An Expensive Lesson in Religious Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

A press release issued by the EEOC caught my eye this week because it involved the settlement of a lawsuit that would have been so easy to avoid. According to the press release, XPO Last Mile, Inc., a logistics company that specializes in the delivery of items such as office furniture, home furnishings and fitness equipment, will pay $94,541 and furnish significant relief to settle a federal religious discrimination lawsuit. What did this company do that resulted in the payment of an over $94,000 settlement? It rescinded a job offer to a Jewish employee who could not work on Rosh Hashanah.

According to the EEOC’s suit, XPO Last Mile’s operations manager offered an applicant a dispatcher/customer service position at its Elkridge, Md., office and told him his start date would be on Oct. 3, 2016. When the applicant told the operations manager he could not start work then because he celebrated the Jewish holiday Rosh Hashanah on that date, the operations manager replied that he thought it would be acceptable for the applicant to start on Oct. 4. Later that evening, however, the market vice president called and told the applicant that the company would not give him a religious accommodation.

The EEOC filed suit and alleged that XPO Last Mile violated federal law when it revoked its offer of employment because the applicant was unable to work on Rosh Hashanah due to his religious beliefs.

How could the company have avoided this lawsuit and the payment of an over $94,000 settlement? It should have given the employee the ability to not work on his religious holiday without the risk of losing his job. Even though he was newly hired, the employee was entitled to an accommodation of his sincerely held religious beliefs unless it would pose an undue hardship to the employer. It is hard to imagine that moving this guy’s start date one day due to a religious holiday would have been an undue hardship for the company. More likely, someone who is not well-versed in federal employment law got bent out of shape because a new hire was already “asking for a day off.” That person, and the company, have learned an expensive lesson.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Religious Accommodation: What is Reasonable? The Tenth Circuit Rejects the EEOC’s Proposed Standard.

By Kathleen Jennings (kjj@wimlaw.com)

This week, the Tenth Circuit Court of Appeals issued a decision in a case that involves workers who cannot work on certain days for religious reasons, and how an employer should go about accommodating such religious practices. The case, Tabura v. Kellogg USA, 10th Cir., No. 16-4135 (January 17, 2018), was filed by two Kellogg USA workers, who are Seventh-day Adventists, who said they were fired for not working Saturday shifts. The accommodation offered by Kellogg was a policy that allowed them to swap shifts with other workers. However, Kellogg assessed disciplinary points against any employee who missed part or all of a scheduled work day without taking paid time off or trading shifts with another employee. The plaintiffs were unable to find workers who would swap shifts with them, and eventually, they were terminated for missing too much work.

The lower court granted summary judgment in favor of Kellogg, and the Tenth Circuit reversed.

The case caught the attention of the EEOC, and the EEOC filed a brief in support of the plaintiffs. In its brief, the EEOC argued that the accommodation offered by Kellogg was not reasonable, and it further argued that to be reasonable, an accommodation must “eliminate” the conflict between the employee’s religious practice and his work requirements. The Court rejected the EEOC’s proposed rule, finding instead that the question of whether an accommodation is reasonable must be made on a case-by-case basis, grounded on the specific facts presented by a particular situation. The Tenth Circuit remanded the case back to the district court because it was unclear whether Kellogg satisfied its obligation to accommodate the workers’ religious practices due to the disputed facts surrounding the difficulty the plaintiffs had in arranging voluntary swaps with other, qualified employees.

The takeaway: Title VII requires that an employer, short of undue hardship, make reasonable accommodations to the religious needs of its employees. “Accommodate . . . means . . . allowing the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015). This is not a “one size fits all” rule. Ultimately, reasonableness is a fact-specific determination.
Relevant factors may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Some common methods of religious accommodation in the workplace include the following:

  • Scheduling Changes, Voluntary Substitutes, and Shift Swaps
  • Changing an employee’s job tasks or providing a lateral transfer
  • Making an exception to dress and grooming rules
  • Use of the work facility for a religious observance
  • Accommodations relating to payment of union dues or agency fees
  • Accommodating prayer, proselytizing, and other forms of religious expression

Ultimately, the determination of whether and how an employer can accommodate an employee’s sincerely held religious beliefs requires the balancing of many factors. We recommend that these decisions be made in consultation with qualified employment counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

 

So You Want to Hire an Unpaid Intern: the Department of Labor Has Some New Guidelines

By Kathleen J. Jennings (kjj@wimlaw.com)


The Department of Labor has issued new guidelines for employers that want to hire unpaid interns. These new guidelines are much less stringent than the previous Obama-era guidelines and should allow more employers to set up qualified unpaid internships.

Keep in mind that the FLSA requires “for-profit” employers to pay employees for their work. Interns and students, however, may not be “employees” under the FLSA—in which case the FLSA does not require compensation for their work. Application of the new guidelines will determine whether an intern should be paid or not.

The new DOL guidelines use a 7 factor “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the FLSA. This test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. The following seven factors are part of the test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The “primary beneficiary test” is supposed to be a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.

If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.

Pro tip: When in doubt, it is always safer to go ahead and pay an intern at least the minimum wage.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

Has Your State’s Minimum Wage Gone Up in 2018?

By Kathleen Jennings (kjj@wimlaw.com)

2018 has brought an increase in the minimum wage in some states and municipalities. (Georgia is not one of those states, however.) Below are the states that have increased their minimum wage, and , in some cases, the tipped minimum wage, in 2018:

Old Old New for 2018 New for 2018
State Categories Minimum Wage Tipped Minimum Wage Minimum Wage Tipped Minimum Wage
Alaska $9.80 $9.84
Arizona $10.00 $7.00 $10.50 $7.50
California
(26 or more employees) $10.50 $11.00
(25 or fewer employees) $10.00 $10.50
Colorado $9.30 $6.28 $10.20 $7.18
Florida $8.10 $5.08 $8.25 $5.23
Hawaii $9.25 $8.50 $10.10 $9.35
Maine $9.00 $5.00 $10.00 $5.00
Michigan $8.90 $3.38 $9.25 $3.52
Minnesota
(Large employer (annual gross revenue of $500,000 or more)) $9.50 $9.65
(Small employer (annual gross revenue of less than $500,000)) $7.75 $7.87
Missouri $7.70 $3.85 $7.85 $3.925
Montana $8.15 $8.30
New Jersey $8.44 $6.31 $8.60 $6.47
New York
(NYC – more than 10 employees) $11.00 $7.50* $13.00 $8.70
(NYC – 10 or fewer employees) $10.50 $7.50 $12.00 $8.00
(Nassau, Suffolk, & Westchester Counties) $10.00 $7.50 $11.00 $7.50
(The rest of the State) $9.70 $7.50 $10.40 $7.50
Ohio $8.15 $4.08 $8.30 $4.15
Rhode Island $9.60 $3.89 $10.10 $3.89
South Dakota $8.65 $4.325 $8.85 $4.425
Vermont $10.00 $5.00 $10.50 $5.25
Washington $11.00 $11.50

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.