There is “probably a widespread phenomenon” of employers illegally intimidating
their employees to work on Election Day, said long-time employment lawyer
Russell Mayer on Monday on the eve of elections, confirming numerous accounts in
different industries, including by other employment lawyers.
Aryeh
Rachlin, another long-time employment law expert who also worked at a large law
firm that represented one of the trade unions, agreed that there was a
widespread problem.
He added that it particularly impacted smaller
businesses, women, the haredi sector and Israeli-Arabs, among others.
A
number of other sources in different industries, including heads of
institutions, confirmed the phenomenon, but all wanted to remain off-the-record
to avoid retaliation, highlighting the sensitive nature of the
issue.
While Mayer said he had no statistics on the phenomenon, he said
that based on the number of inquiries he receives for guidance both from
employers and employees, he believes it is “not a small limited
phenomenon.”
Mayer said his impression was that many of the employers who
called him were looking “for excuses to allow them to compel their employees” to
work.
Israeli election law stipulates that Election Day is a paid
national vacation for the entire work force except for specifically designated
jobs, mostly in public services, such as the election commission workers, police
and transportation, but also including at least part-time hours (up to six
hours) for food establishments and some other workplace
categories.
Private sector employees must pay employees who do not work
on Election Day and may not compel them to work.
However, the law does permit employment on Election Day if an employee voluntarily consents to
work.
This is where much of the controversy can arise, as what is
“voluntary” can be ambiguous in the employer- employee relationship if an
employer asks an employee to work on a certain project, without making an
explicit threat, said Rachlin.
In other words, Rachlin noted many
employees “understand” from their employers what is “expected” to avoid getting
docked pay, or to not be replaced or retaliated against in some way down the
road without being told explicitly.
So there is a fine line between
whether an employee authentically “volunteers,” or feels compelled to do
so.
Rachlin said that the problem started outside of employers governed
by collective bargaining agreements as the enforcement standards and culture on
these issues were often uneven.
According to a memorandum disseminated by
Mayer, the law does not address the issue of how much employees who voluntarily
work on Election Day must be paid.
However, Mayer said that in view of
the prevailing practice among the General Union and employers, as well as the
payment provisions of Civil Service Regulations, the legal interpretation of the
former chairman of Central Election Commission and rulings of the Labor Courts,
an employee who works on Election Day is entitled to 200 percent of his average
daily salary, or alternatively, his regular salary with the addition of one
bonus vacation hour for every hour of work on Election Day.
Rachlin said
that many employers and employees were unaware of the possibility of being paid
200%, but in any event reiterated that it could not be forced on an
employee.
Mayer said that he gets a large number of inquiries from
English-speaking immigrants through referrals from Nefesh B’Nefesh and
AACI.
Mayer also stated that “abuse is probably across the board,”
impacting all sectors of society, but that new immigrants, Israeli- Arabs and
other sectors might be even “more likely taken advantage of,” either because of
ignorance of their rights. or because they are perceived by employers as
“weaker.”
Rachlin agreed with those sentiments and added that women also
often felt that they had less bargaining power and were more easily pressed by
employers to work.
Regarding haredim, Rachlin said the problem is even
more complex because many employers and community members look down on the
secular state and reject taking off work for a secular holiday like Election Day
the same as they reject observing a moment of silence on Remembrance
Day.
Rachlin explained the employers’ feelings as being that Israel is
far too employee-friendly, that they pay taxes “through the nose” and that
employees abuse a full day off on Election Day when they only need a short time
to actually vote.
Curiously, Mayer noted that he received many
dualinquiries recently both about Election Day rights and about snow-day
rights.
For example, during the recent snow in Jerusalem, many employers
and employees had disputes about whether the employee was entitled to a vacation
day if they could not get to the office, or if it was difficult for.
In
terms of recourse, Mayer said that employees can take the day off and try to go
to court if their salary is docked, but that few employees will view this as
worthwhile.
Rather, he said that Section 137 of the Election to the
Knesset Law provided a practical alternative: to approach the Central Elections
Commission and get protection or get the issued addressed.