Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

In a unanimous decision this week, the United States Supreme Court recognized a “ministerial exception” to federal discrimination laws. Hosana-Tabor Evangelical Lutheran Church and School v. EEOC  The employment issue decided by the Court concerned the termination of Cheryl Perich, an elementary school teacher employed at a religious school.

Perich suffered from narcolepsy and was on disability leave from her teaching position. She demanded to return to her position, but she was denied the opportunity by church administrators, and she threatened to file suit for discrimination under the ADA. Her actions were determined to be insubordinate and disruptive and her conduct was viewed as damaging to working relationships, as noted in her termination letter.  “According to the Church, Perich was a minister, and she had been fired for a religious reason-namely that her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.”

EEOC filed a claim asserting Perich had been fired in retaliation for threatening to file an ADA lawsuit. The case turned on whether Perich’s teaching position fell under the “ministerial exception,” which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions. The Court reviewed her job duties which included teaching a full secular curriculum, teaching daily religion classes, commissioning as a minister, and regularly leading students in prayer and worship.

The Court stated:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

The Court declined to adopt a rigid formula for deciding when an employee qualifies as a minister, but offered an analysis which reviews multiple factors and considers all of the circumstances. Key factors include whether the employee: (1) is “held out as a minister;” (2) underwent significant training; (3) was formally commissioned; and (4) performs “important religious functions.” The Court went on to explain the exception may apply even if the clear majority of an employee’s duties are non-religious, and that non-religious functions took up a vast majority of the employee’s work.

Religious employers can breathe a sigh of relief, and even shout out praise for a prayer answered. Under this ruling, more church employees will qualify under the “ministerial exception,” thus protecting churches, synagogues, and temples from federal and state discrimination suits.

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My law partner and I have blogged, trained, and also counseled clients about the importance of having updated Employee Handbooks at their workplaces. A court case out of Pennsylvania confirms the point we have been trying to make at an expensive price for the employer!

According to Pennsylvania attorney Jodi Frankel, Wal-Mart was just ordered to pay $187.6 million in back pay, damages, and fees to 187,000 current and former employees. It seems Walmart included paid break language in their Employee Handbook, and then failed to provide the benefit.

Frankel noted the Handbook policies in question “…[n]ot only guaranteed, but also mandated, a single fifteen-minute rest break to an employee who worked more than three hours in a shift, and two such breaks if an employee worked more than six hours. Pursuant to the policy, the breaks were to be ‘full, timely, uninterrupted’ and employees were to receive compensation for break time at the applicable rate of pay. The rest break policy set forth in Wal-Mart’s employee handbook, which was provided to all employees at the start of employment.”

While the Handbook stated it was not to be considered a contract by the employee, the Pennsylvania court found Wal-Mart had in fact made a promise regarding rest breaks, and that the promise amounted to a contract. The facts the Court found compelling included Wal-Mart had repeatedly held out rest breaks to employees as a benefit of being employed at Wal-Mart during employee orientation, they mentioned breaks in numerous postings at the workplace, and had taken disciplinary action against managers and employees for failure to follow the rest break policy.

While a Pennsylvania court case interpreting Pennsylvania law is not determinative in Minnesota workplaces, this case does offer some insight for Minnesota employers. Careful attention was paid by the Court to Wal-Mart’s Employee Handbook, and comparison to its actual business practices.

Since this is a start of a new year, it is the perfect time for employers to review and update their employee handbooks to insure they are consistent with current business practices. Also remember to update your policies when you update technology. If the start of a new year doesn’t inspire you to review your business practices, consider the cost and expense of litigation over an employee handbook issue.

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I am pleased and grateful that our blog was listed as one of the Top 25 Minnesota Blawgs of 2011, by editors of the Minnesota State Bar Association Legal News Digest and Practice Blawg. My law partner, Tiffany Schmidt, and I both enjoy sharing our thoughts and comments on topics important to employers. We are thrilled with the recognition, and it validates our goal to provide a common sense resource for employers.

The 2011 list of Top 25 Minnesota Blawgs is impressive, and we are honored to have our blog included on such a notable list of blogs.

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There is a public uproar in Minnesota about a Stearns County Deputy having received over $200,000.00 in salary and benefits, while facing 22 felony counts of criminal sexual conduct with minors. Recently his criminal trial was postponed again, and he continues in a paid status, approaching the start of his third year on paid leave.

Deciding to place an employee on paid or unpaid leave while criminal charges are pending, is not a new concept. An often over-looked 1997 U.S. Supreme Court case ruled, a public employee may be placed on unpaid leave while facing felony charges. In Gilbert v. Homar, the Court addressed the issue of a police officer facing criminal drug charges, indicating, “…[t]he State has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers…We think that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense.”

The Court identified three distinct factors to consider in their analysis. First, the private interest affected by the official action, (i.e the loss of the deputy’s paycheck); Second, the risk of an erroneous deprivation through the procedures used, (i.e. are the charges legitimate?); And finally, the Government’s interest,(i.e. the taxpayers interests.) I have no knowledge whether the Gilbert case was taken into consideration when Stearns County decided to continue the deputy in a paid status, but there are presently some compelling facts which indicate continuing the deputy in a paid status may not have been necessary. The deputy was in charge of the local Explorer Post, and at least one of the alleged victims was an Explorer Scout. Also, the beyond a reasonable doubt standard necessary to support criminal charges, is substantially higher than the clear and convincing or preponderance standards typically found in an employee discipline case before an arbitrator.

While it is true the Gilbert case involved a short suspension and not the two year time frame in Stearns County, the question remains, after consideration of the factors presented by the Court in the Gilbert case, is it fiscally responsible for a governmental entity to be paying an employee for two years to sit at home.

My law partner previously mentioned the Gilbert case in a blog about a recent arbitration case concerning a teacher facing third degree criminal assault charges. The teacher’s union filed a grievance arguing the teacher should been placed on a paid leave while the criminal charges were pending, not an unpaid leave. The arbitrator did not agree and denied the union's grievance.

The decision over whether to place an employee on paid or unpaid status while serious felony criminal charges are pending is a difficult one, and should be made only after a careful analysis of all of the facts in light of the Gilbert case. The decision should be intentional, as the cost to the taxpayers can be very high. Unpaid leave is clearly an option that should not be overlooked by employers.

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Apparently, the National Labor Relations Board (NLRB) can’t seem to make up their mind, because just before the holiday weekend it announced another postponement of the effective date for private sector employers to post the notice about employee rights. This is the third time the NLRB has delayed the effective date for the employee rights posting. Most private sector employers whether or not they have a union, were initially required to post the notice effective November 14, 2011. That date was later changed to January 31, 2012, and now the deadline is April 30, 2012.

Here is a link to the poster, which can be downloaded for free from the NLRB website. The poster is required to be 11 x 17 inches in size, so if you don’t have the capabilities to print on 11 x 17 paper, then print the two page 8.5 x 11 version, and tape the pages together. The NLRB also has the posting available in 26 other languages for download from their website. If 20% of your workforce speaks a foreign language, the poster must be posted in both English and that foreign language.

This employee rights posting covers employee rights to act together to improve wages and working conditions, to form and join unions, and bargain collectively. The posting will include examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

My law partner, Marylee Abrams and I will be presenting to the White Bear Area Chamber of Commerce on Thursday, February 2, 2012, “Did You Know, Even If Your Employees Are Non-union the National Labor Relations Act, May Apply To Your Business?” We will be discussing who the National Labor Relations Act applies to, the NLRB’s new posting requirement on employee rights, and updates on recent litigation regarding employee use of social media. If you want to learn more about this posting requirement and whether or not your business is required to post the employee rights poster on April 30, 2012, please join us.

Mark your calendars for April 1, 2012 to research if you are required to post the NLRA's employee rights poster at your workplace.  If so, be sure to download and hang the poster prior to the April 30, 2012 deadline.

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I have always liked the quote attributed to Lao Tzu - "Give a man a fish, feed him for a day. Teach a man to fish, feed him for a lifetime." Kiva.org embodies this ideal through global microfinance.

Kiva is an on-line lending platform which allows individuals in the developed world, to make small business loans to entrepreneurs in the developing world. When I opened my law firm in 2008 with my law partner, Tiffany Schmidt, I looked for a symbol of our entrepreneurial spirit, and I found Kiva. To date, I have successfully made 8 loans, including loans to a retail business owner in the Congo, a general store owner in Rwanda, a charcoal sales person in Ghana, a single mother raising chickens in Tanzania, a group of women producing food for sale in Paraguay, and a cattle farmer in Azerbaijan. I was notified the loans had been repaid and today, I made loans to a group of women selling flour and cooking oil in Sierra Leone, a single mother of three with a garment business in Mongolia, and a group of farmers in Kenya to purchase fertilizer and seed for the 2012 planting season.

As my law firm has grown, it has been fun to receive updates on my Kiva loans, and learn about the progress of the global businesses I am helping. Each loan has been for the sum of $25.00, a relatively small amount in western standards, but the global impact has been far greater as people build small local businesses, which in turn help raise their families, and lead to self-sufficiency.

Kiva was started by Mike and Jessica Flannery in 2004. They recognized many people in developing countries had no access to affordable credit. Kiva.org offers loans to handpicked microfinance institutions at 0% interest. These microfinance institutions, in turn screen local applicants, and lend money to individuals at a low interest rate. Updates on loan repayment are provided, and when the loans are repaid, the funds are available to re-loan to another small business enterprise.

During this holiday season, please consider microfinance, and help teach someone to “fish.” The world can be a better place, one small business at a time.
 

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The NLRB just issued a press release reporting the Boeing case has been resolved. You may recall the case was filed as an unfair labor charge in April, in response to public comments Boeing executives made to the press. Boeing was accused by the International Association of Machinists of opening a non-union Boeing 787 aircraft plant in South Carolina, in retaliation for a union strike. Executives commented about the union labor costs in Seattle due to a strike in 2008, in relation to their decision to open the production plant in non-union South Carolina.

The case was long, drawn out, and expensive. Boeing was restricted from production at the new plant as a result of the unfair labor charges. The parties settled a four year labor contract, and the union has withdrawn the charges. After all this time, it appears the parties recognized their mutual interests in protecting the business, which in turn protects jobs for workers.

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Ramsey County Judge Dale Lindman issued a temporary restraining order this week, halting Minnesota Governor Dayton’s attempt to organize licensed daycare workers via Executive Order. Judge Lindman stated after three hours of hearing, "If unionization of day care is to become the law of Minnesota, it must first be submitted to the lawmaking body of the state." His order remains in effect at least until another court hearing scheduled on Jan. 16, 2012.

What is so unique about the case is that Governor Dayton tried to use his Executive Order powers, to organize the daycare workers. This is contrary to the typical union election which begins with employee interest, followed by union campaigning, and then if there is sufficient support, the Union seeks an election. Minnesota employees have had the right to form and join unions, and enjoyed collective bargaining rights over terms and conditions of employment since the adoption of PELRA back in 1971. (Minn. Stat. 179A. et seq.) This is the first time in my 29 years practicing labor and employment law, where I have seen a sitting Governor call for a union election.

Governor Dayton’s unionizing efforts only applied to the 4,300 licensed family daycare providers who participate in a state subsidized child care program. Judge Lindman indicated an election that leaves out most of the state’s 11,000 licensed providers would be “very harmful,” although he indicated he was not ruling on the merits of the case.

Tim Pugmire, writing for MPR News reported, “Solicitor General Alan Gilbert, who represented Dayton in the hearing, argued that the Executive Order was not an attempt to make law. Gilbert said the Governor was simply trying to enable a dialog about whether child care providers should organize a union.” Tom Copeland, writing for SEIU, one of the unions behind the organizing push, suggests this is much more than an attempt to “enable a dialogue.” In an open letter Copeland used typical union rhetoric stating: 

These two unions are working cooperatively for the purpose of bringing new resources and benefits to the family child care field. Their goals include an increase in state subsidy rates, uniform interpretation of licensing rules, policies and procedures, access to affordable health insurance, and more. Successful organizing by these two unions in Delaware, Illinois, Iowa, Kansas, Maine, Maryland, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Washington, Wisconsin, and other states have generated tens of millions of dollars for increased subsidies for low income parents, lower parent co-payments, as well as increased access to training, and a strong voice for family child care at the state level.

There is already a legislative avenue in place if Minnesota employees want to organize and join a union. Licensed daycare providers should follow the same route other employees have taken since 1971. The Governor should not be the front man for AFSCME and SEIU, or their attempts to further their union organizing efforts.

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On Monday and Tuesday, Marylee and I had a field trip out of the office to attend the Association of Minnesota Counties 2011 Annual Conference and Vendor Fair. The Association of Minnesota Counties put on an excellent and well run conference. This is the fourth time we have attended this event. We again enjoyed having the opportunity to chat with all the County Commissioners, County Coordinators, and other County employees about what was new in their counties. This year, Marylee gave a presentation on “How to Lose a Discipline Grievance.” The attendees reported back to our booth they found the presentation both helpful and informative. If anyone who attended the conference did not get the opportunity to drop by our booth, give us a call or drop us an e-mail, we would love to chat with you. See you in 2012!

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