Yarmouth Firefighters and Attorney Patrick Bryant Win Holiday Pay When Federal Offices Closed By Executive Order, Even Without Past Practice

November 05, 2020

Many collective bargaining agreements provide benefits for holidays, such as paid leave, a stipend in lieu of paid leave, and/or special overtime pay. Some contracts cover some or all established holidays, and others add special holidays, whether "floating holidays," anniversary holiday, and others.

What happens if a new holiday is declared during the life of a collective bargaining agreement? The same benefits for these new holidays should be provided if there is a past practice extending such benefits to new holidays and/or if there is language in the contract that can be interpreted to cover new holidays. For instance, the collective bargaining agreement applicable to Town of Yarmouth Firefighters has the following sentence: "Any other day that is officially declared a holiday by the State or Federal Government during the fiscal year shall be added to the above list and compensated accordingly."

Attorney Patrick Bryant asked an arbitrator to apply this language to the President's Executive Order closing federal offices on Christmas Eve 2019. The Town had never provided holiday pay for previous closures of federal offices, whether the closure was for extended holidays or national days of mourning. Even absent past practice or the use of the word "holiday" in the Executive Order to describe the December 24 day off, the arbitrator agreed that the Town was required to treat the day as a holiday under the plain language of the collective bargaining agreement. That is because the President's authority to close federal offices stemmed from a statute on holidays, the federal employees were compensated as if a holiday was declared, and many courts have interpreted such executive orders to be holidays in other contexts.

Therefore, unions should review their holiday provisions to see if they provide a benefit for new holidays and/or for closure of state or federal offices. You should explore the specific language in your contract (such catch-all provisions are phrased differently), the bargaining history and past practice to help prepare the union for a demand that your members receive this benefit.

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