WV 2010-18151 August 25, 2010

If a state employee scheduled to work on the Saturday, August 28, 2010 special election day claims paid voting leave, does that employee also get a comparable day off because the election day is a legal holiday?

Short answer: Yes, but the two benefits are not stacked on top of each other. The AG concluded that state employees scheduled to work and actually working on Saturday, August 28, 2010 were entitled to a comparable day off because § 2-2-1 makes an election day a legal holiday. They were also entitled to up to three hours of paid time off to vote that day under W. Va. C.S.R. § 143-1-14.1(f) if they met the rule's procedural requirements, and the three hours used for voting would be deducted from the comparable time-off award.

Disclaimer: This is an official West Virginia Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed West Virginia attorney for advice on your specific situation.

Plain-English summary

After Governor Manchin received the AG's August 24, 2010 opinion on the Saturday special primary election, he asked a follow-up question: do state employees scheduled to work that Saturday get a comparable day off (because election day is a legal holiday), or just the three hours of paid voting leave?

The AG answered: both, but they are not additive. Employees scheduled to work and actually working on Saturday, August 28, 2010 were entitled to a comparable day off because W. Va. Code § 2-2-1 makes the election day a legal holiday. Separately, they were entitled to up to three hours of paid time off to vote that day under W. Va. C.S.R. § 143-1-14.1(f) if they met the rule's procedural conditions (less than three hours of free time during open poll hours, written request to the appointing authority, at least three working days before the election). The three hours used for voting are deducted from the comparable-time award, so the same hour is not credited twice.

The opinion is a brief follow-up to the longer August 24, 2010 opinion (media ID 18146) and reads as a clarification rather than a separate legal analysis.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does this opinion entitle every state employee to a paid day off on every election day?
A: It addressed the specific Saturday primary on August 28, 2010, where employees scheduled to work that day got a comparable day off because the election day was a legal holiday. Most state employees were not scheduled to work that Saturday and therefore did not get an extra benefit (their normal weekend was unaffected). The opinion did not declare a universal stacking rule.

Q: Why are the two benefits not added together?
A: The voting-leave rule lets the employee leave work to vote on election day. The legal-holiday rule entitles working employees to a comparable day off elsewhere on the calendar to compensate for working on a holiday. The three voting hours occur on the holiday itself, so they reduce the comparable-time award by the same number of hours.

Q: What if an employee did not vote during the three-hour leave?
A: The opinion does not address misuse of voting leave. As a practical matter, the leave is granted for the purpose of voting and an appointing authority might want to verify that voting actually occurred, but the opinion does not impose any such verification requirement.

Q: Where does the comparable-day-off rule come from?
A: From W. Va. Code § 2-2-1, which lists holidays. The AG read § 2-2-1(a)(13)'s declaration that an election day is a "legal holiday" as enabling the standard practice that an employee who works on a legal holiday is entitled to a comparable day off. The opinion does not point to a specific statutory section that explicitly grants comparable-day-off rights, but treats the holiday status as sufficient.

Background and statutory framework

This opinion is a short follow-up to the August 24, 2010 opinion (media ID 18146) addressing the same Saturday special primary. The earlier opinion held that Saturday, August 28, 2010 was a legal holiday under § 2-2-1(a)(13), the holiday did not transfer to Friday under § 2-2-1(b)'s weekend-transfer carve-out, and employees working that Saturday were entitled to up to three hours of voting leave under W. Va. C.S.R. § 143-1-14.1(f).

The Governor's follow-up clarified the practical question of whether the legal-holiday status entitled working employees to a comparable day off. The AG said yes. The mechanics: voting leave consumed three hours of working time on the election day, which would have otherwise counted toward time worked on a holiday. The comparable-time award reflected actual time worked, so the three voting hours reduced (rather than supplemented) the comparable award.

Citations and references

Statutes and rules:
- W. Va. Code § 2-2-1 (legal holidays)
- W. Va. C.S.R. § 143-1-14 et seq. (Division of Personnel holiday rules)
- W. Va. C.S.R. § 143-1-14.1(f) (three-hour voting leave)

Related opinion:
- AG Opinion of August 24, 2010 (media ID 18146) (companion holiday-status analysis for the August 28, 2010 special primary)

Source

Landing page: https://ago.wv.gov/media/18151/download?inline
Original PDF: https://ago.wv.gov/media/18151/download?inline

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

State of West Virginia
Office of the Attorney General
Charleston 25305
Darrell V. McGraw, Jr., Attorney General
(304) 558-2021 / Fax (304) 558-0140

August 25, 2010

The Honorable Joe Manchin III
Governor of West Virginia
State Capitol Complex
1900 Kanawha Boulevard, East
Charleston, West Virginia 25305

Dear Governor Manchin:

This letter is in response to your follow-up question posed upon receipt of the Attorney General's opinion of August 24, 2010 relating to certain issues involving State employees vis a vis the upcoming Special Election being held Saturday, August 28, 2010.

The question posed is as follows: ". . . whether State employees scheduled to work Saturday have an entitlement to a comparable day off or only 3 hours to vote?"

Applicable Authority

W. Va. Code § 2-2-1
W. Va. Code R. § 143-1-14 et seq.

It is our opinion that State employees scheduled to work and working on Saturday, August 28, 2010 are entitled to a comparable day off as W. Va. Code § 2-2-1 unambiguously makes an election day a "legal holiday."

As to the portion of the question related to time off to vote on Saturday, it is our opinion that the provisions of W. Va. Code R. § 143-1-14.1(f) control. The Code section reads:

(f) An appointing authority shall, if necessary, allow any employee required to work on any election day ample and convenient time and opportunity to cast his or her vote. Upon receipt of a written request at least three work days prior to an election, an appointing authority shall give any employee who has less than three hours of time away from work during hours polling places are open, up to three hours of paid time off between the opening and closing of the polls, to vote. The appointing authority shall schedule such time off to avoid impairment or disruption of essential services and operations.

Should an employee scheduled to work and working on Saturday, August 28, 2010 comply with the notice provision of the subsection, he or she is entitled to up to three hours of paid time off in order to vote which would be deducted from the comparable time awarded for working on election day.

We hope this opinion adequately addresses your questions.

Very truly yours,

Darrell V. McGraw, Jr.
Attorney General

Scott E. Johnson
Assistant Attorney General