Employment/HR blogosphere update for week of March 7, 2005

Hold on to your hats, we’re off again. I’m home alone with my laptop. Anything can happen as we tour the blogosphere . . .

All Deliberate Speed gets us off and running with a church-state-harassment-discharge-retaliation case (should be something there for everyone!)

The post is: “Ninth Circuit Denies En Banc Hearing in Elvig v. Calvin Presbyterian”

Donald the law clerk takes on his elder, Professor emeritus Ross Runkel, whose post on the same case is here: “Sexual harassment and the church”

The case involves alleged harassment of a female associate pastor by a male pastor. Donald and Ross differ on the proper scope of the First-Amendment-driven judicially-created “ministerial exception” to Title VII.

Maybe it seems a bit arcane and removed from your everyday workplace (or those of your clients). Just the type of thing you would expect a law clerk and law professor to argue about.

But I submit we would all do well to pay attention to religious-rights issues in all their many dimensions. Right or wrong, the desire of litigants to pursue such issues shows no sign of abating.

I doubt the Supreme Court’s decision on the 10 Commandments case argued this week will do anything to put these issues to rest or clarify the law.

Speaking of which, I love this proposed new version of the Lemon Test (the test the Supreme Court has applied to church-state issues since Lemon v. Kurtzman (1971):

A perfect judicial activist solution and a new test could be easily applied by the Supremes. The Ten Commandments can stay in government buildings provided that the upwards of 400,000 churches in the United States put up a copy of the Bill of Rights behind the pulpit for all worshippers to either notice or turn away from. Who could possibly object to the Bill of Rights as an adjunct to the Ten Commandments? They both consist of Ten parts, and for the Bill of Rights there’s no dispute over a version or the ordering between Protestants, Catholics and Jews.

After all, in the United States, religion derives it’s protection from the Bill of Rights. For those churches who refuse to comply, an easy to apply remedy would be for them to lose their tax exemption.

Call it the Ten for Ten test. Controversy solved.

Enough on religion already? Tough. . . . I’m going wherever the blogosphere’s taking me on this ride tonight. You’re stuck with me.

And . . . eek! . . . We’re headed for another religious confrontation in the workplace! Dear God! It’s more Christian-on-Christian harassment! This time religious harassment! Heaven help us!

Here’s a fine case summary and analysis from The Greater Valley Forge HR Law Link: “Same-Religion Harassment – Does it Violate Title VII?”

“A district court in the Tenth Circuit recently addressed, and the Court of Appeals declined to address, a complicated issue that rarely makes an appearance in case law: Can someone be “harassed” on the basis of religion by a member of that individual’s own religion?”

The trial court rejected allegations of religious harassment, finding that no religious harassment had taken place because both harasser and harassee were Christian. On appeal, the Tenth Circuit Court of Appeals dodged the issue, affirming on other grounds — that the conduct was too short-lived to constitute harassment, and that the complaint of harassment was not timely.

In a concurring and dissenting opinion, Judge William J. Holloway, Jr., directly addressed the same-religion harassment issue, noting that the court in another case had said: “if a Christian employer’s favorable treatment of a Christian employee depends on the nature or extent of the employee’s perceived commitment to the employer’s religious views or standards, an actionable religious animus exists.”

Clearly intra-religious disputes can be at least as severe as inter-religious disputes (or is it the other way?)

This just in: Fired Bloggers and blogosphere critical mass joining forces to create new employment oportunities for creative, nutty Bloggers!

Fired Blogger Jeremy C. Wright of Ensight is running a blog called “Blogger Jobs; Jobs Posted By Bloggers or Jobs For Bloggers”

Couple interesting Blogger gigs showed up this week:

“Humour Blogger Wanted – InsideBlogging”

“Blog About Dukes of Hazard: 100K/year” See also HireDiversity.com: “Dukes of Hazzard Fans Vie for Dream Job,” by Amy Johannes

The labor market’s changing before our very blogging eyes.

Labor Law Blog continues to provide a nuanced analysis of NLRB decisions. Among my recent favorites: “Analyzing Ambiguous Statements”

Essentially this is about about who should bear the risk of ambiguous statements that have both an unlawful anti-union coercive interpretation and a more innocent lawful interpretation.

Statement at issue in the reported case: “your job got fucked up at the bargaining table” (said to an employee terminated because he misrepresented that he had performed some work).

Innocent interpretation? According to dissenting NLRB member Schaumber, merely that the employee lost his job for committing an offense worthy of discharge under the collective bargaining agreement.

The majority found the statement unlawful, applying this rule: “[t]he test of whether a statement is unlawful is whether the words could reasonably be construed as coercive, whether or not that is the only reasonable construction.”

The author’s conclusion:

[T]he Board majority wisely employed the most pro-General Counsel [i.e., pro-employee] of these three alternatives. Where multiple reasonable interpretations of an ambiguous statement exist, we cannot be sure that employees will adopt a noncoercive interpretation over a coercive interpretation. . . .

I emphasize that the remedy for violating Section 8(a)(1) is a cease-and-desist order. In such an order, the Board directs the guilty employer to stop making ambiguous statements that a reasonable employee could interpret as coercive. In other words, the Board tells the employer to be more precise when making its statements: “If you intend to communicate a noncoercive message, do a better job of it.”

That may work where are the only remedy truly is a cease-and-desist order. I suspect, however, that sometimes more is at stake. For example, the validity of an election or even whether a strike is an economic strike or an unfair labor practice strike– both matters of great consequence.

The author suggests there are three possible rules. I prefer this one: “An ambiguous statement violates Section 8(a)(1) if its most reasonable interpretation is coercive (among competing reasonable interpretations).”

This gives everyone the benefit of the doubt — that employers probably don’t intend to violate the law and that employees probably are smart enough to figure out the most reasonable interpretation of an ambiguous statement, or better yet, to ask questions.

From Benefitsblog, here’s one Michael needs to read right away (since he’s this Blawg’s psychological testing expert):

“Seventh Circuit: No Fourth Amendment Claim For Psychological Testing”

Did a psych test that took two hours and inquired into details of a government employee’s personal life constitute an unreasonable search in violation of her Fourth Amendment right to be free from unreasonable searches and seizures?

No, says the Seventh Circuit, hinting at some other possible claims that may be viable.

The HR Blog clues us in to an excellent development in the troubled area of health benefits: “New plan offers health coverage for part-time employees”

The link is to this article in the Boston Globe (parent of the HR Blog): “Coverage for the uninsured; New group plan offers ‘free-agent’ workers affordable health benefits” by Diane E. Lewis

As I get it, the notion is to aggregate a big pool of individuals who are not provided health benefits by employers, but are working for them as independent contractors or part-timers.

Even if the workers have to pay 100% on their own, they’re better off if the group buying power and risk-spreading provides better rates and more choices in coverage. Employers benefit in the long haul by removing people from the pool of working-uninsured.

Such people otherwise burden the healthcare system with unpaid bills, excessive ER visits, bankruptcies, etc., leading to higher health care costs for the employer-provided plans.

So this is win-win for employers, workers, and health care providers.

Only the insurers may lose out by having less ability to gouge folks on individual policies or small-employer groups (boo hoo hoo; in case anyone hadn’t noticed, the insurers have been profiting handsomely while everyone else has been drowning in double digit yearly premium increases).

Also from The HR Blog: “On sabbatical“

The link is to UsNews.com: “Time out: Many companies are exploring an increasingly attractive benefit for employees: paid and unpaid sabbaticals,” by Christine Larson

Interesting idea. I grew up in academia, where sabbaticals were part of the rhythm of life.

For me, they took me from the relative isolation of the midwest, at Indiana University, to the rarified atmosphere of the Institute for Advanced Study in Princeton (1972-73), The Lawrenceville School, (1972-73)and the Institut Des Hautes Etudes Scientifiques in the suburbs of Paris (1979-80).

The concept of a fully-paid sabbatical, even for a few weeks or months, is one that many businesses would surely scoff at as being unaffordable.

Yet unpaid or partially paid time off, or perhaps unpaid with only health insurance provided, may be quite attractive to certain valuable employees.

Unpaid voluntary furlough-sabbatical, or voluntary reduction of hours can be used selectively as a substitute for the all-too-common permanent pink slips at the first sign of a need for belt-tightening in economic downturns. By doing this, companies may emerge from such times with access to needed talent intact.

Now, I’ve traversed my Bloglines.com list of the HR/Employment blogosphere from A-H. Next weekend, I’ll hit the second half of the alphabet, always seeking to bring you 5-10 of the most unusual and novel cases and ideas with which to start your week . . .