My law partner Tiffany Schmidt welcomed baby Josée Marie Schmidt last week. Josee joined her sisters Cambria and Brynn early January 25, 2012 at 3:23 am. She weighed in at 7lbs. 5 oz.. Mother and baby Josée are both doing well.
Photo by: Gregoria Borgia
If you haven’t heard about the Friday crash of cruise liner Costa Concordia off the coast of Italy, you must be disconnected from all technology, newspapers, and media, because it has been the #1 news story. The employment side to this tragedy at sea, is the alleged horse-play that went on in the ship’s bridge and the fact the Captain may have abandoned ship. Today, MSNBC.com reported this is not the first time the ship’s captain, Francesco Schettino has disobeyed orders. According to Italian news reports, Captain Schettino once left Marseilles, France in bad weather, against both company policy and Coast Guard orders. He was also once reportedly caught sailing too close to the shore in another part of Italy.
In addition to the human tragedy and loss of life, this event is going to be costly for Carnival Cruise Lines, the owner of the Costa Concordia. Especially, if it is shown that Captain Schettino had previous performance issues which were not addressed by Carnival. According to news reports, human error is primarily to blame for the cruise liner crash, and that responsibility ultimately rests with the captain. Captian Schettino deviated from the correct route for the ship and contravened safety procedures.
I don’t know if Carnival took disciplinary action against Captain Schettino for past violations of company policy, but if they didn’t, they certainly should have. Discipline for violation of company policies is meant to correct employee behavior. Company policies are important for a number of reasons including but not limited to notifying employees of expected behavior, and outlining safety procedures.
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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.
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.
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