Arbitrator Rules That Employer May No Longer Deny Christmas and New Years Pay to its Food Service Workers
On January 6, 2020, a neutral Arbitrator ruled on behalf of UNITE HERE, Local 26, that Chartwells College of the Fens must pay Christmas and New Years Day holiday pay to an employee who called out sick more than a week before because of a death in the family. Attorney James Hykel represented the Union in the arbitration case.
The parties’ contract states: “An employee who is scheduled to work must work their scheduled hours on the day before the holiday, on the holiday, and on the day after the holiday or they will not be paid for the holiday unless it is an excused absence.” The Employer claimed that it did not have to follow the parties’ contract because its Employee Handbook directed that an employee had to work their last “scheduled shift” prior to the holiday in order to get holiday pay. Since these employees don't work during the schools’ holiday breaks, the Employer claimed it could deny holiday pay to any employee who did not work their last shift before break or their first shift back from break.
The Arbitrator appropriately rejected the Employer’s argument, agreeing that the contract language requires only that an employee work their scheduled hours on the calendar day before or after any holiday. He agreed with Attorney Hykel's argument that the contract’s terms take precedence over both the non-negotiated employee handbook and the Employer’s claimed past practice of enforcing it, particularly since the Employer did not consistently enforce the alleged past practice it was asserting.