Inadvertent Legislative Action Stirs Up Virginia's Day of Rest Law

In April 2004, the Virginia General Assembly unintentionally amended Virginia's Day of Rest Law to remove the exemptions for certain employers. On July 13, 2004, the General Assembly fixed its mistake and restored the exemptions, but not before CNN and other media outlets gave it significant attention. As a result of the flurry, employees of covered employers are demanding their rights under this law.

Virginia's Day of Rest Law, VA Code §§ 40.1-28.1 et seq., provides that Virginia employers shall "allow" each employee at least one 24-hour period off from work each week. "Nonmanagerial" employees are entitled to choose Saturday or Sunday as their day of rest "upon the filing of written notice by the employee with the employer." All employees may choose Sunday off, while only employees "who conscientiously believe that the seventh day of the week ought to be observed as the Sabbath" are allowed to select Saturday off. The law also provides that "no employer shall, in any manner, discharge, discipline or penalize such employee for exercising his rights under this section."

The fine for violating this law is $250 to $500 for each offense. Employers who violate this law must also pay employees three times their normal wages for the Saturday or Sunday work.

Many employers are exempt from this law, including employers engaged in transportation, manufacturing, publishing, vehicle service and repair, movie theaters, radio and TV stations, sporting events, entertainment and recreational facilities, hospitals, pharmacies, wholesale food suppliers, restaurants, hotels and motels, real estate, and several others. Other employers are not exempt, including most retail employers, financial services employers, and construction employers. (View complete list of exempted employers)

To comply with this law, an employer should schedule a day off for any employee who requests a day off. The safest course for employers not exempt from the law is to schedule each employee for one full day off each week, even if the employee does not request it.

If a "nonmanagerial" employee provides management with written notice that the employee wants his or her day off to be Saturday or Sunday, the employer should allow him to take that day off. The exception to this is if the employee asks for Saturday off and the employer has a reason to know the employee does not "conscientiously believe" Saturday is the Sabbath. "Written notice" likely includes e-mail.

Supervisors should be careful not to say anything to the employee that expresses displeasure over exercising his or her rights to have a day off. We recommend that supervisors should refer all questions about the Day of Rest Law to human resources personnel.

Finally, if an employee asks questions about his or her rights under the Day of Rest Law, give accurate information. Non-exempt employers are not under any obligation to volunteer information about the employees' rights under this law, but they should be very careful not to say anything misleading about those rights. Therefore, if an employee asks "Can I have Sundays off?" the response should be "All requests for Sundays off must be in writing." Then, if the employee submits a written request, he should be allowed Sunday off.