In an issue of first impression, the Michigan Court of Appeals held the "ministerial exception" may be applied to WPA claims involving a religious institution and a "ministerial employee," and the trial court properly granted summary disposition as to plaintiff's WPA claim in favor of the defendants.
Also, based on the record, the court held the trial court did not err in determining consideration of the relevant factors established plaintiff was a ministerial employee and defendants were entitled to summary disposition of her CRA claim.
Plaintiff, a teacher, alleged violations of the CRA and the WPA after her contract was not renewed for the 2005-2006 school year. Regarding the first factor used in determining if a plaintiff was a ministerial employee, the court found no error in the trial court's conclusion plaintiff's duties were primarily religious, despite the fact she taught four mathematics and two religion classes in her last year of teaching. She stated she incorporated her religious teachings into her mathematics lessons. As to the second factor, plaintiff's teaching of religion classes and her involvement in planning masses and preparing students for confirmation and reconciliation services clearly had religious significance. Concerning the third factor, the trial court found plaintiff's position was primarily religious because, as a teacher of religion, she was involved in proselytizing on behalf of the Church. The court agreed. As the trial court noted, educating and indoctrinating the children was important to and furthered the purposes of the Church. The court held the fourth factor presented a closer question, given plaintiff did not assume a liturgical role within the entire congregation. However, she was intimately involved in liturgical planning of worship services, as well as confirmation and reconciliation services, for students. Further, her role as a religion teacher involved propagation of defendants' doctrine to students, which included guidance in worship services and rituals. The court noted some claims by ministerial employees are not necessarily foreclosed by the ministerial exception, but none of those exceptions applied because plaintiff's WPA claim alleged retaliation by termination.
The case represents a further setback for employees and demonstrates that the judiciary charged with interpreting the law is just as important as the legislature in shaping employee rights and expectations, as well as the hurdles for employees in pursuing those expectations when they are created.
Weishuhn v. Catholic Diocese of Lansing. (Michigan Court of Appeals) No. 07-72277 (Shapiro, J., joined by Meter and Borrello, JJ.)
Thursday, January 28, 2010
State of the Union: Employment Law
Like most employment law observers, I thought that the election of Obama was likely to usher in a period of new employment legislation. I underestimated how much was on Congress's, and the President's, plate. So far, the only law to be enacted occurred early in the Obama administration: Lilly Ledbetter Fair Pay Act.
In light of the State of the Union speech, it seems unlikely that any employment legislation will be enacted in 2010, and was clearly not a priority. The president mentioned only three employment law issues: (1) greater enforcement of civil rights laws against employers that discriminate; (2) greater enforcement of the Equal Pay Act to ensure equal pay for women; and (3) immigration reform. The first two involve enforcement of laws that already exist. The third involves a possible law that has little chance of passing.
Certainly, health care is the most important benefits-related legislation.
There are plenty of pending real employment legislation proposals that could be passed. The President admonished Democrats to govern and not run for the hills; he admonished the Republicans to govern and not merely block legislation. Mid-term elections occur this year so the passage of any controversial laws like EFCA is highly unlikely, especially when all the political chips are in on health care.
btw, did anybody see Justice Alito furiously shaking his head and mouthing 'not true' as Obama took a swipe at the Supremes for overturning campaign finance law last week?
In light of the State of the Union speech, it seems unlikely that any employment legislation will be enacted in 2010, and was clearly not a priority. The president mentioned only three employment law issues: (1) greater enforcement of civil rights laws against employers that discriminate; (2) greater enforcement of the Equal Pay Act to ensure equal pay for women; and (3) immigration reform. The first two involve enforcement of laws that already exist. The third involves a possible law that has little chance of passing.
Certainly, health care is the most important benefits-related legislation.
There are plenty of pending real employment legislation proposals that could be passed. The President admonished Democrats to govern and not run for the hills; he admonished the Republicans to govern and not merely block legislation. Mid-term elections occur this year so the passage of any controversial laws like EFCA is highly unlikely, especially when all the political chips are in on health care.
btw, did anybody see Justice Alito furiously shaking his head and mouthing 'not true' as Obama took a swipe at the Supremes for overturning campaign finance law last week?
Wednesday, January 27, 2010
Mission: Improbable
Heard on the TMZ grapevine: Brittany Murphy's husband, Simon Monjack, says Warner Brothers is responsible for the death of his wife and he plans to file a wrongful death lawsuit against the company.
Apparently Monjack told The Daily Beast Murphy was devastated after reportedly losing a role in the sequel to "Happy Feet." Monjack believes losing the movie caused Murphy to have a heart attack.
The L.A. County Coroner has not released the cause of death.
I am not a tort attorney, but wrongful death seems a bit farfetched. Wrongful termination? Maybe that wouldn't net as much $$$ as a lead theory. I don't think I'll be following this case, but it sounds like a cautionary tale for employers of elite employees who have the wherewithall to muster even what looks like a speculative suit. I'm guessing that severance agreements aren't SOP in these types of situations, whatever 'this type of situation' could be.
Apparently Monjack told The Daily Beast Murphy was devastated after reportedly losing a role in the sequel to "Happy Feet." Monjack believes losing the movie caused Murphy to have a heart attack.
The L.A. County Coroner has not released the cause of death.
I am not a tort attorney, but wrongful death seems a bit farfetched. Wrongful termination? Maybe that wouldn't net as much $$$ as a lead theory. I don't think I'll be following this case, but it sounds like a cautionary tale for employers of elite employees who have the wherewithall to muster even what looks like a speculative suit. I'm guessing that severance agreements aren't SOP in these types of situations, whatever 'this type of situation' could be.
Quiz: Are Salaried Employees Entitled to Overtime?
Yes, salaried employees are often entitled to overtime! People frequently assume that overtime pay is only for hourly employees, but this is wrong. Being paid a salary is not a factor – what matters most is the kind of work you do.
A salaried employee, like an hourly employee, must be paid overtime unless he or she meets the test for exempt status as defined by federal laws. So – the easy answer to this common question is that being paid a salary is not a factor. Do not assume that you are not entitled to overtime pay just because you are paid a salary--you may be entitled to overtime pay.
A salaried employee, like an hourly employee, must be paid overtime unless he or she meets the test for exempt status as defined by federal laws. So – the easy answer to this common question is that being paid a salary is not a factor. Do not assume that you are not entitled to overtime pay just because you are paid a salary--you may be entitled to overtime pay.
Tuesday, January 26, 2010
ADAAA and the 'Interactive Process': What Employers should be doing now
With the enactment of the ADA Amendments Act of 2008 (ADAAA) and the new expansive interpretation of “disability,” employers will more frequently face the issue of whether an applicant or employee can be “accommodated.”
The determination of whether and how to accommodate an employee involves engaging in an “interactive process” with the employee. The interactive process is a dialogue
between the employer and employee designed to identify the precise limitations resulting from the disability and the potential reasonable accommodations that would enable the employee to perform the essential functions of his or her job.
The law is clear that employers have an affirmative duty to engage in this dialogue to explore whether there are actions the employer can take so the employee can continue to work. What is less than clear, however, is when this duty arises.
Obviously, the duty to engage in the interactive process is triggered when an employee requests an accommodation; however, the duty can be triggered in several less obvious ways. For example, employers are advised to initiate the interactive process when any of the following occurs: an employee presents with work restrictions or is limited to “light duty” work; an employee (or his or her representative) informs you that he or she is suffering from an impairment or
disability; or an employee appears to have difficulty performing his or her job.
Once an employer has knowledge of any of the above, it should promptly meet with the employee to determine whether the employee can be reasonably accommodated. Employers can demonstrate good faith in attempting to provide a reasonable accommodation by doing the following:
• Analyzing the job at issue and identifying its essential functions and purpose;
• Meeting with the employee who requests an accommodation and asking the employee what might help him or her;
• Showing some sign of having considered the employee’s request; and
• Offering and discussing available alternatives if the employee’s request is too burdensome.
Every step of this interactive process should be well documented so the employer can, if necessary, defend itself against charges of discrimination. Employees are not necessarily entitled to the accommodation of their choice, but employers should explore all available alternatives that would enable the employee to continue working without imposing an undue hardship on the employer’s operations.
Employers must be mindful that disability and reasonable accommodation issues must be analyzed on a case by case basis – there is no “one size fits all” analysis--a policy, which, unfortunately, is conducive to both litigation and relatively intense effort to prevent litigation.
Now is a perfect time to review job descriptions and consider the process to be used
when an individual requests an accommodation or submits work restrictions. Given the recent changes in the law, employers should consider reviewing past denied requests if the employee is still failing on the job. Managers and supervisors should also be instructed to consult with Human Resources when an employee seeks an accommodation and to refrain from taking immediate action to either refuse or grant
the request.
The determination of whether and how to accommodate an employee involves engaging in an “interactive process” with the employee. The interactive process is a dialogue
between the employer and employee designed to identify the precise limitations resulting from the disability and the potential reasonable accommodations that would enable the employee to perform the essential functions of his or her job.
The law is clear that employers have an affirmative duty to engage in this dialogue to explore whether there are actions the employer can take so the employee can continue to work. What is less than clear, however, is when this duty arises.
Obviously, the duty to engage in the interactive process is triggered when an employee requests an accommodation; however, the duty can be triggered in several less obvious ways. For example, employers are advised to initiate the interactive process when any of the following occurs: an employee presents with work restrictions or is limited to “light duty” work; an employee (or his or her representative) informs you that he or she is suffering from an impairment or
disability; or an employee appears to have difficulty performing his or her job.
Once an employer has knowledge of any of the above, it should promptly meet with the employee to determine whether the employee can be reasonably accommodated. Employers can demonstrate good faith in attempting to provide a reasonable accommodation by doing the following:
• Analyzing the job at issue and identifying its essential functions and purpose;
• Meeting with the employee who requests an accommodation and asking the employee what might help him or her;
• Showing some sign of having considered the employee’s request; and
• Offering and discussing available alternatives if the employee’s request is too burdensome.
Every step of this interactive process should be well documented so the employer can, if necessary, defend itself against charges of discrimination. Employees are not necessarily entitled to the accommodation of their choice, but employers should explore all available alternatives that would enable the employee to continue working without imposing an undue hardship on the employer’s operations.
Employers must be mindful that disability and reasonable accommodation issues must be analyzed on a case by case basis – there is no “one size fits all” analysis--a policy, which, unfortunately, is conducive to both litigation and relatively intense effort to prevent litigation.
Now is a perfect time to review job descriptions and consider the process to be used
when an individual requests an accommodation or submits work restrictions. Given the recent changes in the law, employers should consider reviewing past denied requests if the employee is still failing on the job. Managers and supervisors should also be instructed to consult with Human Resources when an employee seeks an accommodation and to refrain from taking immediate action to either refuse or grant
the request.
Monday, January 25, 2010
caring about your standard of care, again
Last Wednesday, petitioners (Xerox’s ERISA plan administrators) contended that the Second Circuit “got it backwards” when it afforded deference to the district court’s – but not the Plan Administrator’s – interpretation of the company’s ERISA plan.
This case continues a recent trend of the Court taking on ERISA cases that pose very finite issues, ones that aren’t likely to recur frequently but that pose the opportunity to present some sense of what are the outer guidelines of ERISA litigation - how broad is deference, does it apply when there is a conflict, what kind of conflict matters, how much room does the administrator get to work with plan language, and what is the proper balance between the plan administrator and the district courts (and eventually the circuit courts) in deciding factual and plan language issues in ERISA cases. Much of this goes back to Firestone, and the universe governing ERISA cases that it spawned; what we are likely to see are cases like this one being decided in a manner intended to reign in the outer limits of the universe spawned by Firestone, which means I call this one for the participants, with a finding that the plan administrator gets deference only the first time around.
Many of the justices seemed to follow what the Chief Justice characterized as “one strike and you’re out” approach, which seemed to be the trend of the Seventh Circuit in Gross as well.
The upshot is, again, like Gross, the 'due deference' that a court is likely to give a plan administrator is not going to be much. Plan administrators are going to need solid cases in making their determinations and not rely on 'arbitrary and capricious standards' to do the work for them.
Conkright v. Frommert (08-810);
This case continues a recent trend of the Court taking on ERISA cases that pose very finite issues, ones that aren’t likely to recur frequently but that pose the opportunity to present some sense of what are the outer guidelines of ERISA litigation - how broad is deference, does it apply when there is a conflict, what kind of conflict matters, how much room does the administrator get to work with plan language, and what is the proper balance between the plan administrator and the district courts (and eventually the circuit courts) in deciding factual and plan language issues in ERISA cases. Much of this goes back to Firestone, and the universe governing ERISA cases that it spawned; what we are likely to see are cases like this one being decided in a manner intended to reign in the outer limits of the universe spawned by Firestone, which means I call this one for the participants, with a finding that the plan administrator gets deference only the first time around.
Many of the justices seemed to follow what the Chief Justice characterized as “one strike and you’re out” approach, which seemed to be the trend of the Seventh Circuit in Gross as well.
The upshot is, again, like Gross, the 'due deference' that a court is likely to give a plan administrator is not going to be much. Plan administrators are going to need solid cases in making their determinations and not rely on 'arbitrary and capricious standards' to do the work for them.
Conkright v. Frommert (08-810);
Saturday, January 23, 2010
BLS report: a sign of the times
The Bureau of Labor Statistics issued a press release Friday indicating union membership declines during 2009.
In 2009 union membership dropped from 12.4% to 12.3%, down by 771,000 to 15.3 million.
Private sector: Down from 7.6% to 7.2%.
Public sector: Up from 36.8 to 37.4.
The upshot: for the first time ever, more public sector employees (7.9 million) belonged to a union than did private sector employees (7.4 million), although there are 5 times more wage and salary workers in the private sector.
In 2009 union membership dropped from 12.4% to 12.3%, down by 771,000 to 15.3 million.
Private sector: Down from 7.6% to 7.2%.
Public sector: Up from 36.8 to 37.4.
The upshot: for the first time ever, more public sector employees (7.9 million) belonged to a union than did private sector employees (7.4 million), although there are 5 times more wage and salary workers in the private sector.
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