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The "Ministerial Exception"
Posted by: Edward Macey
January 12, 2012
Topic: Comments

In 2004, a Michigan teacher was fired by her employer after asserting her rights under anti-discrimination laws and brought a straight-forward discrimination lawsuit. However, the United States Supreme Court recently ruled that she could not proceed with her claim. Why did state and federal anti-discrimination laws not apply to this teacher? The Supreme Court ruled that she was a "minister" in the church where she taught and that therefore, anti-discrimination laws do not apply to her.

In Hosanna-Tabor v. EEOC, the Supreme Court for the first time formally recognized the so-called "ministerial exception." The Court was confronted with the competing interests of the First Amendment's guarantee of religious freedom and anti-discrimination laws.

In the case, Cheryl Perich was a teacher at Hosanna Tabor Evangelical Lutheran Church in Redford. After starting as a "lay" teacher, she completed her colloquy and thus became a "called teacher" and a commissioned minister. Ms. Perich served her church through teaching. She focused on religious teachings for only 45-minutes per day, and other "lay" teachers did the exact same job as her.

Nonetheless, a unanimous Supreme Court determined that the First Amendment made anti-discrimination laws unenforceable in this setting. "The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs."

The Court did not fully determine the reach of the ministerial exception. It is obvious that the head of a church would be covered and that a janitor with no ministerial role would not. This opinion gives a great deal of discretion to religious organizations to designate their employees as ministers, but the court was careful to note that mere titles are not sufficient in and of themselves. In this case, it was important that Ms. Perich's "job duties reflected a role in conveying the Church's message and carrying out its mission." She regularly led her class in prayer, religious instruction, and occasionally led school-wide chapel service.

The full reach of Hosanna-Tabor will not be immediately known, but it is important for employees of religious organizations to understand that they may not have the same employment rights as other employees. While anti-discrimination laws are certainly a good thing, the Supreme Court determined that they do not trump the First Amendment.

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White House Announces New Department of Labor Regulations for Home Care Workers.
Posted by: David Blanchard
December 15, 2011
Topic: Comments

A New York Times article reported today suggests that revisions to overtime and other regulations under the Fair Labor Standards Act may be in the works. A decades old exemption to the FLSA designed to protect nannies, maids, and babysitters will likely be revised or eliminated in order to extend FLSA protection for home health care workers. Home health care work is one of the fastest growing sectors in Michigan and across the nation. In central Michigan especially thousands of people work in the industry, where demographics lead to long drive times to and from home-bound consumers. One possibility for the new regulations would be to require compensation for certain drive times, and overtime pay where applicable. The change will make a significant impact for the income in thousands of households.

Today's article quotes Mid-Michigan Congressman Tim Wahlberg, who claims that despite a lift it would bring for many home care workers in his district, he opposes Fair Labor Standards coverage for home care workers, based on the burden for home care employers, consumers, or tax dollars. The proposed changes, whatever form they take, will have to go through an extensive "notice and comment" period before their adoption. Hopefully a balance can be struck that addresses the business concerns while still advancing the concept of fair pay for home care workers.

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Sexual Harrassment: Perception versus Reality
Posted by: Staff NachtLaw
December 12, 2011
Topic: Comments

An opinion piece on CNN.com hits on a sensitive nerve. The charge is that people understand and respond to accusations of marital infidelity in a way that is very different from allegations of sexual harassment. The author, Barbara J. Risman writes that men respond to infidelity and assign blame and responsibility because they see it as a problem of one's own choosing. When it comes to workplace harassment however, the author concludes that these allegations stir up other feelings among men: fear for how the employment laws can be used, resentment, or assumptions that sexual harassment is just a trap for male bosses who "say the wrong thing" in the elevator.

From my own experience litigating sex discrimination and harassment for years, I have to agree there is a ring of truth to these comments. SOME men have these attitudes, in SOME workplaces. It is a stretch to say all men in the workplace feel this way but there is certainly an element of it. The strange thing is that these attitudes persist in some corporate cultures even though the types of allegations generally prosecuted under the sex discrimination laws are very serious and not just a matter of the boss "saying the wrong thing."

Remember, victims of sexual harassment risk everything by coming forward: their job, their reputation. Victims usually only come forward when there are no other options left. Most harassment cases that we see turn into lawsuits deal with inappropriate touching, sexual propositions, or even sending pornographic pictures to the victim. This is what we mean when we say "sexual harassment" at the Firm. Public attitudes that treat workplace harassment as "accidental" rather than intentional victimization undermine our workplace discrimination laws and hide the real evil that is out there in too many workplaces.

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Are professors who commit fraudsubject to criminal liability?
Posted by: David Nacht
December 05, 2011
Topic: Comments

In a current case reported in Medscape Medical news, see http://www.medscape.com/viewarticle/754423?src=ptalk, Janis C. Kelly reports about a Nevada researcher, July Mikovits, Ph.D., who is fielding criminal as well as civil claims stemming from missing research notebooks concerning chronic fatigue syndrome. Dr. Mikovits, according to the report, "was charged with two felonies: possession of stolen property and unlawful taking of computer data, equipment, supplies, or other computer-related property". She was found at her California home and she spent some nights in jail before any finding of guilt has occurred.

As is often the case, the allegations of fraud in this case first surfaced when other researchers were unable to replicate findings.

There have also been news reports of a criminal investigation in Massachusetts concerning a Harvard professor accused of fraud.

While research fraud in science has been the subject of Congressional interest for a couple for a couple of decades, prosecutors have not historically pursued criminal claims. It appears we are on the cusp of a change in that attitude.

In the private sector, we are seeing the FBI investigate theft of trade secrets theft cases much more routinely, particularly, when American companies are losing material to foreign companies. Now that researchers often have access to valuable intellectual property which are easily portable, that is one motivation for universities, non-profits and companies to bring in the authorities to avoid the loss of data. 

But there is also a growing concern within the academic and research communities about the extent of fraud and the potential for the loss of confidence in Congress and therefore a threat to funding for academic research. So we can expect to start seeing more routine referrals from vice presidents of research and the general counsel's office of universities to law enforcement authorities, as well as the now-routine reports to NIH and other funding agencies.

Professors or other researchers facing claims of intellectual dishonesty must be vigilant in defending themselves. Do not try to defend yourself in an internal inquiry within the university or research institute. Your statements may be used against you in a later criminal proceeding.

You should retain a law firm with experience in employment law; knowledge of federal research funding practices (if your lawyer doesn't know what an R-01 is, get a different lawyer!); academic/research cultural norms; and criminal defense of fraud cases. Our firm is one of the few nation-wide, in which the same lawyers have the expertise to handle all aspects of such a claim.

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US Supreme Court Deciding if Pharmaceutical Sales Representatives Entitled to Overtime Pay
Posted by: Edward Macey
December 01, 2011
Topic: Comments

The United States Supreme Court agreed this week to decide whether pharmaceutical sales representatives are entitled to overtime pay. Pharmaceutical sales representatives regularly work more than 40 hours a week but are not generally paid overtime for their additional work. In a series of lawsuits across the country, these hard-working employees are challenging this practice and arguing that they are entitled to overtime. To date, courts have come down on both sides of the issue. A federal appeals court in New York ruled that Novartis sales representatives are entitled to overtime pay. A federal appeals court in California ruled that Glaxo SmithKline sales representatives are not. The Supreme Court will review the California case and hopefully decide whether these employees are entitled to overtime or whether, as the pharmaceutical companies claim, the "outside sales exemption" to the Fair Labor Standards Act applies, meaning sales representatives are not entitled to overtime pay. The United States Department of Labor argues that the exemption does not apply and that the sales representatives are entitled to overtime pay. The Supreme Court should issue a decision next spring and that decision will have an enormous impact on thousands of employees and the entire operation of the pharmaceutical industry.

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President Obama Signs Jobs Bill: VOW to Hire Heroes Act Creates Incentives for Employers to Hire Michigan Veterans
Posted by: Staff NachtLaw
November 22, 2011
Topic: Comments

Yesterday, President Obama signed the VOW to Hire Heroes Act, a portion of his jobs bill, into law. The act will provide tax incentives for companies that hire unemployed veterans and veterans with service-connected disabilities.

The act is coupled with the introduction of more resources to aid veterans in their search for jobs, and many companies have rolled out their own veteran-specific hiring resources and initiatives in light of the act.

According to the Department of Veteran's Affairs, there are about 725,000 veterans living in the state of Michigan. With Michigan's unemployment rates being one of the highest in the nation, the VOW to Hire Heroes Act will give many of our unemployed Michigan veterans an opportunity to get back to work. 

 Read the signed bill here.  

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Job Discrimination Claims Reaching All-Time High?
Posted by: David Nacht
November 18, 2011
Topic: Comments

            A recent news story indicated that claims of job discrimination are way up.

The interaction between a bad economy and job discrimination claims is complicated. On the one hand, when an employer has a genuine reason to reduce its operations and a facility is shut down, then any particular person who works in that facility cannot claim under most circumstances that they are a victim of discrimination. But, when senior management of any large employer sends a directive throughout the organization to Human Resources personnel and to junior managers that a reduction in the head count is required, the discretion that lower-level managers may use can be discriminatory or retaliatory. Unscrupulous managers take advantage of the new pressure to reduce head count by selecting those employees who are perceived to be trouble-makers or have poor absenteeism. But the trouble may be caused by someone who has a lawful right to cause trouble. Nobody wants to hear somebody complain. But, a victim of discrimination due to race or gender or disability has a lawfully protected right to complain. Furthermore, an employer has an obligation under Title VII of the Civil Rights Act of 1964 and under the laws of many states, including Michigan, not to retaliate against a person who brings such a claim in good faith. Furthermore, if a person is absent because s/he has a serious health condition or suffers from a disability, then the Family and Medical Leave Act (FMLA) and/or the Americans with Disabilities Act (ADA) prevent, in many cases, the absenteeism from being used as a basis to select a person for termination.

The truth is, in this area of the law, as in so many, that the devil is in the details. If you are worried that you are being singled out as a result of unlawful discrimination or retaliation, then you owe it to yourself to consult with a knowledgeable attorney to find out what your rights are. We all hope that the economy improves and that employers are clamoring for workers, but in good times and bad I am proud to practice at a firm that stands vigilant for the rights of employees.  

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Nacht Law Files Civil Rights Action to Protect Rights of Michigan Veterans
Posted by: Staff NachtLaw
November 12, 2011
Topic: Nacht Law in the News

Michigan law provides a right for Michigan Veterans to operate as venders for their own benefit throughout the State, unrestricted by local licensing or permit schemes.   A Federal Court case filed this week alleges the local government of Mackinac Island is infringing that right by adopting a new ordinance in September banning Veteran peddlers as ?unfair competition? to local business and an alleged hazard on its horse and bicycle streets popular with summer tourists. [Read the MLive coverage]

The lawsuit, filed by Benjamin Horn ? an Iraq war veteran - alleges that the Mackinac Island government intentionally cut his peddling business out of the new ordinance after he protested previous attempts to stop his business even though it was explicitly allowed under state law and local ordinance, and even though the Island still permits the same sales through a licensing scheme for non-profits.

Horn's case "shines a spotlight on the protectionist and paternalistic attitudes of Mackinac Island government and its history of using government powers to pick winners and losers in local business" says Horn's attorney, David Blanchard of the Michigan employment and civil rights law firm Nacht, Roumel, Salvatore, Blanchard and Walker.  Mackinac Island settled a long running court battle this year over its attempt to restrict ferry service to the Island by denying permits for one of the only two major ferry operators.  Horn's attorney says this case will turn on interpretation of the State law originally adopted in 1921 to provide a special benefit for Michigan veterans to support themselves by peddling or hawking their goods and wares.  Horn, who has been a life-long resident of the Island, returned from duty in Iraq and Kuwait with an honorable discharge in 2005.

After being told to shut down in 2010, the lawsuit says Horn re-opened his peddling business in 2011 selling water and basic goods from his bicycle in and around the Island.  Next year, Horn worries that officials will use the new ordinance to shut down his business.  The lawsuit asks the federal judge to rule the local ordinance an invalid attempt to deprive him of business rights in violation of state law and in retaliation for exercising his constitutional rights.  The Island's lawyers have not yet responded.

The Complaint filed with the Federal District Court for the Western District of Michigan:

For more information on this case or on veterans rights issues in Michigan, interested parties should contact the Nacht Law Firm at (734) 663-7550.

Read the filed complaint and summons linked below. 

Attachments:
filedsummonsandcomplaint.pdf

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Title VII Protection for Workers of Racial or Religious Discrimination
Posted by: Jennifer Salvatore
November 04, 2011
Topic: Articles

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Nacht Law Welcomes Associate Attorneys Elizabeth Hinson and Carrie Waggoner to Michigan Bar
Posted by: Staff NachtLaw
November 04, 2011
Topic: Comments

Nacht Law is pleased to announce that first-year associates Elizabeth K. Hinson and Carrie Waggoner both received passing grades and were sworn into the Michigan Bar on November 4, 2011. 

Ms. Hinson and Ms. Waggoner's full-length biographies can be found at our website. 

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