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The
Governor has called for a special session of the
General Assembly to address what local, state and
national newspapers have called Virginia’s
“day-of-rest snafu.” The Virginia
“day-of-rest” laws are far from perfect and
clearly need to
be amended. How they should be
amended is another question altogether.
For one thing, the discussion of the law to
date has largely ignored one important issue –
what employers already must or should do to
accommodate employees’ religious beliefs.
Virginia
day-of-rest laws are permissive; that is, if the law
remains unchanged, each employee gets to choose
whether to ask for a day-of-rest each week, be it
Sunday, Saturday or some other day. Even without the
industry exceptions to the law eliminated
unintentionally during the regular legislative
session, however, the likelihood is that, in
today’s economy, few hourly or management workers
will demand their day-of-rest over employer
objections thereby giving rise to the obligation of
the employer to grant it.
Most
hourly workers like to earn overtime pay, which they
are entitled to under federal law any time they work
over 40 hours in a workweek.
Any employer that wants to avoid paying
overtime will find it in its interest to comply with
the day-of-rest law.
Managers and salaried professionals aren’t
usually entitled to overtime pay, but they are still
unlikely to demand a day of rest if it would be
contrary to the work ethic or environment in their
company.
In
addition, it is likely that employers can minimize
any disruption caused by the few employees likely to
exercise their “day-of-rest” rights by adopting
and implementing scheduling procedures that require
employees to request their “day-of-rest” in a
certain manner and on a certain schedule.
For example, if scheduling is done monthly,
the employer could require employees to make his/her
request for days-of-rest at the time the schedule is
put together rather than waiting to make the request
at a time when it would be more difficult to
schedule around him/her.
Such a procedure would be similar to that
used by many employers and colleges to manage
requests for accommodation under disabilities laws.
Finally,
every employer in Virginia
with more than 15 employees is already subject to
the religious accommodation requirements of Title
VII of the Civil Rights Act of 1964.
And, Virginia employers with more than five
and fewer than than 15 employees are prohibited by
state law from discharging any person on the basis
of his/her religion.
Under
Title VII, an employer must accommodate the
religious beliefs of an employee or an applicant
unless it imposes an “undue hardship” on the
conduct of the employer’s business. Such
accommodation could well include granting an
employee’s request for a day off each week for
religious observance.
Under the Virginia law, it is arguable that
no business with more than five employees can fire
someone simply for refusing to work on a particular
day because of his/her religious beliefs.
The
existence of these other protections for religious
free exercise does not mean, however, that there
isn’t a reason to amend Virginia’s
day-of-rest laws. There
is. Among the most important reasons to do so is
that the day-of-rest laws, as now in effect, treat
workers differently based on religious belief or
practice, and they treat religious people
differently based on their employment status.
As
of July 1, every employee in Virginia is entitled to
ask for and receive one day off each week; however,
only “nonmanagerial” employees can demand
Saturday or Sunday off.
Non-managerial Christian workers who
celebrate Sunday as their Sabbath have an absolute
right to request and receive Sunday as their day
off. A non-managerial
Seventh Day Adventist or Jewish person can get
Saturday as his/her day off, but only if the
non-managerial employee provides written notice to
the employer that she/he “conscientiously believes
that the seventh day of the week ought to be
observed as a Sabbath” and that he/she “actually
refrains from all secular business and labor on that
day.” A
Muslim who observes the Sabbath on Friday, however,
has no right to get that day off, and no manager has
any right under state law to accommodation of his or
her religious beliefs in scheduling of his or her
“day-of-rest.”
Whatever
amendments are made to repair the Virginia law, this
disparate treatment of religious employees based on
status or belief should not continue.
At the same time, however, the legislature
should be careful not to make changes in the law
that will take away what protection of religious
free exercise is now afforded by the state law to
employees of Virginia companies not covered by
federal law (those with 15 or fewer employees).
Let’s
celebrate the 40th anniversary of the federal
Civil Rights Act by amending Virginia law, at a
minimum, to assure that all employees in Virginia
have the same right to reasonable accommodation of
religious beliefs in the workplace regardless of
whether their employer is a major multi-national or
a small business serving a local market.
--
July 12, 2004
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