Religious time off requires reasonableness

PHILIP WALZER


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By Philip Walzer
The Virginian-Pilot
© March 10, 2013

The spring religious holidays fall relatively early this year. Passover will begin on March 25, followed by Good Friday on the 29th and Easter on March 31.

And why should that merit attention in a business column?

Because the holidays sometimes set off not just family anxiety, but also workplace discontent.

You can see the conflict coming. Say you’re a serious practitioner of your faith. You feel you need time off from the job to observe a religious holiday or the Sabbath. OK. Shift your mindset. Now you’re the CEO or office manager who receives the request for time off. You wonder: How will this affect business? You’ve got to make sure that customers are taken care of and the work flow continues unimpeded.

Federal law requires employers to “reasonably accommodate” workers’ religious beliefs – unless that imposes an “undue hardship,” such as a cost that’s beyond minimal. Of course, the interpretation of what’s “reasonable” or “undue” depends on the beholder, and the suits keep coming.

Since January 2012, the U.S. Equal Employment Opportunity Commission announced at least five settlements of cases it brought against employers that declined workers’ requests for religious time off. Wal-Mart, for instance, agreed to pay $70,000. It had granted a Mormon employee’s request for Sundays off from 1995 until it changed its policy in 2009, the agency said.

After that, the man, an assistant manager in Washington state, sometimes found someone at his level to swap shifts with. When he couldn’t, he took Sundays off – and was disciplined.

I was unsuccessful in my attempt to survey a handful of companies about their policies. Smithfield Foods, Stihl, Wal-Mart and Kohl’s didn’t respond to my emails. Jill Hornbacher, a spokeswoman for Target in Minneapolis, emailed: “All I can share is that our team is our competitive advantage, and we work hard to keep our team members happy while ensuring our guests have an exceptional shopping experience in our stores.”

Local attorneys were more forthcoming. David Burton, head of the employment law section at Williams Mullen in Virginia Beach, said he gets a steady 10 to 15 calls a year from employers on how to handle requests from workers who want a religious holiday or weekly prayer day off.

“Most employers get it,” said Laura Geringer Gross, a lawyer with Kaufman & Canoles in Norfolk. “If they can accommodate someone’s religious beliefs, they will.”

But not always. A friend of mine who lives in Virginia Beach has had mixed success getting Saturdays off regularly to attend Jewish services, even though he has offered to work Sundays instead. Over the years, he said, it’s depended on the humor of his supervisor. These days, he’s having few problems.

Now the true-confession part: I, too, was involved in a religious-time-off standoff. Mine was with a previous employer, more than 25 years ago. It’s a bit hazy now, but at the time I worked on Saturdays and wanted the mornings off to go to services at a synagogue. All right, my editors said. See if you can trade shifts with somebody.

Burning with the righteousness and anger of a guy in his 20s, I said that wasn’t good enough. The result: I was transferred to another section of the newspaper and got Fridays and Saturdays off. It all worked out, though the incident probably killed my chances for a promotion.

Despite my hot-headed objections, Burton and Gross said employee-initiated trades pose a good solution. The keys, Burton said, are communication and compromise. “For employers, the most important thing is to be engaging and have a give-and-take discussion about it,” he said. “You cannot have a knee-jerk reaction of ‘No.’ ”

A company’s ability – and legal responsibility – to accommodate such requests depends on such factors as the size of its workforce, hours of operation and duties of the worker. Gross pointed to a court ruling in January dismissing an EEOC suit against Rent-A-Center, which had fired a manager who refused to work on Saturdays because he is a Seventh-day Adventist.

D.C. Judge Royce Lamberth said that Saturday was the “most important day of the week” for Rent-A-Center, which is closed on Sundays, and that the store was within its rights to require all managers to work on Saturdays.
Todd McFarland, the associate general counsel for the General Conference of Seventh-day Adventists in Silver Spring, Md., said he counsels members to be open to a range of solutions, from working Sundays to taking unpaid time off. “They need to be willing to do whatever is necessary to keep the Sabbath,” he said.

Some employers, however, don’t give them the chance, McFarland said. “There does tend to be a viewpoint in certain parts of the country that you should just be happy to have a job. Why should you be asking for anything else?”

Next month: The delicate art of writing self-evaluations. Let me know your tips.

Philip Walzer, 757-222-3864, phil.walzer@pilotonline.com


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