FLSA and Weather Issues; The Supreme Court Religion Discrimination Decision

By: Lawrence P. Postol, Vice President For Legislative AffairsLpostol@seyfarth.comFLSA and Weather Issues: When The Office Is Closed, Which Workers Do You Have To PayIn the wake of Houstons recent flooding, countless businesses closed their doors, and many individuals are coping with homes in disrepair. This is hardly the first time mother nature has affected business. Snow, hurricanes and floods happen all too often, and business cannot open, or the employees cannot get to work. So what does the Fair Labor Standards Act require as far as paying workers?Rules for Exempt EmployeesClosed For Business. An office closure may not affect the salary of an exempt employee. If the office is closed, employers may not make deductions from an exempt employees salary. However, employers may require that exempt employees take vacation or paid time off (PTO) to make up that time. If an employee does not have vacation or PTO days available, the employer can allow her to take the PTO or vacation day anyway and make it up at a later time.

Open For Business. If the office is open, and the exempt employee decides to stay home, employers may deduct that days wages from his pay without violating the salary-basis. Full day absence deductions are allowed, but partial day absences and deductions are NOT allowed. If the employee works any portion of the day, then the employer must pay him as though he worked a full day. This includes any work performed remotely.

Rules for Non-Exempt EmployeesWhether the office is open or closed, employers are only required to pay non-exempt employees for hours worked. However, inclement weather often results in traffic delays. If the employee works during the delay (by taking phone calls or answering emails, for example), then she must be compensated for time worked. But not all situations are as clear-cut. Consider, for example, an employee who is stranded in an employers vehicle and instructed to safeguard the vehicle. Or consider an employee who is instructed to transport or retrieve employees or company goods and gets stranded during the storm. In each of these situations, it is likely that the DOL or a court would later find that all of the time while the employee was stranded was compensable time. The cost of defending the claim and then paying the amount owed would exceed the cost of simply paying the amount in the first place. In these special circumstances, it makes legal and practical sense to pay employees for this time.Employees Who Volunteer For Clean-Up Or Recovery WorkIt is an unfortunate truth that businesses are sometimes reduced to wreckage during inclement weather. Some are fortunate enough to also experience the goodwill of employees ready to help the company rebuild. Exempt employees who volunteer to help will not be entitled to any additional compensation beyond their salary. But remember that too much time spent on manual tasks or other tasks unrelated to their regular job duties could invalidate their exempt status and allow them to collect overtime compensation.Non-exempt employees must be paid for all time worked, even if they offer to work for free, with one exception. Employers may accept free work from employees of government or non-profit agencies who volunteer out of public-spiritedness to perform work that is not at all similar to their regular duties.Impact of the Supreme Courts Ruling in EEOC v. Abercrombie & Fitch On June 1, 2015, in a 8-1 ruling, the U.S. Supreme Court sided with the EEOC in the religious discrimination case of EEOC v. Abercrombie & Fitch Stores, Inc. The Court recognized that Title VII prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that could be accommodated without undue hardship. The Court then framed the question presented as whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation. The Supreme Court answered No. The Court rejected Abercrombies argument that an applicant cannot show disparate treatment without first showing that the employer had actual knowledge of the applicants need for accommodation. Instead, the Court held that an applicant need only show that his need for an accommodation was a motivating factor in the employers decision. The Court held that the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicants religious practice, confirmed or otherwise, a factor in employment decisions. Put another way - not ask, dont tell, does not work for religious accommodations. The FactsTeenager Samantha Elauf, a Muslim who wore a headscarf for religious reasons, applied for a sales floor position in an Abercrombie store. At the job interview, to which she wore the headscarf, Ms. Elauf said nothing about the fact that she was Muslim. In the interview, she did not bring up the headscarf, or say that she wore it for religious reasons, that she felt a religious obligation to do so, or that she would need an accommodation from the retailers Look Policy. But her interviewer assumed that Ms. Elauf was Muslim, and wore the head-covering for religious reasons and that influenced the companys decision not to hire her.The Courts BelowThe district court granted summary judgment for the EEOC but the Tenth Circuit reversed and granted summary judgment to Abercrombie. The Tenth Circuit held that the burden is on the applicant to advise the employer of a religious practice that conflicts with a job requirement, because the applicant is uniquely qualified to know those personal religious beliefs and whether an accommodation is necessary. The appeals court rejected the EEOCs argument that the employer has a duty to attempt reasonable accommodation when the employer has notice of the conflict from any source.The Supreme Courts AnalysisIn reaching its holding that an applicant need only show that his need for accommodation was a motivating factor in the employers decision, the Court relied primarily on an analysis of Title VIIs text.The Court reasoned that Title VIIs disparate-treatment provision prohibits an employer from using an applicants religious practice as a motivating factor in failing to hire the applicant. The Court noted that Title VII does not impose a knowledge requirement, and declined to add words to the law. Instead, the Court reasoned that the statutes intentional discrimination provision prohibits certain motives, regardless of the employers knowledge.In distinguishing between motive and knowledge, the Court held that an employer who had actual knowledge of the applicants need for a religious accommodation, but did not have that as a motive for refusing to hire the applicant, would not violate Title VII. By contrast, an employer whose motive in refusing to hire is the desire to avoid an accommodation even if based on no more than an unsubstantiated suspicion that accommodation would be needed may violate Title VII.The Court acknowledged that if the applicant requested an accommodation, or the employer was certain that the applicant followed a practice that would require accommodation, it may be easier to infer motive, but held that neither is required for liability.But the Court buried an important caveat in a footnote, declining to reach the question of whether the motive requirement can be met without a showing that the employer at least suspects that the practice in question is a religious practice. The Court ducked the question because it was undisputed here that Abercrombie at least suspected that Ms. Elauf wore the hijab for religious reasons.Sidestepping Abercrombies concerns that without an actual knowledge requirement, employers will be forced to ask about religion, or engage in stereotyping, the Court offered an example that highlights the practical pitfalls for employers. The Court posited an employer who thinks, but does not know for sure, that an applicant may be an orthodox Jew who will observe the Sabbath and avoid Saturday work. In that case, the Court held, if the applicant actually required the accommodation, and the employers desire to avoid it was a motivating factor in not hiring the employee, the employer would violate Title VII.The Court rejected Abercrombies defense that its Look policy was a neutral policy that could not be discriminatory, emphasizing that Title VII demands more than mere neutrality with regard to religious practices. The Court also rejected Abercrombies position that a claim based on failure to accommodate an applicants religious practice must be raised as a disparate-impact, rather than a disparate-treatment, claim.

Concurrence & Dissent Justice Alito concurred primarily to opine that he would hold that an employer cannot be held liable for taking an adverse action because of an employees religious practice unless the employer knows that the employee engages in the practice for a religious reason the question the majority sidestepped. Only Justice Thomas dissented, reasoning that Mere application of a neutral policy cannot constitute intentional discrimination, and therefore that the EEOC could not advance a disparate-treatment claim in this case.What Should Employers Do Now?There is still a lot of wisdom in the longstanding advice to employers to avoid asking applicants about religion, or making assumptions based on stereotypes. But in light of this decision, an employer who has any reason to believe, or even suspect, that accommodation may be necessaryfrom any sourcewill need to consider engaging in an interactive process with the applicant.Depending on the circumstances, that process may entail explaining to the applicant the relevant work rule, inquiring as to whether the applicant could comply with the rule or would require an accommodation, and analyzing whether any required accommodation is reasonable or would impose an undue hardship.Employers should consult counsel who specializes in this area for guidance on how to meet the obligations imposed by the Courts ruling while minimizing the risk of other claims, as well as ensuring compliance with state or local religious discrimination laws, which can vary from federal law.Finally, employers should update their internal hiring practices training to ensure that hiring managers and interviewers are aware of best practices following the Supreme Courts ruling. 2015 by Lawrence PostolMr. Postol is the Vice President for Legislative Affairs on the NOVA SHRM Board, and a partner in the Washington, D.C. office of Seyfarth Shaw LLP. If you have any questions about the information in this article, you may e-mail Mr. Postol at Lpostol@seyfarth.com or call him at 202-828-5385.Disclaimer: This newsletter does not provide legal or other professional services. This newsletter is made available by the lawyer publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this newsletter you understand that there is no attorney-client relationship between you and the newsletter publisher. The newsletter should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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