The HR Grinch: The Pitfalls Of Businesses That Open For The Holidays

by Hirschfeld Kraemer LLP
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There was a lot of buzz in the weeks leading up to Thanksgiving—buzz which will continue through the Christmas holiday—about retailers and other businesses that not only opened on “Black Friday,” but also on Thanksgiving Day itself.  (Among developed or “first world” nations, the United States is the only country that does not guarantee paid vacation or holidays.)  This year, Staples, Toys R Us, Macy’s, Kohl’s, Office Max, Gap, Banana Republic, Old Navy, Kmart, Walmart, and Target were among the notable retail heavy hitters that opened on Thanskgiving—many of them, including Macy’s, for the first time ever.  Meanwhile, other retailers such as Costco, Patagonia, REI, P.C. Richard & Sons, Marshalls, Ross Dress for Less, TJ  Maxx, Radio Schack, Apple and Nordstrom elected to remain closed on the holiday, drawing kudos from employee rights groups and a growing chorus of others who think that retail operations on Thanksgiving is a bridge too far.

If money talks—and it certainly does—there is no reason to expect that this trend of holiday business openings will not continue.  The Cleveland Plain Dealer noted that, although Thanksgiving Day cannibalized Black Friday sales a bit, the combined two day gross sales across the United States checked in at approximately $22 billion dollars.  That will buy a few drumsticks and a whole lot of stuffing.

On the opinion/reader feedback pages of newspapers, and in the legislature of at least one state—Connecticut—there seems to be a growing grassroots effort to limit such openings, or to at least increase the required pay of such workers.  The Connecticut proposal, for example, calls for employees to receive triple their regular hourly wage. Of course, there are three New England states, Massachusetts, Rhode Island, and Maine, that still have blue laws on the books that prohibit most business openings on Thanksgiving, Christmas and major holidays.  (There are exceptions, of course, including public bath houses…one’s priorities must be in order.)

One would think, given the “blue” nature of California’s electorate, and given the relative strength of unions here, particularly the Service Employees International Union, that there would be a movement afoot to institute our own blue laws on retail openings.  Well, don’t hold your breath: although our own tepid blue laws prohibit alcohol sales between 2 a.m. and 6 a.m. (whatever are we going to do for those 4 hours?), and although state law also prohibits the mating of animals within 1,500 feet of a school, house of worship, or tavern (so many one liners to deliver, and such limited space), there is no indication that the State Legislature is going to lock the doors of Wal Mart on Thanksgiving, Thanksgivvukah, Christmas, or any other day.  So, if jostling in a human sea of shoppers on a major holiday is your idea of a good time, then let the good times roll.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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