Working Together

A new Connecticut law went into effect this year creating early voting procedures for the first time in Connecticut.  The law, Connecticut General Statutes § 9-163aa, provides that before each election, a period of early voting must be held.  The early voting period is fifteen days prior to a regular election and eight days prior to a primary election. Further, CGS § 9-174 (2) provides that each location designated for early voting shall remain open from ten o’clock a.m. to six o’clock p.m.  So this year, early voting for the November 5 election will start on October 21, 2024.

The implementation of this law raises new questions about wage and overtime eligibility for election poll workers. With the implementation of these early voting laws, given the long days poll workers often put in on election days, it is possible that some election poll workers may work in excess of 40 hours per week,. As a result, municipalities across Connecticut should now be considering how their poll workers should be paid, whether such poll workers are eligible for overtime pay, and what record keeping obligations they have as the employer.

How are election workers to be paid? Are they overtime eligible?

Whether or not election poll workers are eligible for overtime pay depends on whether they qualify as an “employee” for purposes of the FLSA and Connecticut law. An election worker is not necessarily an employee and may be treated as a “volunteer” so long as both the employee and the municipality agree to that designation.  CGS § 9-235c provides “[n]otwithstanding any provision of the general statutes to the contrary or of any special act, charter or ordinance, any election, primary or referendum official may serve on a voluntary basis without compensation, if such official and the registrars of voters or, in the case of a primary, the registrar of voters of the party conducting the primary, mutually agree.” 

So it is possible for poll workers to serve voluntarily. But if an agreement is not reached for a poll worker to be a volunteer, must the municipality treat the worker as an employee or can the worker serve as an independent contractor?

The Department of Labor outlines several factors that guide the assessment of whether a worker qualifies as an employee or an independent contractor, including (1) opportunity for profit or loss depending on managerial skill, (2) investments by the worker and the employer, (3) permanence of the work relationship, (4) nature and degree of control, (5) whether the work performed is integral to the employer’s business, and (6) skill and initiative. In most cases, weighing all of these factors will support the conclusion that a poll worker does not qualify as an independent contractor and must be treated as an employee.

In one unique case, however, a Florida court found poll workers to be independent contractors – but the decision was based on very specific facts, including that the poll workers serve as public office holders. Miami-Dade Cnty. v. State Dep't of Lab. & Emp. Sec., Div. of Unemployment Comp., 749 So. 2d 574, 577 (Fla. Dist. Ct. App. 2000).  It is therefore important to always look at the relationship on a case-by-case basis to evaluate whether or not an election poll worker may qualify as something other than an employee.

Ultimately, if no volunteer relationship exists due to a lack of mutual agreement, and no additional facts confirm that a poll worker serves as an independent contractor, then the worker is an employee; and, importantly, a nonexempt employee, who is eligible for overtime compensation.  This is a highly fact-based inquiry and the scope of this blog does not include an in-depth analysis of exempt versus nonexempt workers, but guidance on that analysis can be found here.  For example, a lead poll worker might be exempt from overtime, while a general poll worker typically would not. 

Wage laws generally require that employers pay nonexempt employees overtime at the rate of one and one-half times a nonexempt employee’s “regular rate of pay” for all hours worked over 40 in the workweek. (See:  https://portal.ct.gov/dol/divisions/wage-and-workplace-standards/wage-and-hour?language=en_US and https://www.dol.gov/agencies/whd/fact-sheets/7-flsa-state-local-government). The regular rate of pay includes all compensation that the worker earns from the municipality in a week divided by the total number of hours worked in that week. Part-time and intermittent employees have the same overtime entitlement as full-time employees (last updated Sept. 2020).  That means that a nonexempt poll worker must be paid overtime for all hours worked over forty in a week.  To complicate matters, if the poll worker serves the municipality in another paid capacity, the regular rate of pay must include the remuneration from the other job as well.  This could result in a significant overtime exposure.

Finally, as to how election workers are to be paid, there is conflicting guidance. The IRS provides that election workers may be compensated by a set fee per day or a stipend for the election period, whereas the state of Connecticut provides that election workers are typically paid on an hourly basis. Election workers: Reporting and withholding, IRS, (last updated Aug. 19, 2024); Office of the Secretary of the State, Poll Worker Information and Interest Form, based on the more liberal approach that Connecticut espouses, a stipend would not appear to be an appropriate form of remuneration when the poll worker is not serving as a volunteer. A volunteer can be paid a stipend, but a written agreement evidencing the arrangement should be signed by both the worker and the Registrar.

What record keeping obligations does the employer have?

As to reporting requirements under the FLSA, the Department of Labor provides that every covered employer must keep certain records for each non-exempt worker including:

• the employee's full name and social security number;
• address, including zip code;
• birth date, if younger than 19;
• sex and occupation;
• time and day of week when employee’s workweek begins;
• hours worked each day;
• total hours worker each workweek;
• basis on which employee’s wages are paid;
• regular hourly pay rate;
• total daily or weekly straight-time earnings;
• total overtime earnings for the workweek;
• all additions to or deductions from the employee's wages;
• and total wages paid each pay period. Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA), Wage and Hour Division, United States Department of Labor, (July, 2018)

Because this record keeping obligation only applies if a poll worker qualifies as an “employee” for purposes of the FLSA, as noted above, that classification obviously has important consequences for a municipality’s record-keeping requirements.

Tax Reporting And Tax Exemptions

Updates in tax reporting and tax exemption rules this year may impact election poll workers and the municipalities that employ them. Amounts paid to election poll workers are exempt from federal income tax withholding. See Poll Worker FICA Threshold Increased in 2024, PAYLOCITY, (Oct.  25, 2023). See also Election workers: Reporting and withholding, IRS, (last updated Aug. 19, 2024) IRS website (providing that election workers aren't subject to income tax withholding under Internal Revenue Code (IRC) Section 3401(a)). The IRS does allow employers and employees to enter into voluntary agreements that withhold federal income tax from wages for services performed. Election workers may request this voluntary income tax withholding by completing and giving the employer a Form W-4, Employee's Withholding Certificate.

As to tax reporting requirements, Employers must report payments to a poll worker on the Federal Form W-2 (not Form 1099-MISC) if they total $600 or more in a calendar year. If a poll worker's compensation is subject to FICA tax withholding, the employer must report payments on Form W-2 regardless of the compensation amount. See Poll Worker FICA Threshold Increased in 2024, PAYLOCITY, (Oct.  25, 2023).

Pullman & Comley’s public sector labor and employment lawyers are available to assist municipalities with these complicated legal issues.