Secunda on Religious Comp Time

Our own Paul Secunda has written an op-ed piece that appears in today's National Law Journal.  The subject is the federal government's policy of providing comp time for religious observance, which was the subject of a lot of debate following Paul's original post on the issue. 

Religious comp time. Ever heard of it? Neither had I, and I'm supposed to know about this stuff as a labor and employment law professor. . . .  Indeed, I would have never heard of religious comp time if it were not for an Oct. 12 article in the Washington Post describing abuses in this program. . . . . The article concerned itself with abuses of this program by some employees who were using religious comp time to play golf and go on vacation. But my question is more critical: Can such a federal employment program survive scrutiny under the establishment clause of the U.S. Constitution?

Congress established it as Title IV of the Federal Employees Flexible and Compressed Work Schedules Act of 1978. The regulations make clear that it is in no way connected to the premium pay provisions for overtime work for employees under the FLSA or Title V. Rather, it applies to all federal employees and provides them with time off for religious observances. More specifically, federal employees "whose personal religious beliefs require the abstention from work during certain periods of time may elect to engage in overtime work for time lost for meeting those religious requirements," and "the employee may work such compensatory overtime before or after the grant of compensatory time off." Advanced religious comp time must be repaid by the appropriate amount of additional work within a reasonable amount of time. . . .

[A] unanimous U.S. Supreme Court recognized in the 2005 case of Cutter v. Wilkinson that, although government may accommodate religious practices without violating the establishment clause, at some point such accommodation devolves into unlawful fostering of religion. I believe that point has been reached here, and the religious comp time program for federal employees goes beyond the limits of permissible government accommodation. . . .  [F]ederal employment alone does not place a special burden on religious practice, and there is no need for a legislative accommodation here. Religious federal employees still may use their annual leave time or other types of comp time to partake in religious observances. The religious comp time program should be challenged and found unconstitutional under the establishment clause as an unlawful governmental fostering of religion.

Check out the full piece, it's a good one!

-JH