Overtime for Lost Time

Q. I gave my boss months of advance notice of my need to take vacation days during the fall holidays (Rosh Hashana, Yom Kippur, Sukkot, Simchat Torah), but she is still upset at the disruption and is demanding that I work overtime to make up some of the lost time. Is this a fair demand?

A. This question is relevant for employees who wonder if they are being put upon, as well as for employers who want to adopt a fair policy to workers whose off-day needs are off the beaten track, for religious or personal reasons.

The obvious answer is that both sides need to display flexibility. The employer should try and see if the employee's needs can be accommodated with a little bit of good will, while the employee needs to display understanding towards the needs of the workplace. Let's see what lessons Jewish tradition bears for the exact boundaries of this mutual accommodation.

What is considered "duress" on the part of the worker? The Shulchan Arukh (The Code of Jewish Law) rules that a worker is not allowed to take off from work when leaving would cause a loss to the employer. But an exception is made in the case of duress; the examples given are when the worker or a close family member become ill, or when they are confronted with mourning. (1)

But the employer also has to show flexibility. Any absence can cause a loss if the employer doesn't take steps to prevent it, but the employer has a case against the worker only if he was unable to rectify the problem in some other way, for example by hiring substitute workers.

Likewise, the loss has to be genuine. Employers have a legitimate interest in having worker attendance be regular, but they can't create sanctions for an excused absence when the only "loss" is loss of routine. We can learn this from the Torah prohibition against employing an indentured servant in "crushing" labor (Leviticus 25:43). Rashi's commentary explains that "crushing" labor doesn't mean difficult tasks which crush the body, but rather unnecessary tasks which highlight the employer's dominance and thus crush the spirit. (2)

Requiring adequate "face time" (time spent in the workplace together with co-workers) is not in itself an arbitrary demand; it is necessary for teamwork and for generating a good workplace routine. But when the worker's need for flexibility is due to true duress, such as religious obligations, physical disability, etc. then the employer is acting unfairly by failing to make reasonable accommodations.

Sometimes worker absence, even if it is unavoidable, creates a genuine and unavoidable hardship for the employer. In these cases the worker should show understanding for employer demands to make up the shortfall, for example by putting in extra hours. But employers need to ask themselves if the hardships are genuine and unavoidable; if the only loss is a break in routine, or if a little forethought could keep things running smoothly, employers should accommodate the occasional "exceptional" absence without making punitive demands.

SOURCES: (1) Shulchan Arukh Choshen Mishpat 333:5. (2) See also Maimonides Code, Avadim 1:6.