Pushing The Women’s Movement Forward
Congress should update labor laws, recognize familial needs and reform Social Security.

Read more on Forbes

Product Description
Bennett-Alexander and Hartman’s Employment Law for Business, 6/e addresses law and employment decisions from a managerial perspective. It is intended to instruct students on how to manage effectively and efficiently with full comprehension of the legal ramifications of their decisions. Students are shown how to analyze employment law facts using concrete examples of management-related legal dilemmas that do not present clear-cut solutions. The methods of arriving at… More >>

Employment Law for Business

More federal funds for R.I. comes with a catch
The state would have to liberalize its unemployment program which could be more costly in the long run

Read more on The Providence Journal

The Wisconsin Supreme Court ruled that religious schools are not covered by state laws against employment discrimination. The decision was 4 to 3, and held that freedom of religion association gives the religious schools complete latitude in hiring decisions for teachers.

“Wendy Ostlund (“Ostlund”) brought a claim alleging that she was terminated from her first-grade teaching position at a Catholic school on the basis of her age in violation of the Wisconsin Fair Employment Act (“WFEA”). The school responded that her position was “ministerial,” maintaining therefore, that her suit was barred by the First Amendment of the United States Constitution.”

The majority reasoned that teachers are closely linked to the religious mission of the school. The decision exempts all employees important to a group’s religious mission, including teachers, from employment laws.

“We conclude that both the Free Exercise Clause of the First Amendment of the United States Constitution and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution preclude employment discrimination claims under … the Wisconsin Fair Employment Act for employees whose positions are important and closely linked to the religious mission of a religious organization. In the case at bar, Ostlund’s school was committed to a religious mission——the inculcation of the Catholic faith and worldview——and Ostlund’s position was important and closely linked to that mission. Therefore, Ostlund’s age discrimination claim under the WFEA unconstitutionally impinges upon her employer’s right to religious freedom. Accordingly, we reverse the court of appeals’ decision and remand to the circuit court to dismiss Ostlund’s claim.”

The dissent argued that the decision allows discrimination against lay employees.

Both the decision of the Court and the dissenting opinion dicussed whether this outcome makes the Wisconsin school voucher program unconstitutional. The majority opinion says that issue has been previously settled by U. S. Supreme Court case law.

The Court pointed out the division among other Courts’ holdings.
Similar holdings

“In addition to those discussed in supra ¶¶50-54, see, e.g., EEOC v. Hosanna-Tabor Evangelical Lutheran Church & Sch., 582 F. Supp. 2d 881 (E.D. Mich. 2008) (holding that the ministerial exception applied to a kindergarten teacher who taught at a Lutheran school offering a “Christ-centered education” and where she received the title of “commissioned minister” from the Lutheran Church——Missouri Synod, even though she did not need to be Lutheran and the teacher’s religious-oriented tasks took up only about 45 minutes of her 7 hour day); Stately v. Indian Cmty. Sch. of Milwaukee, Inc., 351 F. Supp. 2d 858, 868 (E.D. Wis. 2004) (holding that the ministerial exception applied to an elementary school teacher because the school required the teacher to integrate Native American culture and religion into her classes, she participated in and sometimes led the school’s religious ceremonies and cultural activities, and she helped develop her students spiritually); Porth v. Roman Catholic Diocese of Kalamazoo, 532 N.W.2d 195 (Mich. Ct. App. 1995) (holding that an elementary school teacher’s discrimination claims were barred by the First Amendment, and even though the balance of her duties was teaching secular subjects, the teacher’s overall duties were “inexorably intertwined with the primary function of defendants’ school, which is the education of its students consistent with the Catholic faith”).”

Contrary holdings

“See, e.g., DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993) (holding that the ministerial exception did not apply to a lay teacher who brought an ADEA action against a parochial school even though the teacher performed some religious duties, including leading his students in prayers and taking them to Mass); Redhead v. Conference of Seventh-day Adventists, 440 F. Supp. 2d 211 (E.D.N.Y. 2006) (holding that the ministerial exception did not apply to an elementary school teacher who taught primarily secular subjects but also taught religion for an hour a day and attended religious ceremonies with students once per year); Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d 849 (S.D. Ind. 1998) (holding that the ministerial exception did not apply to a teacher at a Catholic elementary school because teachers at this school were not required to be Catholic, the vast majority of classes she taught were secular, and she did not lead worship services); EEOC v. Tree of Life Christian Schs., 751 F. Supp. 700 (S.D. Ohio 1990) (holding that the ministerial exception did not apply to parochial school teachers and administrators).”

The opinion of the Court is at Coulee Catholic Schools v. Labor and Industry Review Commission and Wendy Ostlund.

Another setback for older employees in the US Supreme Court. In Gross v. FBL Financial Services, Inc., the Court rejected the argument that age as a motivating factor in an employment decision is illegal under the Age Discrimination in Employment Act. A plaintiff bringing an ADEA disparate-treatment claim must prove that age was the “but-for” cause of the adverse employment action. Even when a plaintiff has evidence that age was one motivating factor in that decision, the burden of persuasion does not shift to the employer to show that age did not determine its action. The quote below is the Court’s syllabus.

“(a) Because Title VII is materially different with respect to the relevant burden of persuasion, this Court’s interpretation of the ADEA is not governed by Title VII decisions such as Price Waterhouse and Desert Palace, Inc. v. Costa, 539 U. S. 90, 94–95.  This Court has never applied Title VII’s burden-shifting framework to ADEA claims and declines to do so now. When conducting statutory interpretation, the Court “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.”  Federal Express Corp. v. Holowecki, 552 U. S. ___, ___. Unlike Title VII, which has been amended to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse action, … the ADEA does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.  Moreover, Congress neglected to add such a provision to the ADEA when it added §§2000e–2(m) and 2000e–5(g)(2)(B) to Title VII, even though it contemporaneously amended the ADEA in several ways.  When Congress amends one statutory provision but not another, it is presumed to have acted intentionally, see EEOC v. Arabian American Oil Co., 499 U. S. 244, 256, and “negative implications raised by disparate provisions are strongest” where the provisions were “considered simultaneously when the language raising the implication was inserted,” Lindh v. Murphy, 521 U. S. 320, 330.
(b) The ADEA’s text does not authorize an alleged mixed-motives age discrimination claim.  The ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act.  See Hazen Paper Co. v. Biggins, 507 U. S. 604, 610.  To establish a disparate-treatment claim under this plain language, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision. See Bridge v. Phoenix Bond & Indemnity Co., 553 U. S. ___, ___. It follows that under §623(a)(1), the plaintiff retains the burden of persuasion to establish that “but-for” cause.  This Court has previously held this to be the burden’s proper allocation in ADEA cases, see, e.g., Kentucky Retirement Systems v. EEOC, 554 U. S. ___, ____, and nothing in the statute’s text indicates that Congress has carved out an exception for a subset of ADEA cases.  Where a statute is “silent on the allocation of the burden of persuasion,” “the ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims.” Schaffer v. Weast, 546 U. S. 49, 56.  Hence, the burden of persuasion is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action.
(c) This Court rejects petitioner’s contention that the proper interpretation of the ADEA is nonetheless controlled by Price Waterhouse, which initially established that the burden of persuasion shifted in alleged mixed-motives Title VII claims.  It is far from clear that the Court would have the same approach were it to consider the question today in the first instance. Whatever Price Waterhouse’s deficiencies in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply.  The problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims.” [emphasis added]

So the question is, will stare decisis preserve the Price Waterhouse burden-shifting approach?

The highest duty of an employer is to keep the workplace safe for the employees. A great contribution to knowledge was done at the Confined Space blog by Jordan Barab. His blog helps to spread the work about risks including the terrible problem of death by accident on the job.

He has moved on to work at the House Education and Labor Committee. All of us who care about the safety of workers are in debt to him for increasing the awareness of workplace injury risk. His blog has had a million visits.

In his honor, this video (also linked to on the Confined Space blog) with music by Pete Seeger will help us remember those who have gone before.

Thank you Pete Seeger and thank you Jordan Barab.

Your comments are welcome here.

Bad result for employees over 40: The US Supreme Court has held that a union can agree that age discrimination claims must be arbitrated.

14 PENN PLAZA LLC ET AL. v. PYETT ET AL. Decided April 1, 2009.

The Supreme Court ruled 5 to 4. A collective-bargaining agreement can require union members to arbitrate age-discrimination claims. That is, the claim will be arbitrated and cannot be brought in court. This is bad for older workers because arbitration is a poor forum for employees. For example, there is no jury in an arbitration. (For a discussion about how bad arbitration is even between businesses see the recent blog post, on a law site, Another Unfortunate Arbitration Agreement.)

The 14 Penn Plaza case involved night watchmen and a real estate company, 14 Penn Plaza LLC. The company is a member of a multiemployer bargaining association for New York City real-estate companies.

The night watchmen were downgraded to lower-paying jobs as porters and cleaners after the company, with the union’s consent, hired a unionized security contractor to provide security guards for the building.

The reassigned employees asked their union to file a grievance, because the undesireable reassignments were made because of their age, in violation of Age Discrimination in Employment Act (ADEA). The employees said the new jobs had lower income and were undesirable compared to their former jobs.

The union requested arbitration under the collective-bargaining agreement. After the initial hearing, the union withdrew the age-discrimination claims, because the new security contract prevented it from objecting to the workers’s reassignments as discriminatory.

The reassigned workers then filed a complaint with the Equal Employment Opportunity Commission, and received a right-to-sue letter.

After the employees filed their suit in court, the company moved to compel arbitration of the age-discrimination claims. The trial court denied the motion, and the U.S Court of Appeals for the Second Circuit affirmed, holding that under an earlier Supreme Court decision, Alexander v. Gardner-Denver Co., collective-bargaining agreements could not deny the right to a court proceeded by requiring arbitration of age discrimination claims.

The Supreme Court reversed. “There is no legal basis for the court to strike down the arbitration clause in this collective-bargaining agreement, which was freely negotiated by the union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age-discrimination claims at issue in this appeal.”

The court rejected the employees’ argument that such an arbitration clause is invalid because it affects the employees’ individual statutory rights.
A provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable.  The Union agreed that employment-related discrimination claims, including ADEA claims, would be resolved in arbitration. The ADEA does not preclude arbitration of claims brought under the statute.

The Wall Street Journal has a video about a benefit available that helps with the expensive COBRA premiums. It applies to those who were laid off:

Video about help with Cobra payments

Visit the link above or watch it here:

The video talks about a new benefit in the federal stimulus bill. Over half of the expense of Cobra health insurance will get covered. An employment lawyer tells about who qualifies and how long the benefit will last. Great benefit for the unemployed.