Time Off for Religious Holiday
Paula_AZ
32 Posts
Hello, All
I have an employee who is requesting October 6th off for Yom Kippur. She is salaried and has run out of Vacation and Personal time. I have advised her that should she take October 6th off, her salary would be affected.
My question: how much trouble are we opening ourselves up to should her time off be denied?
This employee has already used her allotted sick time, personal day and vacation time, as well has another week of unpaid time. She also takes many partial day absences (comes in late for one reason or another, leaves early for doctor appointments on a regular basis.) Her supervisor is already currently preparing a written warning about the attendance issues and now this request for the religious holiday comes through. Her supervisor wants to say No and put an end to this excessive absenteeism.
Your thoughts?
I have an employee who is requesting October 6th off for Yom Kippur. She is salaried and has run out of Vacation and Personal time. I have advised her that should she take October 6th off, her salary would be affected.
My question: how much trouble are we opening ourselves up to should her time off be denied?
This employee has already used her allotted sick time, personal day and vacation time, as well has another week of unpaid time. She also takes many partial day absences (comes in late for one reason or another, leaves early for doctor appointments on a regular basis.) Her supervisor is already currently preparing a written warning about the attendance issues and now this request for the religious holiday comes through. Her supervisor wants to say No and put an end to this excessive absenteeism.
Your thoughts?
Comments
Without going into the ramifications of delving into her religious background, etc., I would give it to her. A jury would love to hear that she was denied her religious holiday when other employees received paid time off for their religious holidays.
You can always deal with the absenteeism issues and the excessive time off separately -- I just don't think I would add a religious holiday to the mix. It only clouds the issue and gives you one more thing to defend against.
I've forwarded them to the supervisor to support my initial feeling that unless there is a justifiable reason she must be here that day, we should give her the day off and pursue it as a disciplinary issue.
To answer Beagles questions: The employee is exempt and the request came in today.
Thanks again for your advise!
Paula
Good idea about the Christmas exchange thing, but our office is completely closed that day. Believe it or not, the owner of the company even added the day after Christmas, 1/2 day on New Years Eve and January 2nd to this season's paid holiday list. The owner is more than generous in the benefit area. Where else could you possibly get medical & dental family coverage for $20.08 per week?
No request for that day off, huh?
Personally I'm looking forward to adding Hobart Show Day (Oct. 23), St. Stephens Day (Dec. 26), Waitangi Day (Feb. 6) and Eight Hours Day (Mar. 1) to my list of paid holidays (see if the boss approves). x;-)
Yom Yippur is the most religious holiday on the jewish calendar and to deny this to an employee smacks of discrimination. You should not be connecting her lack of attendence to this at all. They are separate issues and should be dealt with us such!
Don't deny her the day off, but I sure wouldn't pay her if you don't have to.
Yom Kippur is taken as a personal day. If someone was disciplined for taken a religious day (particularly one as important as this), the company would be open to EEOC charges and possibly, eventually, a trial.
In our company, we know that there is a certain set of managers are required based on their position of responsibility & accountabilies that must give us 60 to 70 hours a week for a base week salary. If the department head wants to give this group of employees the day off and not even mention it to PAYROLL OR THE HR great, that is one less worry. If there is any disagreement from anyone the response is "well let's see here is a transfer document ready for you to sign and tomorrow morning you can transfer to the production floor and start working to turn out the product for this organization and you too can get extra days off for the extra hours put in" as an EXEMPT EE!!!
I recommend your consideration and thoughts in this frame of reference!
PORK
Yom Yippur is the most religious holiday on the jewish calendar and to deny this to an employee smacks of discrimination. You should not be connecting her lack of attendence to this at all. They are separate issues and should be dealt with us such!
If the supervisor has enough to give her a warning for the absences before Yom Kippur, why confuse the issue by denying her the day off on Monday? Accommodate her and issue the warning as appropriate, without reference to Monday's absence. If you want to play it really safe, then wait for the next absence after Yom Kippur and give her the warning then. Hopefully, the superviosr has already brought to the employee's attention the poor attendance and the fact she is subject to being issued a warning for that.
It is then that we might consider telling, whoever needs to know, I am headed home and please call me if someone needs me. I got paid for being in the position and working the necessary hours to handle company business. There is then an established understanding between the boss and the ee, "thanks, for a job well done, the company owes you one and we'll take care of you!" tHIS SPEAKS TO loyalty, professionalism, work ethic, leadership,and dedication,etc.
This coming Friday, I will leave the office at around 1:PM after my boss and I know there is no need for me to be here, my assistant is here if anything comes-up! I then, within the hour, be in my tree stand BOW HUNTING FOR DEER! THIS IS A RELIGIOUS HOLIDAY, THAT I HAVE TAKEN FOR 28 YEARS AND THE COMPANIES' HAVE LOVED ME FOR IT. Even in my "tree stand" I am working, my boss has asked me to come up with a reorganization structure which will address a developing difficult issue on maintenance. From the time he gave me the mission yesterday my gears will be turning for the solution, I have not come up with it as yet; at two this morning, I woke up and had a brainstorm idea, I wrote it down and went back to sleep. While away this week-end my thoughts will be shared with the company and my love of my special religious holiday which is known and recognized by my boss!
BOTTOMLINE: HRs get out of the middle of this issue and give it back to the concerned decision makers. If her boss wants to give her the day off and not count it as PTO/vacation/holiday/ or whatever, it should be the decision of the responsible manager.
As HR you will feel alot more at ease with this issue when you are on the side line giving advice on behalf of the company and the ee, be they EXEMPT OR NON-EXEMPT!!!
Regardless, we wish you success in your position and these are only my thoughts take it or leave it!
PORK
If an exempt employee is absent for a full day due to personal reasons (which is as an absence reason that is not an illness, injury, or disability, or one of the specific reason identified in (a), such as jury duty or temporary miltary leave, the employer may dock the day's salary from the weekly salary (usually 1/5, if the employee works five days during the week). There is NO requirement that there be ANY accrued paid time balance, such as PTO, or paid personal time, or paid vacation time, at all. Thus, if the employer had no such benefit, the employer could still dock the salary for the full day's absence due to personal reasons.
If an exempt employee is absent due to illness, injury or disability, for a full day, then a dock of the salary for that reason may ONLY be done if the emplyee is SUBJECT to a compensation mechanism that would provide pay for absence. That means if the employee has a paid sick leave or PTO (that would cover absences due to illness, injury or disability), or some type of "insurance plan" that would provide the benefit, then the salary may be docked. This is true even if the emplyee is NOT YET eligible for the beneift (e.g., not employed with company long enough) or has exhausted the benefits at the time of the absence due to illness or injury.
The above addresses full day absences. Of course docking salary for part day absences is not permitted unless the absence falls under intermittent or reduced FMLA leave or the employee is in the public sector (and the governmental entity has a polcy of docking for part day absences). DOL does not consider charging an employee's part day absence against accrued time balance to be a violation of FLSA since it considers accrued time to be fringe benefits and not subject to FLSA. It is only concerned that if the employer does charge the accrued time balance for partial day absences, that the employer ensure that the full salary is still issued even when there is no or insufficient paid accrued time on the books to charge.
BUT, in some states, such as California, charging paid vacation time or PTO for partial day absences would be a violation of state law. This is prmarily occurs where the PTO or vacation time is vested to the emplyee once it is earned and the state has a prohibiton against "use it or lose it" policies. In California, paid vacation time and unspecified PTO are considered to be forms of deferred compensation, although paid accrued sick time is not (thus in Califonria it would be possible to charge partial day absences due to illness or injury or disability against an accrued paid sick time balance, but not an unspecified PTO balance).
"If an exempt employee is absent due to illness, injury or disability, for a full day, then a dock of the salary for that reason may ONLY be done if the emplyee is SUBJECT to a compensation mechanism that would provide pay for absence. That means if the employee has a paid sick leave or PTO (that would cover absences due to illness, injury or disability), or some type of "insurance plan" that would provide the benefit, then the salary may be docked. This is true even if the emplyee is NOT YET eligible for the beneift (e.g., not employed with company long enough) or has exhausted the benefits at the time of the absence due to illness or injury."
However If the employee has used all of their PTO and they are sick the employer MAY in fact then deduct the day's pay from their salary.
We allow employees to work on other religious holidays if they want to take their own religious holidays off. Give her the day off so long as she agrees to work another holiday. If you don't accomadate, you can expect a knock on the door from the EEOC.
If you do not want to establish a holiday on those days mentioned for everyone, just make a reasonable accomodation for these, they are also deserving. WHEN OUR EXEMPT EE'S have to work on a scheduled holiday we allow them to be off some other day. If we are NOT open to allow for someone to work, I do believe, the concerned manager/supervisor and I could find another work day to allow for this religous activity without the EXEMPT ee having to pay for it. It may be in the future, but if the individual is serious then let's find a reasonable accomodation. Do not take a day of pay away from the ee, when you do, it will be another precedent setting nail in your poster, which reads XXX-company discriminates against other than main stream ees!
PORK
One question is "has this employee" accomplished their work for that week or will it cause any type of undue hardship for her to be off. Also, is she asking it off with or without pay.
If you are able to allow her the time off, I would do so, but you can then decide if you want to pay her or not. You certainly don't have to. If she learns it is without pay, she may change her request. (Is there anyone else in the office who may want to have this day off as well? If so, make sure you handle them equally.)
Now if she has an attendance issue, I would also address that, but not even bring this day into the picture when discussing it.
E Wart
Also, I've read my post through a couple times now and still don't understand what sarcastic comment I made that you took umbrage to. If it was the last line, I was simply asking how do I, as an employer, determine which religious holidays are most holy? I've got 1000 employees from who knows how many different religions - I'd hazard a guess at 200 - I need to let them all take off when they tell me a day is important to them religiously? With 1000 employees, that's going to be impossible to track.
We are a 24/7 business - no matter what the religious holiday, we never close. Exempts receive 8 paid holidays per year. If an exempt works one of the company designated holidays, they are free to use the day as a floater within the next six months. They are not allowed to stack the holidays to, say, add onto a vacation.
I work on an Indian reservation. National Indian Day is not a designated holiday. Exempts and non-exemps alike either use a floater or vacation time to cover the day. They prepare for it. I'd be pretty hard pressed to pay another exempt for a religious holiday when they have no time to cover it. If it's important to have the day off, prepare for it by saving time.
Another factor not considered yet. Should we not verify the non-traditional religious holiday is bona fide before making any accomodation and should we not require the ee to prove they deserve the accomodation? The only other alternative I see is do away completely with all religious based holidays. Stay open for business on Christmas. Make the Christians do the same as non-Cristians, budget their time off.
Finally, I do get a paid day off for Christmas, January 1st, Good Friday. But when I take off for my religious holidays, I must use a personal day. But, you can use that personal day to go Vermont and ski. However, since you don't support H, all is forgiven.
To conclude, the employee was granted the day off without pay. She was also given a written warning and informed that future unpaid time off requests would be denied except in an emergency situation. She was also given a set 730a-430p schedule and, as all other salaried non-management employees are required to do, must give prior notice if she will be more than 30 minutes late or leaving more than 30 minutes early. The employee was very receptive to the discussion, as it was conducted with the utmost professionalism and tact.
Her 1-year anniversary is coming up at the end of October and she'll be entitled to additional vacation/personal/sick time then.