130 Muslim workers fired over unauthorized breaks during Ramadan
Volokh, Eugene
VOLOKH at law.ucla.edu
Fri Sep 12 12:21:30 PDT 2008
I appreciate Doug's practical point, but I was wondering whether
this is enough to make the breaking of the fast an "aspect[] of
religious observance and practice."
One more question: Assume that Swift doesn't offer a break, but
doesn't object to people's having an energy bar or drinking a bottle of
water at their work station. (Perhaps that's not allowed when people
are engaged in food processing, but assume that it is, or assume that
people can hit the restroom for a minute or two whenever they need to,
so they can catch a very quick bite on a minute-long break.) Would that
suffice as an accommodation (or perhaps even make it unnecessary to have
an accommodation, if there's no prohibition on such munching)?
Obviously this isn't as appealing to many people as a break during which
they could eat a regular meal. But if the argument is that the
fast-breaking is needed to avoid health problems or serious discomfort,
wouldn't the energy bar and the bottle of water suffice for that
purpose?
Eugene
________________________________
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Friday, September 12, 2008 11:46 AM
To: religionlaw at lists.ucla.edu
Subject: Re: 130 Muslim workers fired over unauthorized breaks
during Ramadan
So if they have already passed the point where they have a
mandatory lunch break under federal law, even though none of them eat, a
break at sunset would be a second break, with more than de minimis cost,
and therefore not required under TWA v. Hardison, the leading case on
Title VII accommodations. Unfortunate, but possibly true.
But if the shifts in this plant are anything like the US norm,
that's not a problem. The usual shifts are 8-4, 4-midnight, and
midnight to 8, or sometimes minor variations of that, such as 7-3, 3-11,
and 11-7. There's nothing magic about that, but it puts one shift on
people's normal daytime schedule. Assuming the shifts at Swift are
something like that, then workers at sunset would be on roughly a 4-12
shift, and would be asking for an early lunch break rather than a
federally forbidden late one.
Eugene asks a good question, but sunset in LA this time of year
is nearly 13 hours after sunrise. The need for food after a 13-hour
fast is sufficiently intense that there's not much difference between
the need for food at sunset and the religious need to keep the fast. A
chance to eat at sunset is a reasoanble accommodation of the religious
need to fast until sunset.
Quoting Alan Leigh Armstrong <alanarmstrong.com at verizon.net>:
> Swift also has a federal law and perhaps a state law problem.
>
> Federal law requires that employees who work a shift longer
than 6
> hours must take a 30 minute lunch break. The lunch break
cannot be
> more than 5 hours 30 minutes after they start. (I ran into
this many
> years ago when i worked for the Navy. Some people would come
in early
> saturday, work 8 hours then go home. They were told they had
to take
> a 30 minute lunch break.
> Under federal law, they can work a 6 hour shift without a
lunch break.
>
> Does Swift let the employees take 2 30 minute breaks? What
does that
> do to production?
> Can Swift put them all on swing or graveyard shift so they are
at
> work during the night and avoid the problem of lunch between
sunrise
> and sunset?
>
> When reasonable accommodation hits federal law, which
prevails?
>
> Alan Armstrong
> Huntington Beach California
>
> On Sep 11, 2008, at 12:03 PM, Douglas Laycock wrote:
>
>> A typically garbled press account, with paragraphs that sound
like
>> they're from two different disputes. So it's hard to tell
what's
>> really going on.
>>
>> But if the dispute is really just about a lunch break at
sunset,
>> it's a pretty straightforward Title VII accommodation claim.
Hard
>> to imagine what Swift's undue hardship would be if that
standard
>> were taken seriously. Hard to imagine even what a de minimis
>> hardship would be if nearly the whole work force is Muslim.
If
>> there are also lots of non-Muslim workers, Swift might claim
it has
>> scheduling problems. It sounds like at this point they made
no
>> effort to accommodate and don't give a damn, but of course
they
>> don't have to explain their legal position to a reporter.
>>
>> Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
>>
>> > From
>> >
http://www.rockymountainnews.com/news/2008/sep/10/swift-company-
>> fires-10
>> > 0-workers/:
>> >
>> > At least 130 Muslim workers at the north Greeley JBS Swift
& Co.
>> plant
>> > were fired Wednesday afternoon, apparently over a dispute
involving
>> > breaks during Ramadan....
>> >
>> > At issue is a request by Muslim workers to be able to take
their
>> lunch
>> > breaks at sunset to end their fast during Ramadan.
>> >
>> > United Food and Commercial Workers Local 7 spokesman Manny
>> Gonzales said
>> > that between 130 to 150 workers from JBS Swift & Co. had
been fired.
>> >
>> > The firings appear to be related to the walkout of as many
as 300
>> Muslim
>> > employees Friday. Many of the workers had been suspended
after
>> walking
>> > off the job before their shifts ended....
>> >
>> > But many of the workers who gathered at a Greeley park
Tuesday
>> expressed
>> > their dissatisfaction with negotiations by saying, "No
prayer, no
>> work."
>> >
>> > Swift spokeswoman Tamara Smid said in a written statement
that the
>> > workers were told they would be fired if they didn't report
to
>> work when
>> > recalled. Smid didn't specify how many workers were fired.
...
>> >
>> > Any thoughts?
>> >
>> > Eugene
>> >
>> >
>>
>>
>> Douglas Laycock
>> Yale Kamisar Collegiate Professor of Law
>> University of Michigan Law School
>> 625 S. State St.
>> Ann Arbor, MI 48109-1215
>> 734-647-9713
>>
>> _______________________________________________
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> _______________________________________________
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
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