| Special #50 - July 9, 2020 |
| Articles and Updates Today
- Supreme Court Expands Religious-School Exemption from Civil-Rights Laws By Allen Smith, J.D.
July 8, 2020
- ¶47,116 EEOC comes clean on conciliation pilot, announces mediation pilot, too — FEDERAL NEWS, By Pamela Wolf, J.D.
(Jul. 9, 2020)
- Constangy.com News & Analysis: Predicaments of protest: Which expressions are protected, and which are not? By Frank Shuter / Atlanta Office
July 9, 2020
- ¶47,119 Delivery contractor pays back wages after denying paid sick leave to employee ordered to self-quarantine — FEDERAL NEWS, (Jul. 9, 2020)
- Gov. Kemp Issues Guidance on CARES Act Funding to Georgia Communities JUNE 29, 2020 - HRDive BRIEF : EEOC sues Mitsubishi dealer, saying HR exec 'witnessed and encouraged' sex harassment AUTHOR Lisa Burden
PUBLISHED July 9, 2020
- Georgia Department of Public Health COVID-19 Daily Status Report
- Update on our 2020 Annual Conference at The Westin Harbor Golf Resort and Spa
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Supreme Court Expands Religious-School Exemption from Civil-Rights Laws
By Allen Smith, J.D. July 8, 2020 The U.S. Supreme Court ruled today that two elementary school teachers at religious schools could not pursue their claims of age and disability discrimination. The court found that employees such as teachers who hold important positions can't sue their employers because of the First Amendment's freedom of religion clauses.
In Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court decided in a 7-2 decision written by Justice Samuel Alito Jr. that although the teachers were not given the title of minister, they fit within the so-called ministerial exception to anti-discrimination laws.
"The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission," the court said. "Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate."
The school administrators in the consolidated case before the court both thought the two plaintiffs had a sufficient understanding of Catholicism to teach their students, and judges should not second-guess the schools' own credentialing requirements, the court wrote. Both teachers held themselves out as authorities on religion to their students and, by extension, to the students'families, it added.
The fact that one of the teachers was not a practicing Catholic did not decide the outcome of the case. "Acceptance of that argument would require courts to delve into the sensitive question of what it means to be a practicing member of a faith, and religious employers would be put in an impossible position," the court wrote. "It is not clear how religious groups could monitor whether an employee is abiding by all religious obligations when away from the job."
Concurrence
In a concurring opinion, Justice Clarence Thomas wrote, "The First Amendment's protection of religious organizations' employment decisions is not limited to members of the clergy or others holding positions akin to that of a minister."
He added, "Such protection extends to the laity, provided they are entrusted with carrying out the religious mission of the organization. … This deference is necessary because, as the court rightly observes, judges lack the requisite understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. What qualifies as ministerial is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis."
Dissent
In a dissent joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor said the court had issued a new test for the ministerial exception: whether a church thinks its employees play an important religious role. "Because that simplistic approach has no basis in law and strips thousands of teachers of their legal protections, I respectfully dissent," she wrote.
Under a prior decision, Hosanna-Tabor, the Supreme Court outlined the four factors that were to be considered when determining whether a teacher was employed at a religious school as a minister:
- The teacher's formal title.
- The substance reflected in that title.
- The teacher's own use of that title.
- The important religious functions the teacher performed for the religious institution.
"Hosanna-Tabor's well-rounded approach ensured that a church could not categorically disregard generally applicable anti-discrimination laws for nonreligious reasons," the dissent said. "Because the court's new standard prizes a functional importance that it appears to deem churches in the best position to explain, one cannot help but conclude that the court has just traded legal analysis for a rubber stamp," Sotomayor wrote.
She added, "In expanding the ministerial exception far beyond its historic narrowness, the court overrides Congress' carefully tailored exceptions for religious employers."
[Need help with legal questions? See the new SHRM LegalNetwork.]
Reactions
Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, said the Supreme Court expanded the standard for the ministerial exception beyond the Hosanna-Tabor standard, but he didn't think the court defined the ministerial exception as broadly as the dissent suggests.
Nonetheless, David Barron, an attorney with Cozen O'Connor, said today's ruling "is especially important to religious schools because of the recent opinion this term finding that Title VII [of the Civil Rights Act of 1964]'s prohibition of discrimination based on sex should be interpreted broadly to include sexual orientation and transgender status."
Barron added, "That decision set up a debate over the extent to which religious schools would have to accommodate teachers or other employees whose lifestyles conflicted with the teachings of the religious institution. This decision today alleviates many of those concerns—rightly or wrongly—holding that teachers who are involved in religious instruction are largely exempted from anti-discrimination laws."
Limits to the Ruling
There may be limits to the court's ruling, Segal cautioned.
He didn't interpret the decision as meaning all teachers at religious schools are necessarily covered by the ministerial exception. The court instead looked at what an employee does and was less focused on his or her title, Segal said.
So a calculus teacher who teaches only math at a religious school might not be covered, while another calculus teacher who regularly leads the class in prayer arguably would be. If someone's role is entirely secular, such as an accountant's or a janitor's, applying the exception would be harder.
Thus, anyone who represents the religious school in public arguably would be covered. So an executive assistant to a principal might be covered.
Even if the ministerial exception applies, Segal said religious schools might consider two factors: First, they should assess whether, if they apply the ministerial exemption broadly, they have enough applicants to meet the religious requirements. Second, even if they apply the exception, religious organizations might consider not banning applicants based on their sexual orientation or gender identity. Instead, the organizations might tell individuals to follow their beliefs on marriage in class and not discuss their sexual orientation or gender identity with students or employees.
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| | | | ¶47,116 EEOC comes clean on conciliation pilot, announces mediation pilot, too — FEDERAL NEWS,
By Pamela Wolf, J.D.
(Jul. 9, 2020)
After several media reports about a conciliation pilot program instituted by Chair Janet Dhillon without any formal announcement to the public, the EEOC on July 7, came clean, disclosing two six-month pilot programs that it says will expand opportunities for parties to voluntarily resolve charges through mediation and increase the effectiveness of the conciliation process. Confirming earlier reports, the conciliation pilot began on May 29; the mediation pilot began a day earlier on July 6.
Conciliation pilot. Previously, in a June 22 letter to Dhillon, Senator Patty Murray (D-Wash.) and Congressman Bobby Scott (D-Va.) urged the EEOC Chair to halt the implementation of what they called her "partisan plan to weaken the EEOC’s ability to hold employers accountable for workplace discrimination by overhauling the conciliation process." The lawmakers were concerned that the not-yet formally disclosed piloted plan would put unnecessary hurdles on those charged with investigating and addressing workplace discrimination in an effort to ease the burden of enforcement actions on employers. Dhillon unilaterally implemented the pilot without the consideration of all of the other EEOC Commissioners, as the lawmakers understood it.
Easing the burden on employers. As reported, the conciliation pilot "would impose additional hurdles on EEOC field investigators and attorneys that appear to serve only to ease an alleged burden on employers," Murray and Scott said. "If the reporting is true, the pilot could undermine the conciliation process’s substantive purpose of ending workplace discrimination, in direct conflict with the spirit and text of Title VII."
The changes to the conciliation process would make it harder for EEOC investigators and attorneys to fight for better settlement outcomes for workers or initiate lawsuits when warranted, according to Murray and Scott.
Mach Mining. The lawmakers cited the seminal case affirming the importance and breadth of EEOC’s conciliation authority under Title VII—the Supreme Court’s 2015 Mach Mining v. EEOC decision: "[T]he Supreme Court made clear that Title VII’s ‘conciliation provision explicitly serves a substantive mission: to "eliminate" unlawful discrimination from the workplace.’" Further, "Title VII’s conciliation mandate requires the EEOC only ‘inform the employer about the specific discrimination allegation’ by ‘describ[ing] both what the employer has done and which employees (or what class of employees) have suffered as a result,’ and the agency ‘try to engage the employer in some form of discussion.’"
This latitude, according to Murray and Scott, is so that the EEOC "can conduct the conciliation process in the way best suited to address the unlawful discrimination allegations brought before it."
EEOC explains change in process. In its July 7 announcement, the EEOC, too, cited the Supreme Court’s 2015 ruling: "By requiring conciliation, Congress made cooperation and voluntary compliance central to the work of the agency, a point that was recognized by the Supreme Court in Mach Mining v. EEOC. The EEOC’s conciliation pilot, which began on May 29, 2020, makes a single change to the process to drive accountability and is also part of our broader effort to emphasize the importance of conciliation as a tool for remedying complaints of discrimination."
"The pilot builds on a renewed commitment for full communication between the EEOC and the parties, which has been the agency’s expectation for many years, and adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents," the EEOC said. "In short, the pilot seeks to drive greater internal accountability and improve the EEOC’s implementation of existing practices."
Mediation pilot. Turning to mediation, the EEOC explained that its ACT (Access, Categories, Time) Mediation pilot, which began on July 6, expands the categories of charges eligible for mediation and generally allows for mediation throughout an investigation. Only certain categories of charges are currently referred to the mediation program at the beginning of the charge investigation process. The pilot also will expand the use of technology to hold virtual mediations. "
EEOC’s popular mediation program has been tremendously successful over its 20-year history and the ACT Mediation pilot creates more opportunities to resolve charges throughout an investigation," said EEOC Chair Janet Dhillon. "Similarly, the change being piloted in the conciliation process ensures internal accountability and emphasizes resolving charges before resorting to litigation."
Source: Written by Pamela Wolf, J.D.
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| | | Constangy.com News & Analysis: Predicaments of protest: Which expressions are protected, and which are not?
By Frank Shuter / Atlanta Office
July 9, 2020
This year has come in like a lion and -- with the pandemic continuing, protesters still marching, and a presidential election looming -- it will not go out like a lamb. Issues ranging from systemic racism to wearing masks will continue to polarize the general populace and, with it, your workforce. Our previous bulletins (here and here), discussed the potential repercussions for employers who fail to properly respond to employee protests regarding alleged failures to implement and enforce appropriate COVID-19 safety protocols. Now, we focus on the potential repercussions of using adverse employment actions to regulate the “political” conduct of your employees.
Political conduct includes a broad spectrum of activity, which can occur both on and off the clock. It may include attending rallies, public speaking, commenting on social media, or wearing hats or t-shirts with political messages. Needless to say, one employee’s beliefs and expressions may conflict with those of another employee. For example, one employee may wear a “Black Lives Matter” t-shirt, while a co-worker may wear a t-shirt with a picture of the Confederate flag, and this can result in workplace disputes and complaints.
Contrary to the belief of some employees, employees in the private sector do not have a First Amendment right to engage in political activities at work. Contrary to the belief of some employers, the employment-at-will doctrine does not necessarily permit them to take adverse actions against employees who engage in political activities. Rather, properly responding to political conduct by employees is much more nuanced and dependent on the circumstances of the situation.
Off-duty conduct
Many states and localities prohibit employers from taking adverse actions against employees based on their off-duty political activities. (Some laws actually prohibit taking adverse actions for any lawful off-duty conduct, and are not limited to political conduct.) As with most things in life, the devil is in the details when it comes to the types of political activities covered by those prohibitions. For example, one state or locality may prohibit employers from taking adverse action based on attendance at a political protest or rally, while others may prohibit adverse action only if it is based on an employee’s political affiliations.
These prohibitions may be subject to exceptions when the off-duty conduct implicates an employer’s interests. For example, an employer may be allowed to take action against an employee for making inflammatory comments and suggesting that he or she is speaking for the employer.
It is not the purpose of this article to describe the scope and reach of every such state law or local ordinance. But employers should seek counsel before deciding to take any type of adverse action against an employee for engaging in off-duty political activity, even if that activity is in support of a cause that the employer finds offensive.
Even if there are no applicable state laws or local ordinances, taking adverse action against an employee for off-duty political conduct may prompt claims of discrimination under federal discrimination laws, such as Title VII. For example, terminating an employee for attending a protest against racism, while not terminating an employee for making racially offensive comments on social media, may prompt claims of disparate treatment based on race.
When an employer attempts to regulate its employees’ off-duty conduct, without regard to whether that conduct damages the employer’s reputation, exposes its proprietary information, or otherwise implicates a protectable interest, the employer has started down a road that could lead to litigation.
On-duty conduct
On-duty political activities, on the other hand, fall more neatly into the realm of conduct that an employer can and usually should regulate. Allowing political expressions in the workplace can lead to conflicts between employees and interfere with productivity. Prohibiting this type of on-duty expression serves the legitimate, non-discriminatory interests of maintaining harmony, good morale, and productivity.
However, an employer’s ability to regulate on-duty conduct is not without limits. For example, if the on-duty political expression is the product of, or even overlaps with, complaints about the employees’ wages, hours or working conditions, the conduct may be protected by the National Labor Relations Act, the anti-retaliation provisions of Title VII, or the terms of an applicable collective bargaining agreement. For example, a complaint about racially disparate treatment at the company (as opposed to a complaint about racially disparate treatment in the community at large) may be legally protected.
Once again, it is impossible to describe every situation and pitfall that an employer may face when attempting to regulate on-duty political expression. But employers should be aware of the possibilities, look both ways before trying to cross the street, and ask for help when needed.
For a printer-friendly copy, click here. |
| | | | | ¶47,119 Delivery contractor pays back wages after denying paid sick leave to employee ordered to self-quarantine — FEDERAL NEWS,
(Jul. 9, 2020)
After an investigation by the U.S. Department of Labor’s Wage and Hour Division (WHD), Black Swan Inc. – a delivery service contractor based in Austin, Texas – has paid $800 in back wages to an employee for wrongly denying paid sick leave for a qualifying reason under the Emergency Paid Sick Leave Act (EPSLA) provisions of the Families First Coronavirus Response Act (FFCRA). FFCRA allows employees to take paid leave when advised by a health care provider to self-quarantine or while seeking a medical diagnosis.
WHD investigators found that Black Swan Inc. failed to provide the employee paid sick leave despite a health care provider’s order to self-quarantine for two weeks. As a FedEx contractor, the employer thought it was not covered by the Act because it provided services for FedEx, an employer with more than 500 employees. As a contractor with less than 500 employees, Black Swan is not exempt from FFCRA provisions.
Black Swan cooperated fully with investigators and, once it understood its responsibility under the new law, agreed to pay the employee’s wages for the days covered by paid sick leave. The employer also agreed to future compliance with the FFCRA, which went into effect on April 1, 2020.
“Employers should familiarize themselves with the new law and pay employees for time off as required under the Families First Coronavirus Response Act,” said Wage and Hour District Director Nicole Sellers in Austin, Texas. “The U.S. Department of Labor remains committed to protecting employees and educating employers so that all parties receive the benefits and protections the law provides.”
SOURCE: dol.gov
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| | | Gov. Kemp Issues Guidance on CARES Act Funding to Georgia Communities
JUNE 29, 2020
Atlanta, GA - Today Governor Brian P. Kemp issued the following correspondence to all city and county leaders regarding the distribution of federal Coronavirus Aid, Relief, and Economic Security (CARES) Act funding: Link to Governor Kemp's Press Release
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| | | HRDive BRIEF : EEOC sues Mitsubishi dealer, saying HR exec 'witnessed and encouraged' sex harassment
AUTHOR Lisa Burden PUBLISHED July 9, 2020
Dive Brief :
Executives at a New York Mitsubishi dealership did nothing to stop a general manager from repeatedly sexually harassing female employees, the U.S. Equal Employment Opportunity Commission (EEOC) has alleged in a lawsuit. In fact, the vice president of human resources "witnessed and encouraged the harassment," the agency claimed.
The general manager of James Mitsubishi Hamburg made numerous unwelcome sexual advances and comments to two female employees, the Commission alleged. His behavior included unwelcome massages, mimicked sex acts and inappropriate comments and invitations.
One woman quit because the employer "took no action to stop the harassment," EEOC said.
Dive Insight :
Employers may be "automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages," according to EEOC. Employers that act appropriately when harassment complaints are made have a strong defense in face of a legal claim.
The EEOC has sued several employers recently, alleging that they ignored the hostile work environments created by managers and supervisors. The agency took an Arkansas Pei Wei to court, for example, for allegedly ignoring complaints that two managers were sexually harassing employees.
Generally, to avoid liability in instances in which sexual harassment has occurred, the employer must prove that it tried to prevent and promptly correct the harassing behavior and that the employee failed to take advantage of the preventive or corrective opportunities provided by the employer. Recently, a court ruled that an employer was not liable for sexual harassment because it took prompt action to stop the harassment.
Compliance training is also important in preventing discrimination and harassment claims. Employers should conduct harassment training at least once a year, with separate sessions for managers and employees, Robin Shea of Constangy Brooks, Smith & Prophete previously told HR Dive.
*We offer a HR Compliance Audit : Provides a detailed look into potential areas of non-compliance. Review and overview by Constangy, Brooks, Smith and Prophete, LLP, assures attorney/client privilege. (Contact us for a qoute)
*We, alos, offer Sexual Harassment Prevention Training Program here is a link to get more information on the program - our website link
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| | | Georgia Department of Public Health COVID-19 Daily Status Report For: 06/03/2020 Updated 3pm daily
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| | | | | Mark Your Calenders
Georgia Employers' Association's 2020 Annual Conference at The Westin Harbor Golf Resort and Spa
Conference will be held on September 27 – 29, 2020
Title: 2020 Vision - A Decade for Change
Please contact us if you have any questions. Registration will start soon.
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Georgia Employers' Association |
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