130 Muslim workers fired over unauthorized breaks during Ramadan
David E. Guinn
davideguinn at hotmail.com
Fri Sep 12 12:53:13 PDT 2008
I think one problem you run into is that "breaking the fast" is an act with significant religious and cultural meaning. I don't know if it can be characterised as a religious rite -- but it is very, very close to one if not. While taking an energy bar or water meets the physical need, that would be like substituting water and an energy bar for the wine and bread at a seder.
David E. Guinn, JD, PhD
Recent Publications Available from SSRN at
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608
Subject: RE: 130 Muslim workers fired over unauthorized breaks during Ramadan
Date: Fri, 12 Sep 2008 12:21:30 -0700
From: VOLOKH at law.ucla.edu
To: religionlaw at lists.ucla.edu
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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>
>
_______________________________________________
> To post, send message
to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change
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> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>
Please note that messages sent to this large list cannot be viewed as
>
private. Anyone can subscribe to the list and read messages that are
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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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