Religion in the Workplace

Employees do not leave their religious beliefs behind when they go to work. But, those beliefs seldom matter to employers or fellow employees. Where religious beliefs affect dress or appearance, there may be an impact in the workplace. There may be conflicts with the employer's practices and policies or with other employees. Religious beliefs may also have an effect when employees practice their religious beliefs at work. Both Title VII and the California Fair Employment and Housing Act forbid discrimination based on religion, and require employers to accommodate their employees' religious beliefs.

This is what happened in one workplace. A female former software developer sued the defendant temporary employment agency claiming religion discrimination in violation of Title VII. The plaintiff alleged that the defendant denied her promotions because she was not a member of a religious group that the other employees belong to. The plaintiff further alleged that in a period of four years there were five management positions for which she was qualified and that four of those positions went to members of that religious affiliation. The defendant denied the allegations and claimed that the fellowship was not a religion, but a philosophical group and that the plaintiff was not a good choice to boost morale within the software group. The jury awarded the employee $647,174 in emotional distress damages, and $5,900,000 in punitive damages. Noyes v. Kelly Services, Case No. 2:02-cv-02685 (E.D. Cal. April 2008). Read the Ninth Circuit Court of Appeals decision that ordered the case to go to trial here.

Another case illustrates the circumstances under which an employer may limit an employee's practice of her religion at work. A student intern at at the Department of Children and Family Services handed out religious literature during her internship hours at the Department and shared her religious views with colleagues. After becoming concerned that the employee would not be able to separate her religious beliefs about homosexuality and abortion from her work with clients, the Department had the University to place plaintiff in a different internship at another agency. The jury agreed that the employer was right to have the intern placed in a different agency. Escobar v. Los Angeles County Department of Children and Family Services, Case No. CV060917 (C.D. Cal. April 10, 2007).

For further information on employer obligations with respect to religion, consult these sources:

1. Questions and Answers: Religious Discrimination in the Workplace (EEOC)
2. Best Practices for Eradicating Religious Discrimination in the Workplace (EEOC)
3. "Religion" portion of Case Analysis Manual (DFEH)

FMLA Leave for Military Families

At the beginning of the year, the Family and Medical Leave Act was amended to to permit an eligible employee who is a "spouse, son, daughter, parent, or next of kin" to take up to 26 workweeks of leave to care for a "member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness." This provision was made effective immediately.

As with other types of FMLA leave, an employee is eligible for leave only if he or she as 12 months of service, and 1250 hours of actual work in the last 12 months. Employers may require certification of the member's health condition.

Another part of the amendment requires employers to grant leave because of any "qualifying exigency" arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation. This provision will not take effect until the Secretary of Labor promulgates regulations identifying what constitutes a qualifying exigency.

The Department of Labor has included a discussion of planned regulations to implement the military family provisions in the proposed overhaul to the existing FMLA regulations published in the Federal Register on February 11, 2008. You can read the entire proposal here. Comments were due by April 11, 2008. Final regulations implementing the military family leave provisions can be expected by the end of the year.

Until the regulations are in effect, the Department of Labor "encourages" employers to provide leave for exigencies created by a call up. Here are some of the comments from the deliberations leading to the enactment of the amendment, which may provide guidance about the circumstances that would qualify for leave:

"The wife of a recently deployed military servicemember could use the Family and Medical Leave Act to arrange for childcare. The husband of a servicemember could use the Family Medical Leave Act to attend predeployment briefings and family support sessions. The parents of a deployed servicemember could take Family Medical Leave Act time to see their raised child off or welcome them back home." [Rep. Jason Altmire]

"For every soldier who is deployed overseas, there is a family back home faced with new and challenging hardships. The toll extends beyond emotional stress. From raising a child to managing household finances to day-to-day events, families have to find the time and resources to deal with the absence of a loved one." [Rep. Tom Udall]

"Under this amendment family members can use the leave to take care of issues like making legal and financial arrangements and making child care arrangements or other family obligations
that arise and double when family members are on active duty deployments. ... These deployments and extended tours are not easy on families, and two-parent households can suddenly become a single-parent household and one parent is left alone to deal with paying the bills, going to the bank, picking up the kids from school, watching the kids, providing emotional support to the rest of the family. You have got to deal with these predeployment preparations." [Rep. George Miller]

Retaliation Claims Lurk in Meritless Discrimination Lawsuits

Two recent verdicts from California Superior Court juries illustrate the risk of retaliation liability that arises in the wake of employee complaints about mistreatment. It is not uncommon for employers to prove that a discrimination, harassment or other employment claim lacks merit, only to be held liable because the complainant suffered adverse employment consequences after complaining. An employee who files a complaint in good faith (even if it turns out to be unfounded) is protected from retaliation.



Retaliation Verdicts

In one case, a state correctional officer claimed to have been discriminated against and harassed because of her sexual orientation and disability. She also alleged that her supervisors retaliated against her for complaining about their actions. The jury decided that the supervisors had not engaged in unlawful harassment or discrimination, but awarded the officer $800,000 on the retaliation claim, all for non-economic, that is, emotional distress damages. The court also awarded attorney fees of $442,400 and costs of $60,123. Mootz v. Department of Corrections and Rehabilitation, Case No. 05AS04214 (Sacramento Superior Court 3/27/2008).


In the second case, two sales persons alleged that they had complained to their employer about various wage and hour practices, and were terminated as a result. They recovered a combined verdict of $840,400. Boren v. Global Medical Mobile Diagnostics Inc., Case No. BC356430 (L.A. Superior Court 5/22/2008).



The Law

All employment laws prohibit employers from taking adverse employment action against employees for engaging in protected activity. Protected activity includes complaining about or opposing practices forbidden by the statutes and participating in investigations of prohibited conduct. Adverse employment action includes termination, failure to promote, punitive transfers and other actions that have a material impact on the terms and conditions of employment.



To establish a prima facie case, the employee need only establish that he or she engaged in protected activity and suffered adverse employment action, and that there was a link between the two. To establish the link, it is enough to show that the adverse action followed closely on the heels of the protected activity. Such a showing then places the burden on the employer to establish that it had a legitimate reason for the adverse employment action. If the employer provides evidence of a legitimate reason, the burden shifts to the employee to prove that the given reason was a pretext for retaliation.

A successful plaintiff in a retaliation case may recover any economic loss, damages for the emotional distress from experiencing retaliation, punitive damages (if the retaliation was egregious), and, under most employment statutes, attorneys fees.

What Employers Should Do

To navigate between the Scylla of a large damages award and the Charybdis of not taking action against a poor-performing employee who happens to have complained, employers must adopt good documentation practices. Such practices will prevent corrective measures from boomeranging and exposing the employer to liability.

1. Make sure that each employee's personnel file includes a job description acknowledged by the employee. This will avoid disagreement over job duties if an issue arises about an employee's ability to continue working.

2. Develop a set of written performance expectations for each employee. This will avoid an employee's argument after being subjected to adverse employment action that he or she never understood what was expected.

3. Insist on honest annual performance evaluations. This will avoid an employee's argument that nobody ever told him or her that there were performance issues.

4. Document every communication with an employee about performance or misconduct, no matter how minor. This will avoid a possible argument that it never happened.

Noncompetes Invalid In California

The California Supreme Court has conclusively ruled that non competition agreements with employees are invalid in California. The August 7, 2008 decision in Edwards v. Arthur Andersen LLP put to rest the notion that there might be a narrow restraint exception to the bar contained in Business and Professions Code section 16600, as suggested by the Ninth Circuit in Campbell v. Trustees of Leland Stanford Jr. Univ, 817 F.2d 299 (9th Cir. 1987).

Section 16600 provides: "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." Other sections provide statutory exceptions for agreements in the sale or dissolution of corporations (16601), partnerships (16602) and limited liability corporations (16602.5).

Some have argued that section 16600 is the statutory embodiment of common law, and must include the common law's rule of reasonableness. (For an exposition on the rule of reason, see the New York Court of Appeals decision in BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999).) Such arguments led the Ninth Circuit to conclude that California courts would recognize an exception to section 16600, as explained in the Campbell case and more recently in IBM v. Bajorek, 191 F. 3d1033 (9th Cir. 1999). The Supreme Court firmly rejected that notion: "We reject Andersen’s contention that we should adopt a narrow-restraint exception to section 16600 and leave it to the Legislature, if it chooses, either to relax the statutory restrictions or adopt additional exceptions to the prohibition-against-restraint rule under section 16600."

The agreement at issue in the Edwards case barred an Arthur Andersen accountant from performing accounting services for any Arthur Andersen client on whose account he had worked for 18 months after termination of employment, and from soliciting work from any Arthur Andersen client for a year. According to the Supreme Court, that restricted Edwards's ability to practice his accounting profession, and was, therefore, invalid.

The Supreme Court expressly declined to address a possible exception to section 16600 for agreements designed to protect an employer's trade secrets. A 1965 Supreme Court decision said that non competition agreements were invalid, "unless they are necessary to protect the employer's trade secrets." Muggill v. Reuben H. Donnelley Corp., 62 Cal.2d 239, 242 (1965). Court of Appeal decisions have upheld restraints on employees narrowly drawn to protect trade secrets. See, e.g., Metro Traffic Control, Inc. v. Shadow Traffic Network, 22 Cal. App. 4th 853 (1994). It remains to be seen whether those decisions will survive the Edwards decision.

Prison for Immigration Violations

In The News

Since the failure of immigration reform in 2007, U.S. Customs and Immigration Enforcement (ICE) has stepped up its efforts to bring employers into compliance with existing immigration and citizenship rules. Employers must take these efforts seriously, because failure to comply with the rules can lead to prison time. As described by Homeland Security Secretary Michael Chertoff in the Department's online Leadership Journal, criminal arrests went from 165 in 2004 to 863 in 2007. Through May 31, 2008, there had already been 875 arrests.

Recently, an ICE investigation in Nevada led to guilty pleas by a McDonald's franchisee and two of its executives. According to a July 16 Justice Department press release, the franchisee will pay a $1 million fine and serve a year of probation. The franchisee's former vice president faces up to five years in prison and a $250,000 fine. The controller has been charged with a misdemeanor. The investigation of the 11 McDonald's Restaurants that the franchisee operated in the Reno area turned up 58 undocumented aliens working illegally. The plea agreement details how the franchisee's management employed individuals they knew were in the country illegally, including two restaurant managers, by furnishing them with names and Social Security numbers belonging to other individuals.

What Employers Must Do

The immigration laws require employers to verify identity and authorization to work in the United States for every employee they hire. Employers do this by collecting information from new employees on the I-9 Form and examining original documents presented by the employees from those listed on the form as acceptable for verification. The employer must accept the document or documents proffered by the employee so long as they are on the list, and appear to be genuine.

Employers may not collect any information about immigration status until the employee begins employment, and must verify identity and authorization to work within three business days of the commencement of employment. It is illegal to discriminate against an applicant or employee based on national origin or citizenship status, unless the individual is not authorized to work in the United States. For further information about the I-9 process, review the US CIS Handbook for Employers.

Employers must be careful to follow the verification process to the letter. Although undocumented workers do not have all the rights of legal employees (see, for example, Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), holding that the NLRB cannot award back pay to undocumented workers), they may sue for unpaid wages, unauthorized discrimination, and are entitled to workers compensation benefits. See Reyes v. Van Elk Ltd., 56 Cal.Rptr.3d 68 (Ct. App. 2007); Farmers Bros. Coffee v. WCAB, 35 Cal.Rptr. 3d 23 (Ct. App. 2005).