The debate over how employers should handle time off for the Thanksgiving holiday is taking a new twist this year. While the last few holiday seasons have seen more retailers expanding Black Friday to include all or part of Thanksgiving day, this year the backlash is heating up as a number of major players gamble that a nobody-has-to-work policy will produce enough goodwill to offset sales lost to competitors choosing to open during hours traditionally set aside for turkey and football. 
The parent company of Marshalls and T.J. Maxx explains its decision to close by saying, “We consider ourselves an Associate-friendly Company.” A GameStop statement says it will close “out of respect for our store associates and their families and friends.” Other holiday-shopping leaders have made similar statements.
But some employers don’t have a choice to close, and others make the business decision to open on the holiday. In a recent Bloomberg BNA poll of HR and employee relations executives, 33% of responders said that at least some employees must work on Thanksgiving at their company.
That means hard choices have to be made about who has to work and who can spend the day eating, visiting, and sleeping off a big dinner.
Legal issues to consider
When making decisions about which employees get time off, employers need to keep a few legal issues in mind. David L. Johnson, an attorney with Butler Snow LLP in Nashville, Tennessee, reminds employers that decisions must be consistent with any applicable collective bargaining agreement or other established policy. Also, employers must take pains to ensure that protected traits such as gender, race, age, disability, religion, ethnicity, etc. don’t play a role in the decision.
For example, Johnson says if a disproportionate number of employees of a particular protected class are required to work on the holiday without a justifiable explanation such as a bona fide seniority system, then the employer might face claims of discrimination.
Jane Pfeifle, an attorney with Lynn, Jackson, Shultz & Lebrun, P.C. in Rapid City, South Dakota, agrees. “As always, treat similar people similarly. If you have a policy, follow it. If not, notify employees well in advance how you will decide who has to work.”
Strategies for scheduling
Inevitably employers will occasionally face conflict over who gets the day off. Easy answers may not exist, but employers do have strategies to follow. “Many employers take into account seniority when deciding which employees must work on holidays such as Thanksgiving, and this is widely considered to be fair and appropriate,” Johnson says.
Other practices include allowing employees to choose to be off either Thanksgiving or another holiday such as Christmas or New Year’s Day, but not both, Johnson says. Also, requiring all employees to work on Thanksgiving but only for a half day is another option. Another possibility is to pay employees extra to work on Thanksgiving. Employers also might allow employees who work on Thanksgiving to take Black Friday off.
Pfeifle suggests offering employees the chance to volunteer to work with an expectation that they will have first choice not to work a different holiday. “Paying a premium for holiday work certainly encourages volunteers,” she says. She also says most employees understand using seniority to determine who gets the time off as long as they know what is expected. But, “in terms of morale, it’s often better to change it up,” she says. “What many employees object to is one employee getting in her requests first and they don’t have an opportunity to make a request.”
Although morale issues surrounding time off at Thanksgiving can be complicated, the non-religious nature of Thanksgiving lessens the chance of potential legal issues, Johnson says. “Unlike days such as Christmas, Good Friday, Yom Kippur, etc., employers are much better insulated from claims of religious discrimination when making decisions about which workers must work on Thanksgiving,” he says.
Sometimes employers have the luxury of simplifying the issue by just closing for the holiday even without any legal obligation or risk. “In the grand scheme of things, there is relatively little legal exposure for employers who choose to be open on Thanksgiving, provided that they use common sense practices when determining who must work,” Johnson says. “Nevertheless, some employers may decide that morale problems caused by requiring employees to work on Thanksgiving do not warrant the benefits of remaining open during the holiday.”