130 Muslim workers fired over unauthorized breaks during Ramadan

Conkle, Daniel O. conkle at indiana.edu
Fri Sep 12 12:21:49 PDT 2008


I tend to agree with Doug (which is generally a safe position to take), but Eugene's question is interesting.  Is it fair to describe the question as follows:  Is conduct that *facilitates* religious exercise properly protected no less than the religious exercise itself?  Perhaps only if the facilitative conduct is, in context, essential (or at least reasonably necessary) to the religious exercise?  In the free speech context, I think the S. Ct. has indicated that the First Am. provides no protection for facilitative conduct; see, e.g., Clark v. Comm. for Creative Non-Violence.  In the free exercise/RFRA/RLUIPA context, this question may intersect with the issue of "substantial burden."  Cf. Lyng and the recent 9th Cir. Navajo case.

Dan Conkle
*******************************************
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
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________________________________
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Friday, September 12, 2008 2:46 PM
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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