Part time with full-time pay

In this edition of In the Trenches, Acme learns the dangers of mixing business with religion.

Holly Hach was hired as a project developer, a managerial job overseeing the day-to-day work performed by the six employees in the project group. This was a fast-paced operation in which conditions beyond one’s control could change quickly and demand a rapid response.

Holly has been strictly observant of her religion for the past 12 years and observed the Jewish Sabbath without fail. This prevented Holly from working or traveling between sundown on Friday and sundown on Saturday. During the winter, the sun set on the Acme plant as early as 4:30 p.m. The strict religious observance meant that Holly had to buy and cook her meals on Friday before sundown.

During her job interview, Holly revealed that she was Jewish and would need to leave early on Fridays. Sam Bucco, the project manager, indicated that the company could work that out.

Holly’s family lived in a large house located about 90 miles from the Acme plant. The house had been the Hach family more than 60 years. Holly also rented an efficiency apartment that was about 20 minutes from the plant. She lived at the apartment from Sunday evening to Friday morning and at the house from Friday after work until Sunday evening.

As far as Acme knew, the apartment was Holly’s official residence because it was the address she used for payroll purposes and any Acme paperwork that required an address. During her first six months heading the department, Holly left immediately after the lunch period on Fridays and sent her team an e-mail to announce that she was leaving. Several times, Holly didn’t come to the plant, sending an e-mail to her team from her handheld device as she drove home.

If exceptions are made for one employee, then why would it not be fair to make exceptions for all employees?

Soon, the employees in Holly’s department began to complain that Holly was always out of the office and sometimes couldn’t be located when questions arose. Others downstream in the work flow complained that Holly’s department was running behind schedule.

Sam discussed Holly’s performance with Acme management, but he took no action because Holly was scheduled for leave under FMLA for knee surgery in about a week. On the day before she was to go to the hospital, Holly announced that she’d be recuperating at her daughter’s house, the one 90 miles from the plant.

During the 12 weeks of leave, Sam assumed Holly’s job responsibilities and soon found deficiencies in Holly’s work, including ambiguous instructions issued to the team and the true level of the work backlog. It was during the FMLA leave that the workload in Holly’s department ramped up quite a bit. Sam had no choice but to bring in a contractor to help complete some of the work. During the spike in workload it became clear to Sam that Holly couldn’t perform this job if she continued to work only a half day on Friday.

Holly returned the day before her leave expired and Sam discussed with her Acme’s concerns about, and displeasure with, her job performance. Sam insisted that Holly make greater effort to perform the expected job duties and to remain at work until the normal quitting time on Fridays.

A few days later, Sam sent Holly an e-mail confirming their discussion about Holly’s work performance and work schedule. Holly replied that there was a preemployment understanding that she would work only half a day on Friday and that it would be impossible for her to stay until the normal quitting time. She remained adamant that Acme was reneging on the agreement to let her leave at 1:00 on Friday.

Sam and Acme’s HR director met with Holly. When Holly remained adamant that she was leaving at 1:00 p.m. on Friday, Acme offered a choice: either work until 3:00 on Fridays or go to a four-day work week with an appropriate pay reduction. Holly rejected both options and Sam terminated her.

Holly responded by filing suit against Acme claiming religious discrimination because Acme refused to accommodate her religious observance of the Jewish Sabbath.

How could this situation have been avoided? Should Acme avoid hiring anyone who makes nonstandard scheduling requests during the job interview? What scheduling options would have resolved this situation? How can Acme prevent such misunderstandings from arising again?

An attorney says:

Let’s make one distinction from the outset. Acme has a legal obligation to accommodate Holly’s religious beliefs by allowing her to leave work before sundown on Friday. Acme has no obligation whatsoever to accommodate Holly’s desire to travel to her family home 90 miles away before sundown on Friday.

What exactly was agreed to at the time Holly was hired is likely a subject of dispute, Holly’s version being that Acme promised her a four and a half day work week. Regardless of what might have been promised, however, Acme was entitled to change the rules if the arrangement was causing a problem for the company. Its only legal obligation was to accommodate Holly’s religious beliefs, providing it didn’t pose an undue hardship for the company. It could have required Holly, for example, to put in whatever time was required to accomplish her work tasks, even if that meant working extra hours on days other than Friday.

More perplexing, however, is Acme’s reaction to Holly rejecting both alternatives it gave her — work until 3:00 p.m. on Friday or reduce her work week to four days per week with an accompanying pay reduction. Why didn’t Acme simply put Holly on a four-day schedule and reduce her wages instead of terminating her?

This situation could have been avoided by taking greater care at the hiring stage. Acme should have confirmed in writing what was agreed upon and added the caveat that the company reserved the right to change the arrangement as needed for business reasons. This could have been included in Holly’s offer letter.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

A plant engineer says:

Acme could have avoided this situation if Sam would have been consistent in his hiring practices. Companies have “normal” start times and quitting times so everyone can work together as a team. Some jobs might not require a team concept but the job Holly was hired for clearly did. Shame on Sam for compromising team effectiveness by hiring someone who didn’t want to be a full–time leader. How poor would the effectiveness of all of Acme’s departments be if Acme allowed everyone to choose their individual schedule? Sam also could have avoided the religious discrimination claim had he only focused on job performance. Because he had “made the deal” with Holly concerning Friday’s quitting time, Sam should have focused on what was really important. Holly was expected to do her job even if she left early on Fridays. Sam has a responsibility to Acme and to the associates who work under Holly’s direction to ensure that Holly is performing her duties as she should. If she can’t get her duties done in an acceptable manner then Holly should be told that her work is lacking and Holly should be able to come up with a plan that works for her and her team. If not, then Holly should be replaced because of poor work performance.

I believe any company should be as consistent as it can be in hiring practices. To allow different start times and short schedules doesn’t promote organizational unity. This can vary based on different organizations, but would be considered abnormal in most work environments. If exceptions are made for one employee, then why would it not be fair to make exceptions for all employees? If that happens, we might as well close our doors.

Acme can avoid this by staying consistent in its hiring promises. It should be the responsibility of religious people to find jobs that fit within their religious framework and not try to force employers to accommodate their beliefs.

Jeffrey L. Strasser
Bacova Guild
(540) 863-2656
Strasser.Jeff@bacova.com

An academician says:

As a general rule, I’m pretty much against special arrangements whereby an employee is allowed to leave work early, or is exempt from certain duties, or is exempt from overtime, or exempt from working weekends, etc. It’s particularly problematic when the other employees don’t get such exemptions and must perform their work and often their colleague’s work when the exempt colleague isn’t on duty. Most of those special arrangements don’t work out. Often the work doesn’t get done, and the employees left on the job are unhappy because they’re stuck with the work while a colleague is off on personal business (sometimes with pay).

However, Holly’s case is bit more complicated in that her religious beliefs are protected by the EEOC, which says that an employer must “reasonably accommodate” the employee’s religious beliefs and practices. That’s something I would certainly endorse, and which the courts have upheld. And Acme acted within the law in attempting to make accommodations for Holly’s religious beliefs by allowing her to leave early on Friday.

EEOC also says that the accommodation shouldn’t impose an “undue hardship” on the employer. And in the definition of undue hardship are some of those things that Sam uncovered when he took over Holly’s job, such as the work not being done. My concern is that the issue here might be that Holly isn’t a good project manager, and if so, I don’t see the 3:00 p.m. quit time, or the four-day week, or any other schedule accommodations as addressing this problem. So, my advice to Acme is first to decide whether Holly is a competent manager. If she isn’t, she goes, at least as a manager. If she is competent, then let’s figure out how we might change schedules or the organizational structure to better use her skills.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu