’Tis the Season To Review Holiday Pay Practices & Employee Requests for Time-Off
With Thanksgiving coinciding with Hanukkah this year and Christmas fast-approaching, employers should review carefully their obligations regarding requests for time-off and holiday pay practices. Specifically, the latter requests often trigger employer responsibilities under the Fair Labor Standards Act (“FLSA”), Title VII of the Civil Rights Act (“Title VII”), and the Family Medical Leave Act (“FMLA”). The following questions commonly arise regarding time-off during the holiday season.
- Are employers obligated to provide employees time-off for a nationally recognized holiday?
No. There is no federal law that requires an employer to provide time-off, paid or otherwise, to employees on nationally recognized holidays.
- What if an employee requests time-off to observe a religious holiday?
Title VII requires an employer to provide a reasonable accommodation for the religious practices of an employee, unless the employer can show that the accommodation would result in undue hardship. An employee who wants to invoke an employer’s duty to accommodate his/her religion under Title VII must give the employer fair notice of his/her need for an accommodation and the religious nature of the conflict. Unpaid time-off may be a reasonable accommodation as well as allowing an employee to use a vacation day or floating holiday to observe a religious holiday. Further, a seniority-based system permitting employees to choose their own shifts, combined with an employer’s offer to approve any voluntary shift swaps that the employee enters into in a workplace where swapping is regular and accepted, constitutes a reasonable accommodation.
- What if granting an employee’s request for time-off to observe a religious holiday violates a collective bargaining agreement?
An employer is not required to violate a collective bargaining agreement or impose more than a de minimus impact on other employees in order to accommodate an employee’s religious needs. For example, in EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008), the court held that the employer was not required to violate its collective bargaining agreement in order to accommodate the employee’s religious observances. In Firestone Fibers, the employee’s religion prohibited him from working from sundown on Friday until sundown on Saturday and required church attendance on 20 holidays. After exhausting his vacation and floating holidays, as well as swapping shifts, the employee’s supervisor permitted him to take more half-day vacations than allowed by the applicable collective bargaining agreement, and also tried to schedule the employee so that he did not have to work after sundown on Fridays. Nonetheless, the employee was terminated after his absences due to his religious commitments exceeded his permissible paid and unpaid leave. The court held that Title VII did not require the employer to totally accommodate the employee’s religious needs, but only to provide a “reasonable accommodation,” which it had done.
- If an employer grants time-off for a holiday must it be paid?
An employer does not have to pay nonexempt employees for time-off on a holiday. An employer is only required to pay nonexempt employees for time actually worked. To the contrary, exempt employees who are given the day off must be paid their full weekly salary if they work any hours during the week in which the holiday falls. The FLSA does not permit employers to dock the salary of an exempt employee for holidays.
- May an employer condition a non-exempt employee’s holiday pay on completion of an introductory period?
Yes. An employer may grant an employee paid holidays immediately upon hire or require that the employee complete an introductory period. Further, an employer may choose only to provide holiday pay to full-time employees, but not part-time or temporary employees.
- Must an employer provide holiday pay for employees on unpaid FMLA leave?
An employer is required to treat FMLA leaves of absence the same as other non-FMLA leaves. If an employer has a policy of providing holiday pay for employees on non-FMLA leaves, the employer must pay an employee for holidays during an unpaid FMLA leave.
- Must employers count holiday leave taken during the workweek toward the overtime requirement?
No. The FLSA requires employers to pay nonexempt employees time and one-half of the employees’ regular rate of pay for all hours worked over 40 in a workweek. Employers do not have to count paid holidays, paid time-off (“PTO”), vacation, personal and sick leave hours taken by an employee toward the calculation of the overtime requirement, because these hours are not actually “worked” and are therefore not considered as hours counted toward overtime under the FLSA.