Guest Column

Claire Gastanaga

Give It a Rest


Concern about the "day of rest" snafu is a bit overwrought, but the legislation still needs fixing. The law discriminates against religions that don't honor the Sabbath on Sunday. 

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

























Claire Guthrie Gastañaga is the principal of CG2 Consulting, a firm that specializes in business and public policy advocacy for women and minority-owned businesses, trade associations and grass roots organizations.


Ms. Gastañaga currently serves as the Atlantic Region Coordinator for the National Association of Women Business Owners' Public Policy Council and was the Small Business Administration's Virginia Women in Business Advocate of the Year in 2003. She served eight years in the Virginia Attorney General’s Office, the last year as Virginia’s first woman chief deputy attorney general.