Can Employees Refuse to Work on a Federal Holiday?

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Work on a Federal Holiday (1)

The last bite of pumpkin pie has been enjoyed and the mouth has been duly dabbed with a napkin.  The cook looks around the kitchen table with a smug feeling of satisfaction, knowing that everyone has enjoyed their Thanksgiving Day feast.  She knows that soon the men will meander into the den to watch the football game while the women will don aprons and begin the massive clean-up process.

Well, that little scenario might have happened before “Gray Thursday” came along and ripped the Thanksgiving Day holidays and rituals to shreds.  Now, no one wants to linger long past the pumpkin pie as they scoot out the door saying “hate to eat and run but…”   Unfortunately, the eat-and-run crowd isn’t just the bargain hunters anymore – it is the poor retail workers as well.

Well, if shopping for bargains is your shtick, then fine.  Many shoppers were content to wait until the stores opened at the crack of dawn on the day after Thanksgiving.  But now the former “Black Friday bargains” are now available right smack dab in the Thanksgiving Day dinner hour.

Going into work

The concept of Black Friday came along gradually – it used to be that those in retail steeled themselves that Thanksgiving Day was the last day of rest for at least six weeks – that took into account the barrage of holiday shopping, and then came the returns and exchanges.  Black Friday flourished for a good decade before someone thought “why not start Thanksgiving mid-p.m.?”  Social media campaigns to boycott the open stores got a lot of “likes” and profound comments, but it appears that “Gray Thursday” is here to stay. Some stores don’t participate and release statements that they want their employees to enjoy the holiday with their family.  But what if your store isn’t one of those that back off from this new “Gray Thursday” shopping tradition and you want to spend Thanksgiving Day with family.  So you ask and find out that:

The short answer is no

“Does my employer have to pay me overtime or double time for working on a holiday?

No.  Overtime must be paid at a rate of time and one-half times the employee’s regular rate of pay for each hour actually worked in excess of forty hours in the workweek.”  (Source:  DOL-NJ.)

Some companies try to sweeten the pot by doubling workers’ pay for working on the holiday where others are paid at their regular rate and allowed to take a “comp day” later, but in most cases, employers rely on the Fair Labor Standards Act (“FLSA”), a law which governs wages and hours.  The FLSA provides for the payment of a minimum wage per hour worked and requirements for payment of overtime at time and half.  So, unfortunately, if you are a non-union worker, i.e. a collective bargaining agreement is not in place at your company, then your employer is not required to pay you extra pay for working on the holidays and may designate your working hours however it wants.

If Thanksgiving Day was a religious holiday

Because Thanksgiving Day does not fall under the criteria of a religious holiday, which we’ll discuss below, yes you can be fired for refusing to work on Thanksgiving or for declining to work overtime (unless you have a medical or disability limitation or are on an approved absence due to the Family Medical Leave Act (“FMLA”).  So, in brief… retailer employers can demand that employees work on Thanksgiving without paying them extra if they don’t work over forty hours for the week.  Well, if that burst your bubble, it was meant to – it might be legal, but it isn’t fair.

The employer’s dilemma

Obviously the employer cannot just pick and choose which employees should receive time off for holidays – religious or otherwise – there are actually laws that must be abided.  In other words, “time off” for employees is not at the employer’s whim.

Federal law requires an employer to “reasonably accommodate” an employee’s religious observances, practices and beliefs unless the employer can show that accommodation would cause an “undue hardship” to the employer’s business.

In defining “reasonable accommodation” and “undue hardship” it really depends on the facts unique to a particular situation.  The savvy employer will create a job structure that permits the employees to practice their religious beliefs while still maintaining their jobs with hardship to neither party.  Unfortunately, in some cases, accommodation may not be possible.  In that instance, when an employer must deny the time off to the employee, that employer bears the burden of demonstrating that a serious attempt to accommodate the employee was made.

In general, employers begin to encounter legal issues when they do not treat all employees equally.  For example, if the employer permitted employees of one religion to take their religious holidays off, while employees of another religion were not permitted the same indulgence to be excused from work for their holiday.  For example, if the employer had a policy in place that permitted Christians to take off work for Good Friday and Easter, yet the employer did not similarly permit Muslims to take off for Ramadan, the end result may be a claim of discrimination based upon religion.

Sometimes to resolve the problem simply, when staff must be at the workplace on a holiday, even a religious one like Christmas, obviously everyone cannot be off work at the same time.  So the dilemma is resolved by using a seniority system – it may be the fairest solution to the issue… the seniority system has worked for years for non-religious holidays as well.

Jewish or Muslim holidays

It is best when a person is either interviewing for a job, or upon accepting the position, that they indicate to the employer any religious commitments which may interfere with work responsibilities.  Since the employer has a duty to accommodate the religious needs of their employees, it would behoove the employee to help resolve any anticipated conflict in advance of the holiday issue cropping up. Indicating such a religious commitment in advance, should resolve any future conflict; employees that are union members should disclose their particular religious observance to their union representative.

An employer is generally not required to pay the employee for time taken off for religious observance.  The United States Supreme Court determined that allowing an employee to take unpaid leave for the holiday observance is deemed a reasonable accommodation; however, such unpaid leave would not be a reasonable accommodation when paid leave was provided for all purposes except religious ones.

Just like the time requested by Muslims for Ramadan, so should there be religious accommodation for Jewish Sabbath observance as well as observance of holidays and high holidays.  In many workplaces, flexible scheduling amongst employees eliminates any undue hardship to the employer by allowing employees to “swap” days off, i.e. permitting a person of Jewish faith to be absent from work to observe Shabbat from nightfall on Friday until nightfall on Saturday and then to work on Sundays, rather than Saturday, or, perhaps to work in the stead of his/her Christian co-worker on the holiest of Christian holidays – Christmas.

It is a smart employer who realizes that being sensitive to a person’s religious needs makes for better morale in the workplace and will result in more loyal and happier employees.   But, it is an even smarter employer who double-checks that all legal guidelines are followed in the workplace as well – if there are any questions, it never hurts to get the expertise of an employment attorney.

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