130 Muslim workers fired over unauthorized breaks during Ramadan
Volokh, Eugene
VOLOKH at law.ucla.edu
Fri Sep 12 13:15:27 PDT 2008
I realize that if the Muslim breaking of the fast after Ramadan is a
religious ritual like the Seder, or very close to it, then my question
becomes moot. But do we know that this is indeed so for Muslims?
Eugene
________________________________
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of David E. Guinn
Sent: Friday, September 12, 2008 12:53 PM
To: Law & Religion issues for Law Academics
Subject: RE: 130 Muslim workers fired over unauthorized breaks
during Ramadan
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
<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
>>
>> _______________________________________________
>> To post, send message to Religionlaw at lists.ucla.edu
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>
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get
password, see
>
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
> posted; people can read the Web archives; and list
members can
> (rightly or wrongly) forward the messages to others.
>
>
>
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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