Religious Accommodations in Employment

135 S. Ct. 2028 (2015)

Samantha Elauf filed an EEOC charge of religious discrimination against Abercrombie and Fitch when it failed to hire her based on its belief that she might seek to wear her headscarf as a religious accommodation. At issue in the case was whether Title VII’s prohibition on declining to hire an applicant to avoid granting a religious accommodation request applies in cases where an employer has no actual knowledge that the applicant will make such a request if hired. Abercrombie and Fitch argued that it had no knowledge that Elauf would request any religious accommodation and could therefore not be held liable for failing to provide a religious accommodation it had no knowledge would be requested. The lower court agreed. The EEOC appealed. In a reversal of the lower court’s decision the Supreme Court ruled against Abercrombie. The Court based its conclusion on the fact that while Abercrombie had no actual knowledge that Elauf would make a religious accommodation request, during the hiring process Abercrombie did discuss the headscarf Elauf wore during her interview and its association with her religious beliefs as a practicing Muslim. In deciding not to hire Elauf the store further considered the scarf’s inconsistency with the Abercrombie & Fitch “Look Policy.” The Supreme Court found that Title VII’s prohibition against discrimination is aimed at an employer’s motives and not at its knowledge, remanding the decision back to the lower court for reconsideration under its ruling.

The Takeaway: An employer motivated not to hire an applicant based on a belief that the applicant would require a religious accommodation is liable for discrimination whether or not the applicant requested an accommodation or the employer otherwise had actual knowledge that a religious request would be forthcoming.

Sex Discrimination & EEOC Duties

135 S. Ct. 1645 (2015)

The Equal Employment Opportunity Commission (the “EEOC”), the agency charged with receiving and resolving charges of employer violations of federal anti-discrimination laws, must attempt to remedy unlawful workplace practices before it brings suit against an employer. In Mach Mining, the US Supreme Court reviewed whether and how much a court may assess the EEOC’s attempts to resolve charges of unlawful employment practices. The matter arrived at the Supreme Court by way of an EEOC sex discrimination charge filed by a female applicant who sought, but that Mach denied, employment as a miner. After investigating the charge, the EEOC found reasonable cause to believe that Mach had discriminated not only against the applicant but also against a class of women who applied for similar jobs. After reaching this conclusion the EEOC invited the applicant and Mach Mining to participate in informal dispute resolution and indicated that the agency would contact them to that end. A year letter, the EEOC sent a second letter indicating that legally required efforts at conciliation occurred and were unsuccessful and that any other efforts to resolve the matter “would be futile.” The EEOC then brought suit against Mach Mining. In its record of the case, the EEOC did not describe the conciliation efforts made. In its answer to the EEOC, Mach Mining asserted that the agency failed to conciliate in good faith and argued for a more intrusive review of the EEOC efforts. The Supreme Court disagreed, stating that while judicial review of the EEOC’s conciliation efforts is appropriate, the scope of the review is a narrow one and the EEOC’s sworn affidavit indicating that it had engaged in the legally required efforts without evidence of the contrary was sufficient to demonstrate that the agency had met its obligation.

The Takeaway: The EEOC need only make a sworn statement that it has engaged in efforts at conciliation before it sues an employer for unlawful employment practices.

Disabilities & Workplace Death Threats

Mayo v. PCC Structurals, Inc.

In Mayo v. PCC Structurals an employee, Timothy Mayo, diagnosed with a major depressive disorder, threatened to kill his supervisors and other employees. Mayo’s threats, which he made several times in alarming details, caused his co-workers to report the threats to management. After contact with law enforcement, to which Mayo communicated the threats again, Mayo entered and remained in the hospital for six days. Upon his release he took an employment leave under the Oregon and federal Family Medical Leave Acts. PCC terminated his leave prior to his return to work. Mayo sued PCC for discrimination, asserting that because his threats were a symptom of a covered disability, PCC was required to perform an individualized direct threat assessment of him prior to his termination. In dismissing his case, the lower court reasoned that Mayo failed to set forth a prima facie case, which includes indicating that he was a person with a disability covered under the act, that he was qualified to perform the essential functions of the job with or without a reasonable accommodation and that he suffered an adverse employment action.” An employee who cannot manage job stress without making death threats is not qualified for that employment. The appellate court agreed, indicating that regardless of why an employee makes death threats, “we have not located any cases, regulations, or guidance that disagree with this common sense principle,” that managing job stress without making death threats makes one unqualified to perform a job’s essential functions.

Pregnancy and Modified Work Duties

135 S. Ct. 1338 (2015)

UPS denied Plaintiff Peggy Young’s request for modified duty as a result of pregnancy-related lifting restrictions from her physician. Her usual job duties included lifting up to 70 pounds alone and up to 150 pounds with assistance. At the time of her request for modified duty, UPS accommodated work restrictions for only three categories of employees: 1) those who were injured on the job; 2) those whose injuries or medical conditions resulted in Department of Transportation restrictions on their work; or 3) those with injuries or medical conditions covered under the Americans with Disabilities Act. Under this policy, UPS denied Young’s request for accommodation. Young sued UPS for discrimination under the Pregnancy Discrimination Act (PDA). While Equal Employment Opportunity Commission guidance cleared up the PDA language in dispute in Young, it did so only after the United States Supreme Court accepted Young’s case.

At issue in Young was the language in the PDA, which required employers to treat pregnant women the same as “other persons not so affected but similar in their ability or inability to perform work.” Young contended that this language required UPS to give to pregnant women the right to the same level of accommodations UPS would give any other employees, even if those accommodations were reserved for only certain categories of workers—pregnant or not. The Court rejected this argument, indicating that the PDA did not require employers to provide pregnant women with “most favored nation status.” However the Court also ruled that a pregnant worker could prove discrimination under the PDA either by direct evidence of unfavorable treatment based on pregnancy or under the theory of disparate treatment—i.e., that she belongs to the protected category, “pregnant,” that she required accommodation in her work but was denied it, and that her employer accommodated other persons “similar in their ability or inability to perform work.” Under its analysis the Court reversed Young’s case, which had been dismissed at the lower level and instructed the court to allow her to proceed with her claim.

The Takeaway: A claimant can show pregnancy discrimination with direct evidence or by showing that an employer’s treatment of pregnant women is less favorable than its treatment of non-pregnant workers similarly positioned in their ability to perform or not perform work.

Harris v. City of Santa Monica

(No Escape Clause: Discrimination and the Mixed Motive Case)

What do you get when you cross a discriminatory reason for firing someone with a non-discriminatory reason for firing someone? You get a lawsuit. That’s what the City of Santa Monica got when they terminated a bus driver less than a week after she disclosed her pregnancy. Here’s what happened. Wynona Harris was a city bus driver in Santa Monica. She advanced satisfactorily past her probationary status despite having had an accident and once failing to provide the required one-hour notice of her inability to report to work. One month after learning she’d advanced past probationary status, Harris discovered she was pregnant. She informed her supervisor of her pregnancy. Six days later, the city of Santa Monica terminated her; citing “legitimate, non-discriminatory reasons for ending her at-will employment.” Harris sued, alleging discrimination based on her pregnancy. She sued and was awarded damages for non-economic loss, including mental suffering. Defendant, City of Santa Monica appealed. The appellate court reversed the jury’s finding and award. Harris appealed the decision to the California Supreme Court. She won, sort of.

This case turned on a jury instruction about mixed motive cases. While Harris claimed the City fired her because of her pregnancy, the city of Santa Monica claimed it terminated Harris because on her poor performance. During the trial, the City requested that the jury be instructed that if it found that the City terminated Harris based on pregnancy, if the City could prove that it would have made the same decisions based on job performance, then the jury would have to find for the City and the City would escape all liability. The trial court refused to provide this instruction. The appellate court found prejudicial error in the trial court’s failure to provide the jury instruction and in reversing the decision also found that there was substantial evidence to show that Harris was fired because of her pregnancy. Now what?

So, the Supreme Court was presented with a mixed motive case under the Fair Employment and Housing Act. I call them “would have done it anyway.” Essentially, the city said this, “Even if you can show that we fired you because you were pregnant, the fact is, we would have made the same decision even if you weren’t because you are a poor performer. That’s right. You’re a poor performer and you’re pregnant and that’ a problem for us.” Should it escape liability for the wrongful act of also being motivated by sex discrimination? No, said state the Supreme Court, absolutely not. A ruling like that would fly in the very face of the prohibitions in FEHA. The purpose of FEHA (just like Title VII after which FEHA is patterned) is to prevent, correct and remedy. So, this would mean a victory for Harris, right? Well, sort of.

While an employer cannot escape liability for unlawful acts of discrimination for which it also shows lawful motivations, it will not be subjected to a host of damages. In termination cases, like this one, Harris would not be reinstated, receive emotional distress damages or back-pay. Why? Because the City would have fired her even if she wasn’t pregnant. So while damages would not be an appropriate remedy for Harris in this case, the court indicated that attorney’s fees as well as declaratory judgment would suffice. Therefore, it’s a bit of a Pyrrhic victory for Harris but it is also a stain on the employer’s reputation.

So, the takeaway is this, adverse employment actions should be based on employment performance.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

(Many are Called but Minsters are Exceptional: The applicability of the ministerial exception to teachers)

Admit it, at least once you’ve fallen asleep while the minister was giving a sermon. Have you ever wondered what would happen if the minister fell asleep while you were listening to the sermon? Well, before Cheryl Perich could discover the answer, she was fired. I know, right? Here’s what happened.

Ms. Perich began her employment with Hosanna-Tabor Evangelical Lutheran Church and School as a lay-teacher. After she completed the required training, Ms. Perich became a “called teacher ” with responsibilities for teaching both secular and religious subjects, leading prayer and devotional exercises and taking her students to chapel services. Within five years of her employment, Ms. Perich was diagnosed with narcolepsy, a condition that results in an individual falling into the REM sleep stage uncontrollably and immediately. She took a medical leave at the start of the school term. When informing her employer of when she would be able to return to the classroom, she was told that her position had been filled for the remainder of the school year and was later offered what her employer called a “peaceful release.” The school would pay her insurance premiums in exchange for her resignation. Ignoring the offer, Ms. Perich reported for duty as she indicated she would. She was told to leave but refused and demanded written documentation that she had reported for duty. When documentation was not forthcoming, Ms. Perich announced that she intended to assert her legal rights. The school terminated Ms. Perich’s employment. Ms. Perich sued the school for violation of the Americans with Disabilities Act for terminating her based on her narcolepsy.

The school asserted the ministerial exception and argued that Perich could not bring an action in a case concerning the religious institution and its minister, the kind of dispute that the Court has long held it will not enter. At issue in this case was whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship. In a rare unanimous decision, the Court answered the question in the affirmative, providing what I believe is the takeaways in this case: the ministerial exception is not limited to the leaders of congregations and it is circumstances of an individual’s employment that control whether the exception will apply. However, the Court went on to say that it was “reluctant to adopt a rigid formula for deciding when an employee qualifies as a minister. Her title, her required education in both religion church doctrine, the endorsement of her local Synod district and her written responses to related questions were sufficient to meet the definition of minister according to the court.

The ministerial exception; it’s not just for the pulpit anymore.

Thompson vs. North American Stainless (Let's Call the Whole Thing Off!)

You and your fiancée work for the same company. Three weeks after one of you files a claim with the EEOC, the other gets fired. Eric Thompson, a Kentucky steelworker found himself in this very predicament when his fiancée filed a gender discrimination charge against their mutual employer. North American Stainless claimed that it terminated Thompson for poor performance. Thompson said it was because his fiancée charged the company with discrimination. Tomato/"Tomahto"; Performance/Retaliation? Seven years later we still don't know.

True Retaliation 
A viable charge under Title VII's prohibition against retaliation requires the claimant to prove that an adverse employment action was the result of engaging in protected activity. Protected activity in Thompson's case would have been opposing the gender discrimination allegedly perpetrated against his fiancée, by way of testifying, participating or assisting in the investigation of her gender discrimination claim. Thompson took none of those actions. So, the Sixth Circuit ruled in favor of his employer. The Supreme Court has accepted an appeal of the case for review. At issue? Whether Title VII's definition of retaliation protects from adverse employment action, a third party who did not oppose the illegal activity that the charging party complains of but is merely related to the charging party in some way? And if so, what degree of relation is protected: fiancée? Spouse? The barber who loses the hair cut fee the terminated employee can no longer afford? (A justice facetiously posed that last one during oral argument. I cannot make this stuff up, people.)

The Takeaway 
If we've said it once, we've said it a hundred times: Document the quality of an employee's performance. Doing so provides a tremendously helpful tool for the supervisor and the employee to measure the extent to which clearly identified and communicated job expectations are met. Last, it demonstrates the non-discriminatory or non-retaliatory reason for the sometimes legitimate and necessary adverse employment action. 
Meanwhile, for Mr. Thompson, the saga continues. The Supreme Court heard oral argument in his case in December. Stay tuned for that ruling and more next time in legal news.

Update - Third Party Retaliation Claims Allowed

You all remember Mr. Thompson who was terminated from North American Stainless after his wife-to-be filed a discrimination complaint against the company. The United States Supreme Court took up his case after he’d lost in both state and federal court. Both lower courts ruled that Thompson was not entitled to sue for retaliation because he had not engaged in any protected activity for which the company retaliated against him. The Supreme Court, despite the justices’ cheeky questions during oral argument, begged to differ. It seems it boiled down to two questions for them: 1) Would an employee be dissuaded from filing a discrimination claim if he or she knew that the company would terminate the co-worker to which he or she was engaged; and 2) If an employer terminates an employee as a means of punishing the employee’s complaining spouse-to-be; does the terminated employee have a retaliation claim? Last month the nation’s highest court answered yes to both questions.

Square Cut or Pear Shaped?
You probably remember from your in-depth study of Title VII, that any action that might dissuade a reasonable worker from making or supporting a discrimination charge can serve as the “adverse employment” action supporting a retaliation claim. In this case, the Court found it entirely reasonable that an employee engaged to marry another employee might very well choose not to complain if he or she knew that it would result in the person they were engaged to being fired. The Court stopped short at specifying what category of individuals would suffice (e.g., trusted friend, boyfriend, someone you meet for lunch occasionally). In any case, even North American Stainless agreed that Thompson met the standard on this question. However, the employer drew the line at conceding that Thompson was an “aggrieved person” within the meaning of the law. Not to worry, the Court had a Sharpie handy and drew the line for everyone to see and respect.

Good Grief
An “aggrieved person” within the meaning of the law is one with an injury connected to the cause of action with sufficient reasonableness so as not to be considered remote or collateral in nature. Prior to Thompson, retaliation claimants were those who had themselves charged or supported another individual’s charge of unlawful conduct against an employee. Thompson had done neither. He was merely engaged to the individual who had complained of discrimination. Nonetheless, North American Stainless fired him. And, the Court said, if the company fired him because it wanted to strike out against his wife-to-be for filing the original claim, then Thompson is “not an accidental victim of the retaliation” or marginally related “collateral damage.” Rather, “hurting him was the unlawful act by which the employer punished” the employee who is now Thompson’s wife. This fact brought him into the fold of “aggrieved persons” permitted to bring an action for retaliation in this case. With that ruling, the Court remanded the case back to the lower court. I’m guessing a belated wedding present from North American Stainless to Mr. and Mrs. Thompson might be forthcoming.

The Takeaway
This is a change in the history of retaliation claims and only demonstrates how much the law loathes the very thought of punishing individuals for asserting their rights under the law. It is safe to say that not all persons asserting a third party retaliation claim will prevail. However, it is the fool employer that tests the theory by taking unwarranted adverse employment actions against its employee. That was wrong before Thompson and it is wrong now, just for additional reasons.

Rangel v. American Medical Response West

(Once is Enough)

It’s true; when it comes to unlawful harassment, one incident is rarely enough to constitute a violation of the law. However, if the one incident is outrageous enough, it could be harassment under both California’s Fair Employment and Housing Act (FEHA) and Title VII of the 1964 Civil Rights Act (Title VII). “Well,, just how outrageous does one incident have to be to amount to unlawful harassment?” Have I got the cases for you! I caution you now that the facts involved not for the faint of heart. Here’s what happened.

Rangel v. American Medical Response West
Deanna Rangel worked as an ambulance driver for American Medical Response West (AMR). She and her supervisor, Jose Martinez, had a working relationship in which verbal banter seemed common. However, during one of those bantering sessions, things went a little too far. As she left work on August 10th, after tidying the kitchen at their station, Rangel jokingly stated to Martinez that he shouldn’t “dirty the kitchen” because she had just cleaned it. In response, Martinez told her that she only wore the pants at home and not at work. Martinez reminded Rangel of her disciplinary action from a few months prior and told her she “better watch out.” According to Rangel, Martinez then took out a knife and told her that he could cut her. Rangel told Martinez that he didn’t have the parts necessary for him to perform such an act. Martinez allegedly showed Rangel that he did, literally. Yes, he indecently exposed himself to her in the workplace. On August 28th, AMR terminated Rangel for her previous disciplinary action and the verbal exchange she had with Martinez. Rangel sued AMR for harassment, sex discrimination harassment and retaliation. She sued Martinez personally. Martinez moved to dismiss the claim against him. While he did not admit that he exposed himself to Rangel, he argued that one incident alone was not sufficiently egregious to constitute harassment. He further argued that even if he did expose himself, the act was not motivated by sexual desire. Pop quiz: Did the Court deny Martinez’s motion to dismiss? If you said yes, you are correct.

The court ruled that an act of indecent exposure is objectively egregious and outrageous behavior. It further found the facts revealed that Rangel felt “degraded,” “assaulted,” “paralyzed” and “extremely stressed” as a result of the behavior and “subjectively perceived Martinez’s actions hostile and abusive.” Further, Martinez cited no authority for the proposition that actionable sexual harassment must be motivated by sexual desire. He didn’t cite it because there is no legal authority standing for that proposition. As a result, Rangel can move forward with her claim.

Ayissi-Etoh v. Fannie Mae et al 

(Once is Enough)

It’s true; when it comes to unlawful harassment, one incident is rarely enough to constitute a violation of the law. However, if the one incident is outrageous enough, it could be harassment under both California’s Fair Employment and Housing Act (FEHA) and Title VII of the 1964 Civil Rights Act (Title VII). “Well,, just how outrageous does one incident have to be to amount to unlawful harassment?” Have I got the cases for you! I caution you now that the facts involved not for the faint of heart. Here’s what happened.

Ayissi-Etoh v. Fannie Mae et al
Magloire Ayissi-Etoh was hired in Fannie Mae’s audit department in 2008. After three months he applied for and received a promotion to team leader. The promotion typically came with a significant increase in salary. Ayissi-Etoh was one of twelve employees promoted but the only one who did not receive an increase in salary. When he approached his supervisor to ask why he had not received the raise she allegedly stated, “For a young black man smart like you, we are happy to have your expertise; I think I’m already paying you a lot money.” The following year, Thomas Cooper became the VP for Ayissi-Etoh’s area. Ayissi-Etoh met with Cooper to discuss his concerns about continuing to receive staff level assignments even though he was a team leader. The meeting quickly became heated until at the end of the meeting, Cooper allegedly called Ayissi-Etoh the “n-word” and told him to get of his office. Fannie Mae hired an outside investigator but required Ayissi-Etoh to continue working for Cooper during the three-month investigation. Although Cooper denied it, the investigator found that he likely did use alleged made the statement Ayissi-Etoh alleged. Fannie Mae terminated Cooper. As you’ve no doubt guessed by now, Ayissi-Etoh sued Fannie Mae for discrimination, retaliation and harassment.

Ayissi-Etoh based his harassment complaint, on Cooper’s the use of the “n-word.” The trial court granted Fannie Mae’s motion to dismiss the claim, citing that the single use of the word could never amount to unlawful harassment. The appellate court disagreed, stating that “perhaps no single act can more quickly alter the conditions of employment than the use of an unambiguously racial epithet such as the “n-word.” Although the Ayissi-Etoh’s harassment claim asserted even more facts to support his harassment claim, the court clearly sated that the “single incident might well have been sufficient to establish a hostile working environment.” (Then, to underscore the point in a concurring opinion, Judge Kavanaugh quoted Langston Hughes’ The Big Sea. Love. That.)

What shall we take away from these two cases? Let’s first state the obvious lessons: 1) indecent exposure in the workplace is not an option, ever, for any reason; and 2) when in a disagreement with a co-worker it is always best to calmly stick to the substance of the disagreement and refrain from the use of ad hominem retorts of any kind, let alone those that are racial in nature.

Now, let’s refresh our recollections on a few less than obvious items you likely know but don’t always have at the forefront of your mind: 1) Supervisors can be sued personally for their own harassing conduct in the workplace. 2) One egregious incident is rarely enough to amount to harassment but nowhere in the law does it state that one egregious incident is never enough; these two cases illustrate that sometimes, once is all you need. 3) Finally, remember that prohibited conduct need not be motivated by hate for a class of people, (or lust for them for that matter), it need merely be motivated the class itself.

Vance v. Ball State University et al.

(She’s Not The Boss of You!)

“Who’s your supervisor?” Easy question, right? I thought so too, until the Supreme Court spent thirty pages disabusing me of the notion that anything can be easy during litigation. Turns out, not all meanings of the word “supervisor” are created equal, at least not when it comes to Title VII. A Ball State University employee learned this truth the hard way. Here’s what happened.

Plaintiff, Maetta Vance worked in Ball State University’s (BSU) dining services. Over a course of sixteen years of employment Vance lodged several complaints of racial discrimination and retaliation, several of which she claimed to have suffered at the hands of fellow employee Saundra Davis.

In 2001 Vance and Davis engaged in an altercation in the work place that culminated in Davis allegedly slapping Vance on the head. Vance elected not to pursue a complaint and shortly thereafter transferred to another department. Four years later Vance returned to Davis’ department and the altercations continued. Vance claimed that Davis impeded her exit from an elevator and referring to the slapping incident, stated, “I’ll do it again.” In separate incidents, Vance stated that she overheard Davis speaking to another employee about her, using several racial epithets when she did so. Vance filed complaints following each of the incidents. BSU investigated, attempted to separate the employees and engaged both Ball and Davis in counseling in an attempt to improve the working relationship. Finally, they issued a warning to Davis. Vance filed action for harassment and retaliation against BSU. The lower court ruled in favor of BSU finding that strict liability did not flow from the circumstances, as Davis and Vance were co-workers rather than subordinate and superior. Relying on settled case law and the EEOC’s definition of supervisor, the court found that Davis had “no power to hire, fire, demote, promote, transfer or discipline” Vance. Further, because BSU had investigated the incidents and responded to the alleged harassment, it was not liable. Vance appealed.

In a 5-4 ruling the Supreme Court affirmed the lower court’s decision. The Court went further to clarify the rule for finding vicarious employer liability under Title VII when an employee engages in harassment against an employee. Recall that when a supervisor engages in harassment against an employee that results in tangible employment action, the employer is without defense under Title VII. The rule begs the very question that was at the heart of this case, “What is a supervisor?” While Vance argued for a more expansive definition of the word, which would include the authority to direct daily activities, which she claimed Davis could do in her case, BSU argued that ability to direct does not a supervisor make and even if it did, Davis did not have that authority. The Supreme Court agreed. Quoting earlier case law, the Court stated that the power to take tangible employment action is, “ within the special province of the supervisor,” and “the means by which the supervisor brings the official power of the enterprise to bear on subordinates.”

The takeaway: If you can’t take the heat, stay out of the kitchen. (Come now, it happened in the dining services area; you knew that was coming.) Seriously, the takeaway is that in many cases when an employer appropriately responds to workplace harassment it can successfully defend against liability. In this case and in all cases like it, appropriate employer action includes: having appropriate anti-harassment policies in places that encourage rather than deter employees from bringing grievances to the employer, and taking measures to end prohibitive behavior and preventing it from occurring again.

Questions? Comments? Complaints (really)? Email or call:; ext. 6832.

Brinker Restaurant Corporation v. The Superior Court of San Diego

(Do Fries Come with that Break?)

You want your baby-back ribs? Well, the waiters at Chili’s wanted their breaks but claimed that the management failed to provide them and instead, falsified time cards to make it appear as though time spent working was time on a mandatory break. Staff also alleged that Chili’s failed to provide the required premium pay for work performed in the absence of the mandatory break periods. So, the waiters, the bakers, and the shoestring fries makers all got together and brought a class action suit against Brinker Restaurant Corporation, (owner of Chili’s restaurants). Here’s what happened.

Under California law, employers must provide meal and rest breaks at a certain time and for a certain period within a non-exempt, hourly employee’s workday when that workday exceeds a certain number of hours. I won’t bore you with the hundreds of words used to describe the right formula to calculate required break periods. I’ve only hoped that no squids were harmed in offering up of the ink used to print the Court’s decision. In a nutshell, at issue in the case was the appropriate calculation for arriving at the right number, length and timing of all rest and meal periods owed to an employee. The meatiest aspect of the case—the answer that nerdy lawyers such as I have really been waiting for was the answer to this question: What is the nature of the duty an employer has to provide the breaks at all? While Chili’s asserted that the law required only that it make breaks available; Chili’s employees argued that employers must ensure that employees do not work during meal break periods. In response to the employee’s argument the Court stated simply, “We are not persuaded.”

The Court indicated that an employer cannot be required to “police” meal periods and “satisfies its obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” If an employee voluntarily chooses to work during that period, an employer cannot be held liable for providing premium pay for work for it did not require or request. In fact, said the Court, was an employer to mandate employees to do anything during their breaks, including requiring that they do no work; the employer would be exercising the control it is supposed to relinquish during the break period. I had not thought about it in that way but doesn’t that just make sense?

The Takeaway: If you’re an hourly member of the staff, know what breaks are due to you and take them and do with them whatever you wish during that time. If you have questions, your friendly HR office or your supervisor can help you. If you are a supervisor of hourly staff be sure to make the required breaks available for your employees and require nothing of them during that time.

Augustus v. ABM Security Services, Inc.

(The Opposite of Work is Rest)

The court asked two questions in Augustus:  1) whether the law requires employers to permit employees to take off-duty rest periods; and 2) whether employers may require their employees to remain “on call” during rest periods. The Court answered yes and no respectively to those questions.  Here’s what happened.

The law provides that “every employer shall authorize and permit all employees to take rest periods” and, “authorized rest periods shall be counted as hours worked for which there shall be no deduction from wages.”

ABM employs security officers and deploys them to a variety of settings throughout the state of California.  Arguing in her own behalf and in that of a class of similarly affected employees, officer Jennifer Augustus asserted that while ABM authorized rest periods, it required officers to remain “on-call” during that time.  During the rest periods, ABM required the officers to keep their two-way radios and pagers on, so that they could respond to circumstances requiring their assistance, even if those circumstances arose during their rest period.  This, asserted Augustus, is not rest.  The lower court agreed with her, the appeal court reversed that decision and finally, the state Supreme Court put an end to the argument.

The appellate court argued that unlike the section of the Industrial Welfare Commission’s wage order that authorizes meal periods, the section authorizing rest periods does not include language that employees must be “relieved of all duty” during that time.  Therefore, reasoned the court, there is no requirement that an employee be provided an “off-duty” period of rest.  The Supreme Court disagreed. The Court depended in part on language of the order that prohibits an employer from deducting from employee wages for rest period time.  If the commission had intended to permit employers to obligate employees to work during their rest period, there would be no need to indicate a prohibition on wage deduction for that time. The employee would be working and wages would be owed.

Finally, the court turned its attention to whether employers could require employees to remain “on-call” during rest periods.  ABM argued that employees regularly took uninterrupted rest periods and only had to respond to on-call circumstances the need arose.  Depending on its opinion in a previous case, the court opined that an employer must relinquish all control over employee activity during rest periods. Requiring employees to remain vigilant, to keep radios and pagers on and to respond to calls for assistance is to subject them to employer control.  Therefore, an employer may not require an employee to remain on call during a period of rest.

Questions? Comments? Complaints (really)? Email or call:; ext. 6832.

Hispanics United of Buffalo, 359 N.L.R.B. No. 37 (2012)

(You Can Say that on Facebook)

How does one Facebook posting result in five terminations? Easier than you’d think it would. At least that was the case at Hispanics United of Buffalo (HUB) where a supervisor fired five employees for their Facebook conversation about the workplace and specifically about one of their co-workers. Here’s what happened.

Marianna Cole-Rivera was employed at HUB, a social service organization serving low to moderate-income individuals in Western New York. During a conversation with a co-worker, Lydia Cruz-Moore, Cruz-Moore allegedly indicated that employees in the organization’s housing department, (where Cole-Rivera worked), were not doing enough for the clients they served. Upset by the comment, Cole-Rivera did what any red-blooded American would do; she took her disagreement with Cole-Rivera to Facebook. Here’s what she said:

“Lydia Cruz, a coworker feels that we don’t help our clients enough at Hispanics United of Buffalo. I about had it! My fellow coworkers how do u feel?”

Four of Cole-Rivera’s coworkers responded to the post. So did Lydia Cruz. Whoops! Apparently, she was a friend of a friend of one of the employees. Therefore, the post appeared on her wall (timeline). Here’s what she said in response to the post about her, “Stop with ur lies about me.” Cruz then complained to her supervisor stating that she had been slandered and defamed by the comments. Citing that the posted comments were a violation of the organization’s zero-tolerance bullying and harassment policy, HUB terminated Cole-Rivera and her four co-workers whose postings generally objected to the notion that they were not performing sufficient services for their clients.

The five terminated employees argued that the Facebook post was not harassment but rather an exercise of their rights under the National Labor Relations Act (the Act). Specifically, the terminated employees argued that their Facebook conversation was a concerted activity for mutual aid and protection in the workplace. Under the Act, an employer may not penalize employees for engaging in such activity, regardless of whether the workplace is unionized. So, the question was this, did the Facebook conversation amount to an activity for the purposes of mutual aid and protection? The National Labor Relations Board (NLRB) responded in the affirmative.

In a previous decision, the NLRB defined concerted activity for the purposes of mutual aid and protection as, “circumstances where individual employees purposes to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” The NLRB indicated that Cole-Rivera’s comment amounted to alerting her co-workers to what she perceived as an unfair critique of their work. Further, she solicited her co-workers views about the criticism. Her co-workers responded in kind. According to the NLRB, these acts were the first step toward taking group action to defending themselves against the accusation and as such constituted “concerted activity” for the purposes of the Act. HUB knew of the nature of the activity and penalized the employees for it, and therefore violated the Act. The NLRB ordered HUB to reinstate the employees and make them whole for all loss of earnings and other benefits. Further, HUB was ordered to cease and desist any and all policies prohibiting concerted activity among employees no matter where it occurred, even if it happened on Facebook.

The takeaways: Keep your office business off of Facebook? No, that’s not it. (Really, though, sometimes, T.M.I., people.). Seriously, recognize that “concerted activity” need not involve picket signs and sit-ins. Employees can merely come together to discuss their concerns regarding workplace conditions. They cannot be penalized for doing so, regardless of where the discussion occurs--by the water-cooler or over their laptops. Notwithstanding that reality, nothing in the law prohibits an employer for having lawful employer policies that may be implicated when “concerted activity” takes place.

Columbia University v. NLRB

(Work is Work)

Finding nothing so unique about employment engaged in for academic purposes that it was beyond the reach of the National Labor Relations Act (the Act), the National Labor Relations Board ruled that graduate student assistants at private institutions engaged in services for compensation are statutory employees within the meaning of the Act. The Board indicated that "coverage is permitted by virtue of an employment relationship; it is not foreclosed by the existence of some other, additional relationship that the [National Labor Relations] Act does not reach."  The ruling runs counter to a 2004 decision in which the Board ruled that graduate student assistant workers at private colleges and universities could not unionize because their relationship with the educational employer is primarily an academic endeavor.

Critics of Columbia continue to balk at the Board's jurisdiction in such cases, as they did in response to collegiate athletics efforts at unionization. Chief among the concerns is the change in the "symbiotic relationship" between student and educational institution. Critics offer that employment in these cases is "embedded in the fabric of the educational experience," and that that experience is one that should be unfettered by the kind of leveraging involved in collective bargaining. Doubly, the critics would indicate that the decision belies the Board's 2015 decision not to exercise jurisdiction over collegiate athletics in the Northwestern University decision involving football. Nonetheless, the Board concluded that excluding the graduate assistant from coverage in this case "deprived an entire category of workers from the protection of the Act without justification." It's worth noting that in a footnote in Brown, the Board indicated that to exclude student athletics in that case did not preclude it from finding student workers such as teaching assistants as covered employees in other cases, as it did in Columbia.

Questions? Comments? Complaints (really)? Email or call:; ext. 6832.

Unionization at Church Operated Colleges & Universities

925, 361 N.L.R.B. NO. 157 (N.L.R.B. DEC. 16, 2014)

In a reexamination of the longstanding analytical framework used to determine the appropriateness of its jurisdiction over employees at religious educational institutions, the National Labor Relations Board (the “NLRB”) developed new principles for reaching a conclusion on the question of its authority in that context. Guided by a United States Supreme Court decision, prior to Pacific Lutheran, the NLRB declined to exercise jurisdiction over employees at educational institutions operated by a church, even where the church engaged in secular as well as religious education of its students. In Pacific Lutheran, a local arm of the Service Employees International Union (the “SEIU”) petitioned the NLRB, seeking to represent all 176 of its adjunct faculty members. Pacific Lutheran challenged the petition, in part, based on its church operation. However, the NLRB determined that church operation alone was insufficient to escape its jurisdiction. Rather, said the NLRB, an educational institution must: 1) hold itself out as providing a religious environment and; 2) hold out its faculty as performing specific tasks in maintaining the religious environment. Notwithstanding this new principle clearly in SEIU’s favor, SEIU withdrew its petition to unionize Pacific Lutheran faculty, leaving all employers with the new standard of review.

The Takeaway
Church operated educational institutions and its faculty members are not automatically exempt from NLRB jurisdiction. An educational institution must demonstrate a religious environment and faculty must have specific roles in maintaining that environment.

Agencies charged with receiving charges of violations of laws like Title VII and Title IX had their own bones to pick this past year.

Questions? Comments? Complaints (really)? Email or call:; ext. 6832.