Archive for the 'Employment' Category

Overtime Law Changes: How to Protect Your Business and Rights

Early in 2016, at the direction of President Obama, the Department of Labor (DoL) issued long awaited reforms to how overtime would be handled across the country.  The new rule, inventively called the Overtime Final Rule, is only the seventh time the Department of Labor has adjusted its rules for the changing times since nearly 80 years ago in 1938.  It would also be the first such adjustment in twelve years.  However, while the rule was initially set to take effect at the beginning of last month, the it’s looking more and more like the Overtime Final Rule may be even more long awaited than expected.  A ruling out of a Texas district court, temporarily preventing the Overtime Final Rule from moving forward, was recently upheld on appeal. 

Overtime Law Changes Department of Labor

What Does the Rule Cover?

So first things first, what exactly would the Overtime Final Rule do and why would anybody try to stop it?  The Overtime Final Rule was designed to update the salary exemptions to overtime.  Basically, if you make more than a certain amount–and your job requires a fairly high level of independent judgment and discretion on your part–an employer doesn’t need to pay you for overtime hours worked.  Overtime generally includes any hours in excess of 40 in a week, 8 hours in a day, or being required to work more than 6 consecutive workdays.  The Overtime Final Rule would have nearly doubled the cutoff point in pay before you are exempt from overtime.  The new cutoff would have jumped from exempting anybody making more than $455 per week all the way up to only excluding employees making $913 per week.  This amount would rise every year for the next three years to allow employers more time to adjust to the changes.  The DoL expected this change to make around 4.2M employees eligible for overtime pay around the country.   The new rule also sought to clarify the fairly murky area of the exact kind of jobs that can be overtime exempt.  However, it was the fact that it would require employers to make such huge changes in how they pay their employees that led to it being challenged as vigorously as it has been.  While rule may leave many employees excited about the prospect of a potential raise or overtime pay, the same prospect filled many employers with dread at having to budget in those changes as the DoL predicted that 4.2M new non-exempt employees would cost employers over $295M.

The response to the rule when it was first announced in May of 2016 was swift–a barrel of lawsuits against the DoL, its divisions, and its agents.   21 states, the Plano Chamber of Commerce and over 50 different businesses all sued in Texas District Court to try and put a stop to the new changes by arguing that the changes overstepped the DoL’s authority.  This led to Judge Amos Mazzant out of Texas issuing an unexpected emergency motion, days before the Overtime Final Rule was set to take effect, which prevented rule from moving forward anywhere in the country.  The federal government has appealed the ruling but until that case sees light–it’s currently in briefing until at least January 31st of this year–the Overtime Final Rule is stalled.

Is This the End of the Overtime Final Rule?

To call the Texas District Court’s ruling a setback to the DoL would be a dramatic understatement.  The case is still ongoing, upcoming decisions in the case include a request to stop the rule permanently.  However, as it stands the rule is stalled not dead–although the changing political climate may see the DoL abandon the case entirely.

With President-Elect Trump set to take office in a few weeks, there will be a changing of the guard at the DoL and until that changing of the guard it’s very unlikely there will be much action on the case.  Once the changing of the guard does occur, President-Elect Trump has appointed Andrew Puzder as his Labor Secretary–an outspoken critic of the Overtime Final Rule.  With this in mind, it seems unlikely that the case will be a high priority for the new administration and it may even be dropped–ending any chance of the DoL’s overtime changes taking effect.  Even if the case moves forward and the rules end up taking effect, a conservative majority in Congress would allow Republicans to kill the rules using a joint resolution under the Congressional Review Act.   

However, while things aren’t looking particularly good for the DoL’s rules, the case is far from over.  The Texas AFI-CIO–a prominent labor union–is currently seeking to join the case as a defendant in order to take over the case should the DoL end up walking away from it.  What’s more, the Congressional Review Act is an option that is very rarely used.  There may be life in the Overtime Final Rule yet.  So how do you plan for a future where the legal environment is totally up in the air?

What Do You Do Now?

So how do you move forward as a business?  Many have been busily preparing to adjust for the changes, however that in and of itself presents a challenge to employers.  What’s more, failure to properly classify an employee when it comes to overtime exemption can lead to costly lawsuits and fees.

The two options to deal with the changes is to either provide raises or reclassify employees.  Raises hit the bottom line while reclassification hits employee morale through the perceived loss of prestige and can require removing autonomy from an employee–sometimes even necessitating barring that employee from activities such as accessing emails while off duty.

As it stands, the Overtime Final Rule is simply not in effect and thus employers do not need to currently comply with its rules.  However, the injunction did not block all amendments the rules proposed–keeping sections increasing the cap on overtime exemption for particularly highly paid employees from $100,000 per year to $134,000 per year.  Thus, it’s important as an employer to be certain that employees exempted on this basis are properly classified. 

As to the remainder of the rules, there are basically two camps–employers who have already made changes to address the Overtime Final Rule and those who have not.  If you’ve made no changes, it makes sense to stay the course for now while preparing a plan to quickly move yourself in line witht he rules should they end up taking effect.

If you have made changes, the situation is a bit more complicated.  Rescinding raises and employment changes can be a tricky business, beyond the fact that it’s a painful HR move, it can give rise to legal claims against your business depending on how salaries or pay were agreed to.

As an employee it is important to keep an eye on where this law goes and make sure you are being compensated properly according to the law.  If you have been reclassified or given a raise, look to your employment agreements and figure out whether your employee can take back what they’ve given you.  What’s more, remember that an employer can rarely take back wages already paid under a restructured compensation plan.  Generally they will be limited to reducing future pay.

Surprisingly, businesses have by and large moved forward as it the ruling from Texas never happened.  Studies show the majority of small businesses–84% of them–have simply moved forward with raises, reclassifications, and employment agreements as if the rules had taken effect.  This is good news for employees.  However, many small businesses can ill afford the costs of such changes if they don’t have to.  For employees and employers alike, keep an eye on this case in the coming months–it has to come out of legal limbo sometime.

Michigan Man Takes Steps for the Right to Care for His Family

When a family member or loved one is sick and in pain, the first reaction of many is to drop everything and take care of them. This was certainly the case for Curtis Brown. When his wife was scared to go to the hospital alone to have a lump on her elbow examined, he took steps to ensure he could be there for her in her time of need. He went early to his job making paper and cardboard at mill owned by Rock-Tenn in order to complete his work in time to go to the hospital with his wife.

This was not the first time he had done something like this, Mr. Brown had been taking intermittent leave for years in order to take care of his wife due to recurrent episodes of distress and confusion coupled with chronic gastrointestinal issues. However, this was the last time Mr. Brown took such leave—at least with Rock-Tenn. When he went to leave, his employer demanded that he stay for the remainder of his appointed shift. Mr. Brown refused and was ultimately fired for insubordination.

Looking at this initially, your first reaction may be that Mr. Brown was in a tough situation but you have to work the shifts assigned to you.  However, federal law may offer Mr. Brown the protections to take work off to be with his wife. Thus, Mr. Brown brought a lawsuit against his former employer alleging violations of his rights under the Family and Medical Leave Act (FMLA)—a 1993 Act which requires certain employers to provide their employees with a certain amount of unpaid leave to take care of family members.

How Does the FMLA Work?

The FMLA requires employers to offer their employees at least 12 weeks of unpaid leave every year to take care of a family member. However, like all things in law, it’s not quite so simple as this.  The FMLA doesn’t apply to every employer, every employee, or even every illness.

In order to protect smaller employers from being overburdened by the requirements of the Act, the FMLA only applies to employers with more than 50 employees at a single location. Where this is the case, the employer must extend the family medical leave actprotections of the FMLA to all their workers who are employed within 75 miles of the place they have 50 or more workers.

Even if an employer has enough employees to be held to the requirements of the FMLA, an employee has to fulfill certain conditions before the employer must allow them FMLA leave.  Only employees who have worked for at least a year and at least about 25 hours per week for the last year qualify for the leave. What’s more, employees in the top 10% of pay within the 75-mile radius the employer covers are exempted from required coverage under the FMLA. There are also a few other exceptions to the Act such as elected officials.

Once all these ducks are in a row, and an employee is due protection under the FMLA, the question becomes what sort of situations require an employer to grant a request for unpaid FMLA leave. The FMLA requires leave for a number of things. However, the primary situations where it comes up are where an employee needs to care for a newly born, adopted, or fostered child, issues arising out of a family member’s military deployment, or to care for a family member’s—or recover from your own—serious illness.

As you might expect from a statute, the term serious illness is not left up to common sense interpretation. Instead, it is specifically defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.”  This means that you can’t get leave for check-ups and other routine medical care or for illnesses that come and go quickly like a common chest cold.

How Do You Ensure Your Rights Under the FMLA?

Even once you qualify for leave, you can’t just take it whenever you want, you have to ask your employer first. However, where the leave is qualified under the Act the employer has to grant it. Before taking leave it’s important that an employee notify their employer that they’re going to be taking FMLA leave and explain why, when, how often, and provide a doctor’s note or similar thing if your employer requires it. It’s also important to let your employer know if anything changes and, above all, that you plan to come back to work after your leave is over. When you can see the need for leave coming, the Act requires an employee to give this notice at least 30 days before they actually take leave.

Once you’re actually approved for leave, an employer can require you to use your paid leave—such as sick days—before starting in of your guaranteed 12 weeks per year of unpaid FMLA leave. However, once you’re on leave you have a number of legal protections that an employer must abide by. An employee must get the same health benefits they would get as if they were not on leave—although the employer is not required continue to provide life or disability benefits. When you return, your employer must reinstate all benefits and pay as well as give you back your old—or a comparable—position.

Where an employer takes action against an employee because they exercise their rights under the FMLA that can give rise to a retaliation claim against the employer. The Act also allows for employees to sue an employer for interfering with any of their rights under the FMLA in a type of lawsuit aptly named an interference suit.

State by State Differences

While the FMLA provides a minimum bar for protection across the country, many state have passed laws to expand the protection an employee would otherwise receive under the FMLA.

For example, Maine, Maryland, Minnesota, Oregon, Rhode Island, Vermont, Washington, and DC have all reduced the number of employees needed before an employer is required to provide employees the protections of the FMLA.  California, Connecticut, Hawaii, Maryland, New Jersey, Oregon, Rhode Island, Vermont, Wisconsin and DC have expanded the definition of a family member for FMLA protections within their states—primarily to include siblings, civil unions, domestic partners, same-sex partners, and in-laws.  In an even more substantial move California, New Jersey, Rhode Island, and New York all have passed laws requiring paid FMLA leave.

This is just a few of the state to state changes, there are several states which require employers to provide even more than the 12 weeks of leave necessitated by the FMLA. There are even a few states that have expanded the situations where you can take leave to include things like going to your kid’s school events.

Mr. Brown’s FMLA Case

Mr. Brown’s lawsuit started all the way back in 2013 and included both retaliation and interference claims under the FMLA. Just about a month ago, it finally moved past the summary judgment phase with a judge ruling in favor of Mr. Brown—allowing the case to be seen by a jury.

Rock-Tenn had long been arguing that the elbow “bump” Mr. Brown’s wife complained of was not a health condition covered by the FMLA because it did not involve “continuing treatment.” They also challenged the seriousness of the elbow bump as an injury. The court bought neither argument. Ms. Brown had seen a doctor several times for her elbow problems and ultimately the medical issue Mr. Brown was leaving for was providing emotional support due to ongoing anxiety issues. This was the actual cause behind his request for FMLA leave.

Mr. Brown’s case is far from over, but he will have his day in court. The idea that an employee could be put in a position where they have to choose between their family’s health and their job is a hard pill to swallow. That is why FMLA rights exist. Knowing your rights as an employee and your duties as an employer can help avoid the heartbreak of such a choice—or of a costly lawsuit.

Movement to “Ban the Box” Surges Across the Nation

An estimated 70 to 100 million people in the U.S. currently have some sort criminal background.  That’s between one in three and one in four people in the whole United States.  These criminal records, no matter how minor the offense, can be a real hurdle when looking for a job.  There is a real potential that an employer, seeing a prospective employee checked a box on their application indicating criminal history, would reject that application on that basis alone.

If the goal of our criminal justice system is to rehabilitate, barring ex-criminals from gainful employment out of hand is obviously far from ideal.  With this in mind, a movement to “Ban the Box” has swept across the nation.  24 states, many passing laws just this year, have passed laws barring public employers, private employers, or both from inquiring about criminal background on a job application.  To make matters even more complicated, more than 150 individual cities and counties have passed similar laws that apply just in those smaller jurisdictions.

The spread of these laws is still on the rise, just around a week ago Los Angeles County passed their own Ban the Box ordinance.  Connecticut has recently passed a Ban the Box law that will take effect January 1, 2017.  On November 30th, the federal government and the Obama administration even finalized regulations preventing the federal government from asking about an applicants’ criminal background before a job has been offered.  With the upsurge in “Ban the Box” laws, the question becomes fairly simple.  What do these laws mean for employers and employees?

Ban the Box Explained

While the details of any given Ban the Box law vary slightly from law to law, they all have the same basic goal.  They make it illegal for the type of employers named by the law to include questions or check-boxes on employment applications asking about the criminal background of an applicant.  They don’t, by themselves, prevent an employer from asking about criminal history altogether.  However, an employer must raise these questions later in the hiring process.  While violations of Ban the Box rules don’t generally allow for private lawsuits from applicants, applicants can report violations to the state who will then follow up with fines or a lawsuit of their own.

As mentioned above, with so many different places creating their own Ban the Box rules the exact boundaries of those rules can vary from place to place.  Depending on where an employer operates, there can be exceptions "Ban the Box"to Ban the Box rules for certain types of jobs—usually positions that are especially safety sensitive.  However, exactly what positions are considered “safety sensitive” is in and of itself a complicated legal concept that varies from state to state.  Employers seeking to avoid the legal troubles of a Ban the Box violation should speak to an employment law attorney to learn whether there is a Ban the Box law in effect where they operate and if there are any exceptions for the type of positions they are offering.

Beyond the Box: Other Employer Restrictions Regarding Criminal Backgrounds

Ban the box is the tip of the iceberg for state to state differences in how employers must approach an employee’s, or potential employee’s, criminal background.  Different states, and even cities and counties within those states, have their own wildly varying laws placing restrictions on either private employers, public employers, or both when it comes to approaching a job applicant or employee’s criminal background.

Depending on where they are an employer may be restricted as to asking about arrests that did not result in a conviction, criminal records which have been sealed or expunged, older criminal records (usually allowing for records no more than five to seven years old), certain types of crimes, or criminal convictions unrelated to the actual position sought.  While these laws have not seen the same rapid spread in recent years as Ban the Box, they continue to be passed nationwide.

In fact, earlier this year, Pennsylvania passed one of the most sweeping laws on the issue to date—albeit with a slightly different approach.  Pennsylvania’s new law requires law enforcement to remove records of arrests after three years have passed without a conviction.  It also allows individuals to petition to limit access to most non-felonies—with an exception for misdemeanors such as sex offenses, child abuse, or witness intimidation—on their criminal records after ten yeas free from arrest or imprisonment.  This law, coupled with the fact the Pennsylvania already bars all employers from inquiring about arrests that don’t lead to convictions, have left Pennsylvania with some of the nation’s strongest employment protections for former criminal offenders.

Are These Laws for the Best?

Ultimately, these laws are put in place to prevent returning criminal offenders from being shut out of employment opportunities before they get a chance to show their merits.  Those opposed to the spread of Ban the Box argue that employers are best suited to knowing their own employment needs and these sorts of restrictions needlessly increase the costs associated with hiring.  They argue that, especially in light of other restrictions on accessing criminal backgrounds, these laws can leave employers in situations where they are left without information they would consider crucial to a hiring or employment decision.

However, despite these objections, it seems more likely that the only way this would truly save costs when hiring for any position that wouldn’t be subject to the common exceptions is if the employer used criminal background as a quick way to disqualify candidates.  Where an employer uses criminal history in this way, it creates a serious roadblock to the rehabilitation and reintegration into society of former criminal offenders.

There is nowhere that employers are totally banned from inquiring into criminal history.  Ban the Box rules are exclusively a timing related restriction, preventing applications asking about criminal history.  Although there are limitations on how background checks can be used a check made as a contingency to employment will likely reveal any criminal history that could be an issue.  However, as seen in Pennsylvania, the limitations on criminal background checks are becoming further reaching.  There is a real push and pull between the interests of an employer in making informed employment decisions and the interests of a former criminal offender—and society as a whole—in a system that provides the best possible chance for rehabilitation.  That being said, a system where an offender is denied that chance outright before the word go is almost certainly not the right one.

Marijuana in the Workplace: Employee Protection as Legalization Spreads

This election has seen a huge boom in marijuana legalization. There are now 26 different states with marijuana legalized in some form or another. Of these states, eight have legalized recreational and medical use while the rest have restricted legalization to medical use.  In all these states, the legislature will have to deal with the unanswered question: how should marijuana be dealt with in the workplace?

Cases on the issue have already begun in many different contexts. Just recently the Massachusetts Superior Court addressed the issue of whether an employer needs to make accommodations due to disability for an employee’s medical marijuana use.  Massachusetts rules that despite the fact that the marijuana was prescribed to treat the employees Crohn’s disease, an employer is still under no obligation to accommodate such use.

This ruling is in line with a trend across the nation.  States are legalizing marijuana, but having difficulty in deciding how or whether to protect its use in an employment context. The approach has been different state to state—as it must be with marijuana illegal at a federal level—and has seen states dealing with employment issues from disability to off duty use, leading to adverse action to employment benefits to workers’ compensation.

Employees Treating Disabilities with Medical Marijuana

Massachusetts’ take on disability is not surprising. While the outer limits of employee protection based on disability is often determined by state law, the minimum protection is governed by the American’s with Disabilities Act (ADA).  The ADA is a federal act protecting against disability discrimination.  However, it explicitly does not it does not cover employees or applicants who engage in illegal use of drugs.  Since marijuana is federally illegal, this means that marijuana use cannot be a protected disability under the ADA. wellness programs

As mentioned above, states can expand their disability protections beyond the floor set by the ADA.  However, many states have not exactly been in a rush to do so when it comes to marijuana use.  Just like Massachusetts, Oregon courts have ruled that an employer need not make accommodations for medical marijuana use so long as it is federally illegal.  In California, the California Supreme Court ruled that employers have no need to accommodate medical marijuana use even when that use is off duty.  Although, it should be noted that this was decided prior to recreational legalization.

This being said, there have been other states that have passed laws protecting medical marijuana users as disabled. Arizona, Connecticut, Delaware, Illinois, Manie, Minnesota, and Nevada all have laws protecting employees who use medical marijuana against adverse action (firing, failure to hire, refusal of promotions, etc.) due to their disability.  The exact nature and scope of these rules varies state to state, but they all have the ultimate effect of protecting employees who use medical marijuana by placing some type of duty to accommodate that use on employers.

Punishing Off-Duty Use?

While disability laws deal with how an employer must deal with prescribed marijuana use, some states have dealt with off duty marijuana use in more broad strokes—deciding how marijuana use factors into a wrongful termination lawsuit.  Wrongful termination is any sort of firing which is contrary to law.  Disability discrimination can give rise to a wrongful termination lawsuit, but the cause of action is much broader than discrimination and includes basically any type of illegal firing.

The most famous of these cases occurred in Colorado after Dish Network fired an employee for off duty medical marijuana use. The firing took place before marijuana was made recreationally legal in the state, but the ruling occurred after this change.

The court ruled in favor of Dish Network. They decided that, despite Colorado law forbidding employers from firing an employee based on their legal off duty activities, an employer could freely fire an employee for off duty marijuana use so long as marijuana is federally illegal.  Thus, the employee was not wrongfully terminated. Similar rulings have been also been reached in Michigan and Washington.

Medical Marijuana Disqualifying Employees From Unemployment Benefits

Very few states have actually dealt with the issue of medical marijuana use and how it affects unemployment benefits.  Only two states have really dealt with the issue and they were unhelpful enough to come to opposite conclusions.

In Colorado, an employee fired for marijuana use—even if it is off duty prescribed medical marijuana use—is disqualified from unemployment benefits. Michigan, on the other hand, has determined that an employee cannot be disqualified from unemployment benefits for their lawful off duty marijuana use.

Workers Compensation and Cannabis

Much like unemployment benefits, rulings have been unfortunately sparse when it comes to workers’ compensation and medical marijuana. Workers compensation laws protect employers from liability in exchange for an agreement to pay for any injuries that take place in the workplace, regardless of cause.

Once again, the rulings have been contrary to one another depending on the state. Maine has ruled that workers’ compensation can’t require an employer to pay for medical marijuana prescribed as a result of a workplace injury.  New Mexico, however, has held that employers must pay for such treatment when it is prescribed.

Marijuana in Federal Workplaces

Even where marijuana has been legalized at a state level, many state employers may still be regulated by the federal Drug Free Workplace Act. This law requires all federal contractors and employers receiving federal grants to maintain a zero-tolerance policy towards any federally illegal drug use.

These workplaces may find themselves in a conflict between state and federal law. In these cases, federal law will generally win out.  What’s more, where a position is safety sensitive, employers may also choose to implement a zero-tolerance policy.  Safety sensitive is a very broad classification and such a classification, coupled with a zero-tolerance policy, will likely alter an employee’s rights under state law.

Complicated Cannabis: Evolving Law

The interactions between marijuana use and employment law are far from fixed and will continue to grow more complicated as the federal standing of marijuana forces all these interactions to be a question of state law. The states have already shown that they are far from in agreement as to how the issues should be approached and most states where marijuana is legalized in some form have not even begun to address these issues.

There are arguments on both sides for how the law should evolve. An employer would certainly not be criticized for firing an employee who showed up to work drunk. However, it would be a different matter if they fired that employee for drinking in their own home while off duty. While this is obviously not a perfect analogy, just as marijuana is not completely analogous to alcohol, it does highlight the question of whether how marijuana is viewed and treated on a legal level will change as recreational use becomes more widespread. Marijuana is now legal in more states than it is not, the law will have to scramble to keep up with the appropriate rights and duties of employers and employees.

Employment Rights in a Religious Work Place: The Ministerial Exception

Kate Drumgoole, New Jersey native, loved her job. She worked for Paramus Catholic High School as a guidance counselor and women’s basketball coach.  She also loves her wife, a fact the school was unaware of until recently.  Upon learning of Ms. Drumgoole’s marriage, the school fired her.  Ms. Drumgoole has since filed an employment discrimination lawsuit against Paramus.

Employers are forbidden from taking adverse employment action, such as firing an employee, based on a protected class like gender, race, or national origin. Sexual orientation, while not considered a protected class in every state, is a recognized protected class in New Jersey and has been considered a protected class by the Equal Employment Opportunity Commission for several years now. However, Paramus argues that they are protected by their First Amendment freedom of religion in firing Ms. Drumgoole for not living according to the tenets of their faith.  In her lawsuit, Ms. Drumgoole contests this allegation, pointing out that Paramus employs faculty members who are divorced or violate other Catholic tenets.

Ms. Drumgoole is not alone; more than 50 people have been fired or had employment offers rescinded by religious institutions for similar reasons since 2010. An Indiana Catholic School recently fired a teacher of purely secular topics after it came to her attention she used in vitro fertilization to become pregnant—calling her a “grave immoral sinner.”  An Ohio woman was fired by a religious institution earlier this year over being artificially inseminated. In Florida, a woman was fired for becoming pregnant outside of marriage.

Discrimination based on pregnancy is well established as gender discrimination, a federally protected class throughout the U.S. So how can religious institutions make employment decisions based on such clearly discriminatory reasons without fear of lawsuits such as Mrs. Drumgoole’s?  The answer lies in the interplay between employment rights and freedom of religion—the ministerial exception.

The Ministerial Exception and the Hosanna Case

To preserve the separation of church and state, as well as the free exercise of religion, employment law has a carve out for religious institutions, allowing them to favor those who share their beliefs. The Ministerial exception is so named because the employees who typically embody this carve out are church minsters. The exception is an affirmative defense—it must be proved by a religious employer seeking its refuge—which has historically been interpreted to allow discrimination on the basis of religion, but not as a loophole to any neutrally applied valid law. It specifically wasn’t generally considered an exception to non-religious discrimination.  This changed with the 2012 Supreme Court case which first recognized the ministerial exception—Hossana-Tabor Evangelical Lutheran Church v. EEOC.

The case was brought by Cheryl Perich, an ordained teacher at a Hossana who went on disability leave after she was diagnosed with narcolepsy. After six months leave, Hosanna asked Ms. Perich to resign.  Ms. Perich refused and threatened a lawsuit for violation of the American’s With Disabilities Act which requires employers to make reasonable accommodations for employee’s with disabilities and forbids discrimination based on an employee’s disability.  Hosanna fired Perich, explicitly over her disability.  Perich sued.

Unfortunately for her, the Supreme Court unanimously came out in favor of a particularly strong version of the ministerial exception. They ruled that employees who have a role in conveying the Church’s message and carrying out its mission” are barred by the First Amendment from suing over employment discrimination. This broad protection meant that religious institutions are totally insulated from discrimination lawsuits so long as the person suing them counts as a “minister.” This left the question, who qualifies as a minister.

Perich was ordained, but spent only a small portion of her time teaching anything that had to do with religion. However, the Court certainly felt she qualified as a minister. Unfortunately, the Court was also intentionally sparse on exactly why. They wanted to avoid a clearly delineated test for fear of excluding religions with different traditions. They did make it clear that the portion of time spent with religious duties is a factor, but not a deciding one on its own. However, as an ordained minister in both Hosanna and her own eyes, the Court felt there was little doubt Perich was a minister.

The Legal Landscape After Hosanna

After Hosanna, many have questioned the breadth of the ministerial exception.  The exception has seen some abuse. Catholic schools adding “minister” to every employee’s job description from teachers to receptionists to janitors.  Religious institutions often supplement this argument by making all employees sign a contract agreeing to uphold the tenets of their faith.

The flip side to this potential is the sanctity of church and state. Should a religious institution be legally forced to employ somebody who conflicts with their beliefs? As an extreme example, a synagogue shouldn’t have to employ a Holocaust denier.

The happy medium likely extends the exception more narrowly, to people whose positions implicate primarily religious duties. As it stands, the ministerial exception is extremely broad. The current state of the law bars ministers from bringing any employment discrimination or retaliation against a religious employer, regardless of whether the discrimination is related to religious tenets. As mentioned above, this clarification is a tricky prospect to say the least due to the differences between religions.

The truth is, since Hosanna the courts have done more to expand the exception than limit it.  There are some courts, such as this year’s Fratello v. Roman Catholic Archdiocese of New York, which have applied Hosanna as a balancing factor test looking at whether 1) the school held the employee out to the world as a minister, (2) the employee’s title connoted a religious “calling,” (3) the employee held themselves out as a minister and (4) the employee had religious responsibilities.  However, prior to this case the vast majority of courts have given much more deference to the religious organization’s categorization of an employee.

The cases discussed in the beginning of this article all deal with employees with completely or primarily non-secular duties. Cases like Ms. Drumgoole’s, pitting protected groups and employment discrimination against the ministerial exception, will help winnow down the exception and assist courts in understanding when a religious institution is properly due the protections of the First Amendment. Generally, the Constitution provides rights to protect yourself—not assert those rights as a license to discriminate or diminish the rights of others.



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