nevermindThe Supreme Court today issued a decision in one of the most anticipated cases of the session on whether public employees could be forced to pay fees to a union that they didn’t want to belong to.

And in doing so, the court showed what happens in 4-4 splits: Nothing.

Well, that’s not entirely accurate: The court did issue a one sentence “per curiam” ruling in Freidrichs v. California Teachers Association: “The judgment is affirmed by an equally divided Court.”

And because the lower court ruling affirmed the use of these fees, public unions live to see another day.

That’s it? Yep.  We’ll have to wait until the court is back to a full contingent and hears a similar case.

It reminds me of that old routine by the glorious Gilda Radner: Never Mind!

 

scaliaAbout a decade ago, I had the good fortune to sit at a table with Justice Antonin Scalia over a long lunch. He was a distinguished speaker for the Young Lawyers’ Section of the Connecticut Bar Association and, as a former Chair of the that group, I lucked out in my seating arrangements.

I remember my parents were a bit puzzled at my excitement over the prospect of lunch with Justice Scalia.  But I explained to them, that my excitement wasn’t because I agreed with all of his decisions or logic.  I was looking forward to it because whenever there was a new case released, I would typically read his decisions (and often dissents) first.

Because to read his decisions was to appreciate a craft of writing that I could never even hope to replicate.  Even on the many decisions of his that I disagreed with, I wanted to read his dissents to see what the weaknesses were in the majority’s arguments.

Justice Scalia’s legacy when it comes to employment law cases is far more confusing and complicated than you might think.

Take the Abercrombie/head scarf case from last year. Would it surprise you to learn that Justice Scalia penned the majority opinion that found in favor of an employment law plaintiff?

Indeed, he described the case as a “really easy” one. In doing so, he said that the applicant to a job, who was wearing a headscarf, only has to show that her need for the company to accommodate her religious beliefs was a “motivating factor” in its decision not to hire her.

Yet in the Young v. UPS case, he dissented from another decision that was in favor of the employee. In doing so, he was unrelenting in his criticism.  “Inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.”

Ouch.

Then look at another seeming “pro-employer” case.  He joined a majority opinion in Gross v. FBL Financial Services, Inc. which made it harder for plaintiff-employees to prove discrimination by saying that age must be the “but-for” cause of the challenged employment action.  That case was classic textualism — what did the text of the age discrimination law say?

But in Thompson v. North American Stainless, LP, he drafted the majority opinion expanding Title VII’s anti-retaliation provisions to cover people (such as another employee’s fiancee) within the “zone of interests” sought to be protected by the statute.

In short, Justice Scalia’s legacy on employment law cases is far more complex than some would give him credit for.

He left an indelible mark in how employment law cases are decided at the summary judgment stage through the St. Mary’s Honor Center v. Hicks case in 1993.  That case held that the trier of fact’s rejection of an employer’s asserted reasons for its actions does not entitle a plaintiff to judgment as a matter of law in a discrimination case.

Yet in the O’Connor v. Consolidated Coin Caterers case a few years later, he ruled in favor of a plaintiff-employee, opining that age discrimination need not be proven by replacement by someone outside the protected age class — only that the employee was replaced by someone “substantially younger”.

And to be sure, there are plenty of decisions that you could find fault in Scalia’s logic and, more than that, judgment.

His opinions against homosexuality were hurtful.  He once wrote that “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home”, and suggested nothing wrong with that.   He should be remembered for those decisions as well.

But I look to other justices for a guide as to how we should judge the man too. Both Justice Kagan and Ginsburg loved him as a good friend — even when they disagreed with his decisions.  I think that’s an enlightened position in an age where political purity is seen as a badge of honor.

So when I look back on Justice Scalia’s legacy, I’ll remember more than his well-written decisions.  I’ll remember that lunch 10 years ago. I’ll remember talking with him about how he thought it completely logical that the court was deciding cases only by looking by the text of the U.S. Constitution.  I’ll also remember a man during that lunch who was charming, witty and willing to share a good story with others.

And I’ll remember how fortunate I was to have broken bread with him.

robertsFirst things first. My favorite David Bowie song is “Heroes” (though I remember really being struck by its use in the 2001 movie, Moulin Rouge).

But the Bowie song that comes to mind today for various reasons is “Changes” and how it ties into another big story of the day — an oral argument before the U.S. Supreme Court in a case involving public employers.

At issue is whether public employees who do not want to be part of a union can still be required to pay an “agency fee”, which is typically the equivalent of the dues that union members pay as well.

The case is revisiting a 1977 case (the Abood case if you’re interested) which that requiring non-union members to pay fees for collective bargaining was constitutional.

The SCOTUSBlog sets up the argument on behalf of the non-union members like this:

Here is their logic: because unions cannot charge non-members for political activity and since non-members argue that everything a public-sector union does — even bargaining — is political in nature, it follows that any fees violate their First Amendment right not to pay for activity to which they object. Their target, in union parlance, is the “agency fee.”

The State of Connecticut has come out firmly on the side of upholding the current law.  In November 2015, it joined an amicus brief from New York urging the court to not change the current law and leave it to the state to determine the full scope.

It noted that 23 states permit these “agency fees” (also known as “fair share” fees) to “provide a mechanism for ensuring that represented employees contribute to  union costs germane to collective bargaining. The majority of these statutes make agency-fee requirements a permissible subject of bargaining and  authorize (but do not require) agency-fee provisions as part of public-sector collective-bargaining agreements.”
In the amicus brief, New York (and Connecticut) argue that the court should uphold the current scheme “recognizing that the government must have flexibility to manage its own internal operations, especially with respect to
matters affecting the delivery of government services.”

Why is this important, according to the states? A few things:

A lack of adequate funding can reduce a union’s ability to maintain the staff expertise necessary to perform collective-bargaining functions. Eliminating agency fees as a secure funding mechanism may require unions to focus disproportionate effort on recruiting members and collecting fees, thereby diverting attention from bargaining and contract-administration responsibilities. Moreover, the absence of secure funding may create skewed incentives for unions to make excessive bargaining demands or disparage management as antagonistic to labor, in order to encourage employees to give financial support.

Notably, a separate amicus brief filed by 18 other states argue the opposite.

It is time to abandon the meaningless distinction between collective bargaining and other political activity.  In the public sector, core collective bargaining topics such as wages, pensions, and benefits inherently implicate public policy, and in ways that matter.

Like lobbyists, public sector unions obtain binding agreements from the government that have enormous public impact — all without the natural counterweight of a financial market that exists in the private sector. In the public sector, it is taxpayers, not business owners and consumers, who foot the bill — and the bill is often steep.

Some pundits predict that the court will strike down agency fees.  Consistent with my post lack week, I won’t make any such predictions, but this case has significant implications obviously for public employers and it’ll be interesting to watch whether there will be any impact on private employers as well.

In any event, stay tuned and be sure to listen to some David Bowie in the meantime.

dress1
Probably not appropriate in workplace

I’m not a fan of click-bait, so if you clicked the headline just to know whether your company can still have a dress code policy after the Supreme Court’s decision in EEOC v. Abercrombie & Fitch, the answer is “yes”.

But there’s an important caveat and for that, you’ll need to read on.

The Court’s decision has caused a bit of a ruckus with some commentators portending massive changes to discrimination law. As I said last week, I just don’t see that.

The evidence in the case, according to the lower court’s decision, was that the supervisor had believed that the job applicant was “Muslim” and “figured that was the religious reason why she wore her head scarf.”

Moreover, despite being scored highly in her job interview, the area manager said that the job applicant “should not be hired because she wore a headscarf—a clothing item that was inconsistent with the [company’s] Look Policy.”

In other words, there was more than ample evidence that the applicant’s religious practices played a factor in the Company’s decision not to hire her.

How could a company get tripped up by its own dress code or “look” policy? Well, for one, the policy did not explicitly state that its policy could be tweaked in some instances to accommodate religious practices.  Even the company has now dropped that policy.

All is not lost though for the rest of us. Dress codes are still acceptable.  But companies should not treat them as hardened laws, never to be broken.

One simple fix is to add a clause regarding reasonable accommodations such as this:

Employees who believe a reasonable accommodation to this policy should be granted based on religion, disability or other grounds protected by applicable law should feel free to discuss the matter with their supervisor. Reasonable accommodation will be granted unless it would cause an undue hardship on the employer or other business circumstances warrant.

Obviously, each policy should be tailored to your business and to your state, so — as with your employee handbook — you should have this language reviewed by your employment law counsel.

Now, whether dress codes are a good thing? That’s an entirely separate question for another day…..

 

The long-awaited EEOC v. Abercrombie & Fitch case was released by the U.S. Supreme Court this morning, reversing the Tenth Circuit’s decision. You can download it here.

For anyone following the case, the decision shouldn’t come as a big surprise.  I’ve talked about the case before here and here.

The main holding of the case is this:

To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.
The court is quick to note that some anti-discrimination statutes DO require knowledge, such as the ADA.  But Title VII does not. And in that silence, the court said that it could not interpret the statute to include one.
The opinion, written by Scalia, explains the difference between knowledge and motive:
Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.
The decision is unusually brief — just seven pages, perhaps reflecting the clear-cut nature of the case.
Take note of footnote three too. The case is decided on narrower grounds than is typically laid out in the press:
While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument . It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do.
For employers, this decision should not come as much of a surprise.  And for employers, it means remaining aware that accommodating a person’s religious belief doesn’t necessarily require your actual knowledge.  Be understanding in your approach to these issues.
The EEOC’s statement earlier this year on accommodating religious beliefs still holds some sway too.
Some will argue (as they already have this morning) that the decision puts employers in a no-win situation.  I think that overstates it.  Employers should use common sense and discuss the topic if there appears to be an issue with an employer’s existing policy.

islamThe law works in mysterious ways.  (Cue the U2 song.)

Some years seem to get dominated by a particular type of issue, even though the law has been around for years.

This year, it seems as though issues of religion and the workplace are taking center stage.

Yesterday, the U.S. Supreme Court heard arguments in the EEOC v. Abercrombie & Fitch case that I talked about last month.  As usual, SCOTUSBlog has an excellent recap written “in plain English”.   The case involves the government’s suit against the retailer for failing to hire a Muslim teenager who wore a headscarf.

But notably, the issue in the case is slightly different than how it has been portrayed in the mainstream press.  The issue is “Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”

According to SCOTUSBlog, the judges seemed to be searching for a solution.

With the Justices apparently dissatisfied with both of the options presented to them by the parties, Justice Sonia Sotomayor offered a possible solution that would allow an employer like Abercrombie to inform a job applicant about its work rules without asking probing questions about the applicant’s religion:  if an applicant had a beard, for example, the employer could tell the applicant that its “Look Policy” prohibits beards (thereby notifying him of a possible conflict) and simply ask him whether he can comply with that policy.

Not all Justices were amenable to this proposal:  Chief Justice John Roberts complained that such an approach wouldn’t “cover anything that’s not readily apparent,” and Justice Scalia asked about the scope of such a rule – what if an applicant could comply, but it would make her uncomfortable?

I anticipate this decision will be among the last ones issued in June.

In the meantime, the EEOC yesterday released a new statement about religious accommodations in the workplace.  The statement reiterates the EEOC’s interest in the area.

I talked extensively about these issues in some prior posts here and here. 

If you’re still interested in the subject, stay tuned for details about a community forum program my law firm, Shipman & Goodwin is presenting on April 8, 2015 at our Hartford Office. Among the speakers: Steven Sheinberg, General Counsel of the Anti-Defamation League; Cheryl Sharp, Deputy Director of the Commission on Human Rights and Opportunities; and, Gabe Jiran of Shipman & Goodwin as well. I will be moderating.

 

Reading the Tea Leaves

Every year, I break out a crystal ball, or a magic 8-ball, or some tea leaves, and make some pronouncement about what will happen in the upcoming year.

It’s sort of a no-lose proposition. If I’m right, well, then I pat myself on the back. If I’m wrong, well, it’s just an educated guess.

So, continuing my series of outlook posts, here are three bold predictions on what we could see in the area of employment law on a national basis. In a post next week, I’ll look at Connecticut and make three more “bold” predictions.

1. A Battle Royale Over the NLRB: A new Republican-controlled Congress + a reinvigorated NLRB spells trouble.  We’ve already seen in the closing weeks of 2014 a renewed sense of vigor at the NLRB. It has taken aggressive stances in several cases and has now finalized “quickie” election rules that will disrupt the settled way that such elections have been held for years.  The Republicans who now control Congress will no doubt attempt to push back at such actions, but with President Obama wielding a veto pen, we’re unlikely to see such actions. Instead, look for lawsuits to be the continued mechanism by business interests to try to halt what they see as NLRB overreach.

2. The Supreme Court’s Makes No One Happy: The highest court has taken some interesting employment law cases over the years.  In Young v. UPS, I predict the court will punt on the issue of the extent of the Pregnancy Discrimination Act, deferring to the United States’ brief recommending the same thing.  In EEOC v. Abercrombie & Fitch, my sense is that the Court will find that actual knowledge of an employee’s religion is needed in order to find discrimination. (Argument set for February 25, 2015.) In Mach Mining v. EEOC, the Court will agree with the lower courts that have looked at the issue and find that the EEOC’s duty to conciliate before filing a charge cannot be the subject of an affirmative defense.  (That case is set for oral argument on January 13, 2015.)

3. Lots of New Regulations: There are a number of items that the EEOC and Department of Labor have on their regulatory agenda. Among the new regulations that are likely to come down the pike in 2015 are revisions to the “white collar” exemption for overtime purposes and guidance on “wellness plans”.

Bonus prediction: If I’m going to make one crazy prediction, here it is: Perhaps we will see consideration of the Employment Nondiscrimination Act as a way for Republicans to show that they can govern with their majorities in Congress.  Yes, I recognize this is a stretch but with both President Obama and Republican leaders talking about taking bold steps over Obama’s last two years, could we see a breakthrough on a compromise for this bill? Stranger things have happened.

Will these come true? Stay tuned.

When the U.S. Supreme Court rules on an issue in a 9-0 fashion — with a decision penned by Justice Thomas, no less — you can fairly conclude that the issue is not all that difficult.

Indeed, the SCOTUSBlog summed up the employment law decision today pretty succinctly:

Workers who are required to stay after their normal hours on the job to undergo a security screening are not entitled to overtime pay while they wait for that process and then go through it, the Supreme Court ruled unanimously on Tuesday.

The case of Integrity Staffing Solutions v. Busk involved screenings of employees at Amazon.com warehouses after their shifts concluded.

The screenings, which could take up to 25 minutes, were deemed by the court to not be “integral” to the employee’s job.  Those screenings could have been eliminated and it would have had no impact on the employee’s ability to do the job itself.

Contrast that with the “Donning and Doffing” case of earlier this year, where the putting on of personal protective equipment could be seen as necessary for employees to do their jobs (but that some clothes might not be.)

In Connecticut, the decision should have minimal impact.

The Second Circuit has been pretty consistent in its reading (essentially in concurrence with the Supreme Court’s conclusion) and even the U.S. Department of Labor had said that the employee’s arguments were contrary to the established reading of the law.

It’s not very different that the employees who are required take shuttle buses to parking lots after their shift. That is not compensable either.

Nevertheless, if you are an employer that requires your employees to come into work early or stay after and go through some type of screening or process, this is definitely a decision to review to make sure your practice falls within the applicable state and federal laws.

Over the past month, after the Supreme Court’s Hobby Lobby decision, much has been made in the press about how it is unprecedented for the court to consider a company’s religious beliefs in making its decisions.

The issue of taking into account a corporation’s religious belief in the workplace has been also catapulted to the center of the discussion regarding consideration of the Employment Non-Discrimination Act (ENDA), a bill which would prohibit discrimination in employment on the basis of sexual orientation on a federal level.

Some are now asking that ENDA, if passed, have an exception for religious organizations.  In response, a number of prominent civil rights groups have withdrawn their support for the bill.

A joint statement issued by several organizations, including the ACLU, said the following:

ENDA’s discriminatory provision, unprecedented in federal laws prohibiting employment discrimination, could provide religiously affiliated organizations – including hospitals, nursing homes and universities – a blank check to engage in workplace discrimination against LGBT people. The provision essentially says that anti-LGBT discrimination is different – more acceptable and legitimate – than discrimination against individuals based on their race or sex.

Here’s the thing, rightly or wrongly, the notion of a religious exemption in an employment discrimination law isn’t unprecedented; Connecticut passed one 23 years ago.

And it hasn’t been amended since.

I can now hear from many of you: Wait, what?

Yes, right there in Conn. Gen. Stat. Section 46a-81p is a specific exemption for religious corporations to the prohibition of sexual orientation employment discrimination.

The provisions of sections 4a-60a and 46a-81a to 46a-81o, inclusive, shall not apply to a religious corporation, entity, association, educational institution or society with respect to the employment of individuals to perform work connected with the carrying on by such corporation, entity, association, educational institution or society of its activities, or with respect to matters of discipline, faith, internal organization or ecclesiastical rule, custom or law which are established by such corporation, entity, association, educational institution or society.

Now, before you start reading “religious corporation” to include companies like Hobby Lobby, the answer may not be that simple.

For one thing, the sexual orientation anti-discrimination laws don’t define what they are explicitly; elsewhere in state law there is a reference however, to “religious corporations” and societies.  Conn. Gen. Stat. § 33-264a states that: “Three or more persons uniting for public worship may form a corporation or a voluntary association. Such a corporation shall be called a religious corporation and such a voluntary association shall be called a religious society.”

So perhaps including a company like a Hobby Lobby into this definition may not fit.

But what IS meant by “religious corporations” in this particular section on employment law? How do courts define it? Is it just a church or something more, like an organization’s for-profit bookstore? Well, I haven’t located a court case that has confronted the issue head on.

The Connecticut Supreme Court has only cited the statute by off-handed refereces that the legislature made an exemption for “religious organizations.”  But that too is a bit odd, because the word “organizations” isn’t in the statute itself. (See, for example, the court’s use in Patino v. Birken Manufacturing.)

I’ve taken a look at the bill analysis from the Office of Legislative Research from its passage in 1991 and it isn’t all that helpful. It states merely that “the bill exempts religious organizations from these employment provisions but only as to their employment of people to carry out their work.” (There’s that use of “organizations” again.)  An earlier version of the bill had a narrower exemption too, but that was expanded through a bill amendment at the time.

The Connecticut legislature has considered amendments, over time, that would, for example, put the sexual orientation anti-discrimination laws into the more general provisions prohibiting discrimination, but even this year’s Senate Bill 385, which would make that type of change, would keep the language of the “religious corporation” exemption as is.

I suppose that the lack of litigation on the state’s law exempting “religious corporations” from compliance with the anti-discrimination law may be indicative of its general acceptance here in Connecticut or its narrow application. And perhaps a court looking at this will find that for-profit corporations are just inherently different than religious ones and that the use of the language here precludes a broader interpretation.

But I suspect that the lack of discussion of this exemption is also due to the fact that many people are unaware of its existence or the specific language of the exemption either.

Either way, in light of the Hobby Lobby decision from the Supreme Court, perhaps we will see the Connecticut General Assembly revisit this statute. While an exemption for a “religious corporation” may have been a necessary compromise in 1991 at the time of the bill’s original passage, I wonder if legislators believe it should be construed as broadly as some might argue after Hobby Lobby.

After all, if corporations are “people” too, it’s not that far of a leap for someone to argue that they can be “religious corporations” as well.

The U.S. Supreme Court this morning came out with two controversial decisions that will impact employers in Connecticut.

The first one, Harris v. Quinn, dealt with whether non-union public employees could be forced to pay union dues.  The court issued a relatively narrow holding, ruling that “partial” public employees could not be required to do so.  In doing so, it made a distinction with “full-fledged” public employees.

The second one, Burwell v. Hobby Lobby, dealt with whether for-profit employers could be required to provide contraceptive coverage under the Affordable Care Act. The court again issued a (relatively) narrow holding, ruling that closely-held corporations (where more than 50% of stock is held by 5 or fewer individuals) can opt out of the contraceptive coverage for religious reasons.

There is going to be lots of coverage this week on the impact of these decisions generally, but I thought I would touch on a few thoughts for Connecticut employers.

First, employers shouldn’t overread the decisions. While these decisions may lay the groundwork for broader decisions from the court in the future, these decisions aren’t as broad as some reports suggest.

Second, a very interesting issue is developing about whether employers could use this decision to discrimination against employees on things like race, gender or sexual orientation based on their religious beliefs. The majority opinion takes pains to discount that notion:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. … Our decision today provides no such shield. The Government has a compelling interest inproviding an equal opportunity to participate in the workforce without regard to race, and prohibitions on racialdiscrimination are precisely tailored to achieve that critical goal.

Third, the decision also raises the question of the impact on state anti-discrimination laws. For sexual orientation and gender identity claims, “religious corporations” are given a specific exclusion of coverage.  Could a company like Hobby Lobby now be considered a “religious corporation” under state law? Or can it claim some other type of exemption given that Connecticut is already excluding some employers? And what is the impact of this decision on the other types of anti-discrimination laws that Connecticut has set up that are much broader than federal law?

It is this last set of questions that I think is most intriguing and necessitate some further review.

Connecticut law also prohibits discrimination against employees because of theirreligious beliefs too. How will the Hobby Lobby decision impact that aspect as well?

Today’s opinions will no doubt have an impact on employers. The real question that remains to be seen in the upcoming months and years is, “How Much?”