No such employee shall be entitled to such time to vote unless he notified orally or in writing an employer's representative of his intention to be absent, on the day preceding the election day. Upon proof of voting, such employee shall not be subject to any loss of compensation or other penalty for such absence. Such employer shall select the hours which such employees are to be allowed in which to attend such elections, and shall notify each of the employees which hours they are to have in which to vote. This section shall not apply to an employee whose work day begins three (3) hours or more subsequent to the time of opening of the polls, or ends three (3) hours or more prior to the time of closing the polls. The employer may change the work hours to allow such three (3) hours before the beginning of work or after the work hours. This act shall not apply to school board or bond elections. Any employer who fails to comply with this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined not less than Fifty Dollars ($50.00) nor more than One Hundred Dollars ($100.00)."

The intent and meaning of 26 O.S. 7-101 is plain and clear by a reading thereof. Succinctly, employees are to be allowed two (2) hours within which to vote and they are not to be penalized nor subject to loss of compensation for their absence. The employee is required to give notice to his employer of his intention to be absent to vote, and the employee is likewise required to show proof of voting. An employer may select the hours within which his employees are to vote and must notify his employees of their respective time period for voting. If an employer chooses, he may change the work hours on voting day so the workday does not begin until three (3) hours or more after the polls open or shorten the workday so that it ends three (3) hours or more prior to the time the polls close.

Since 6 O.S. 7-101 insures that employees have an opportunity to exercise their constitutional right to vote without the loss of compensation or the fear of being penalized, the word "employer" applies to any employer including the State of Oklahoma. The Attorney General is aware that for some purposes the terms corporation, firm, association or individual have been held not to apply to a state, however, as used in the Election Code of Oklahoma, 26 O.S. 7-101 (1978), the State is an employer.

It is, therefore, the opinion of the Attorney General that yourquestion be answered as follows: A state agency is not exempt from theprovisions of 26 O.S. 7-101 (1978) which applies to public employers aswell as private employers.

JAN ERIC CARTWRIGHT, ATTORNEY GENERAL OF OKLAHOMA

MICHAEL JACKSON, ASSISTANT ATTORNEY GENERAL