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Legal to Force Employees to Work Holidays?

By Brett Snider, Esq. | Last updated on

As retailers are gearing up for the holiday shopping season, many employers are left wondering whether they can force their employees to work on the holidays.

The Huffington Post reports that workers for retail giant Kmart have alleged the company will not let them take time off around the holidays, specifically from November 17 to 30 and December 15 to January 4.

Can employers like Kmart really force employees to work on Thanksgiving and Christmas?

No Right to Time Off During Holidays

At the most basic level, there is no federal law requiring private employers to give their employees holidays, even federal holidays, as paid time off. Private employers are also not required by labor laws to provide any sort of additional "holiday pay" for time worked during holidays. (Contractual agreements can supercede this general rule, however.)

That means in general, private employers can require their employees to work Thanksgiving, Christmas, New Years, Easter, and even Arbor Day if they so choose. Private business owners are also not required to provide their employees with any paid vacation.

However, many employers do choose to provide their workers with some holiday paid time off, as a way to boost employee morale and let workers spend time with their families. Companies like Kmart can legally be stingy about time off requests during the holidays, as long as they properly notify employees and give equal treatment to requests.

Many employers will ask retail associates to work longer shifts over busy holiday shopping periods, but normal overtime payment rules still apply. For most small business owners, that means paying employees at least "time and a half" for every hour over 40 worked during that week.

While you aren't legally prohibited from being a miser about holiday time off, a less "bah humbug" way to keep employees working during the holiday is to offer incentives.

The Plain Dealer reports that Walmart, which previously worked their employees without meal breaks, is going to feed those employees working on Thanksgiving "a traditional Thanksgiving dinner during their shift, give them an extra day's pay, and offer them 25 percent off a future holiday shopping trip."

According to CNBC, Kmart will also offer their employees "holiday pay" during Thanksgiving, in which many stores pay anywhere from 1.5 to 2 times regular wages for hours worked during certain holidays.

Wondering how to craft and implement your company's holiday policy? Contact an experienced, local employment attorney to discuss your options.

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