Employer Must Accommodate an Employee’s Religious Beliefs

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Published on Sunday, 29 January 2012 21:22

The law requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause the employer an undue hardship, specifically, cause more than a minimal burden on the employer’s operations. This means an employer may be required to make reasonable adjustments to the work environment in order to allow employees to practice their religion. Some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, modifications to workplace policies or practices, and accommodating an employee’s grooming practices related to their religious beliefs. In terms of grooming practices, this might include, for example, permitting the employee to wear a particular head covering or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It could also include an employee's observance of a religious belief that prohibits wearing certain garments (such as pants or miniskirts). When an employee needs a grooming accommodation for religious reasons, the employee should provide notice to the employer that he or she needs such an accommodation for religious reasons. If the employer reasonably needs more information to determine whether or not the accommodation can be granted, the employer and the employee should engage in an interactive process to discuss the request. If the accommodation would not pose an undue hardship on the employer, it must be granted.

However, as noted above, an employer does not have to provide a religiously based accommodation unless doing so would pose an undue hardship on the employer. Whether a particular accommodation may cause undue hardship on the employer depends on numerous factors including whether the accommodation is: (1) too costly; (2) compromises workplace safety; (3) decreases workplace efficiency; (4) infringes on the rights of other employees; (5) requires that other employees to do more than their share of potentially hazardous or burdensome work.

A recent case filed by the Equal Employment Opportunity (EEOC), serves as a reminder that employers must not discriminate against an employee by failing to grant a religiously based accommodation, provided it does not pose an undue burden on the employer. In this case, the EEOC alleges that Ozarks Electric Cooperative Corporation, an electric power supplier, violated the law by terminating an employee who was a Jehovah’s Witnesses, and who had requested a day off to attend a religious convention. Katharine W. Kores, district director for the EEOC, commented on the case noting that “This employee’s request was so modest and minor it is astounding the company not only refused it, but also fired her…Employees should never be forced to choose between their religion and their job.” Read More.

NLRB Releases Second Report Detailing Social Media Cases

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Published on Thursday, 26 January 2012 05:08

In order to provide further guidance to employers and human resource professionals, the National Labor Relations Board (NLRB) has released a second report describing social media cases reviewed by the NLRB’s Acting General Counsel. The Operations Management Memo involves 14 cases, half of which involve questions about employer social media policies. The NLRB found that five of the policies were unlawfully broad, one was lawful, and one was found to be lawful after the employer revised the policy. The remaining cases involved terminations of employees after they posted comments to Facebook. The NLRB determined that several of the terminations were unlawful because they flowed from unlawful policies. However, in one case, the NLRB upheld the termination despite an unlawful policy because the employee’s posting was not work-related. The report emphasized two important points made in an earlier compilation of cases: (1) “Employer policies should not be so broad that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees; (2) An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.”

In light of the evolving nature of social media cases, the Acting General Counsel requested that all NLRB regional offices forward cases which the Regions believed to be meritorious. Approximately 75 cases have been forwarded to date. The report does not name the parties to the cases or their locations; however, the report does demonstrate that social media cases are very fact-specific.

The report also reflects the Acting General Counsel’s interpretation of the National Labor Relations Act as it relates to communication methods that were not in existence when the Act was written. Three cases involving social media questions are currently pending before the NLRB. It is anticipated that the decisions in those cases will provide further guidance for employers on this complicated issue.  Information on the three cases may be found: here, here, and here. Read More.

Employee Terminated for Working Through Lunch Wins U.I. Appeal

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Published on Tuesday, 24 January 2012 05:19

Sharon Smiley worked for 10 years as a receptionist and administrative assistant at a Chicago real estate company. However, she was terminated for working through her lunch, in violation of company policy. Specifically, Smiley alleged that she punched out of work for lunch but remained at her desk to finish a project assigned by a manager because she did not plan to eat that day. Another manager advised Smiley that it was time for her to take her meal break and step away from her desk, but apparently she refused. The manager observed Smiley performing her job duties including working on a spreadsheet on her computer, answering the phone and responding to questions by people who approached her desk. The company's human resources director became involved, explaining that hourly non-exempt employees were required to take a 30-minute meal break, a policy that had been in the company handbook for 10 years. Further, the HR director advised that not following the policy would be a violation of Illinois' labor laws. Smiley was terminated and subsequently Smiley filed for unemployment insurance (U.I.) benefits, which were denied due to her “misconduct.” According to the employer, Smiley had been warned several times about working during her meal period. After a two-year battle, an Illinois appeals court has found that denial of her unemployment benefits was "clearly erroneous." Similar to California, Illinois requires employers to provide employees a lunch break. But, according to one legal expert, Michael LeRoy, law professor at the University of Illinois at Urbana-Champaign, the law does not mean that an employer may fire a worker who refuses to take a break in order to finish his or her work. This puts employers in the difficult position of risking a violation of wage and hour laws by not disciplining employees for failing to take their meal periods as required by law and workplace policies versus imposing disciplinary measures for failure to follow company policy, such as termination, which could be interpreted by a court as inappropriate under the circumstances. Read More.

U.S. Supreme Court Considers How FMLA Applies to State Workers

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Published on Wednesday, 11 January 2012 18:44

On January 11, 2012, the U.S. Supreme Court heard oral arguments in a case involving how the federal Family and Medical Leave Act (FMLA) applies to state government workers. The case, which could affect millions of state workers, was brought by Daniel Coleman, a Maryland man who says he was wrongfully terminated for trying to take a 10-day medical leave to deal with hypertension and diabetes, and then was barred from suing state officials for monetary damages. The 1993 federal leave act provided workers a right to unpaid medical leave, but Maryland and Coleman disagree about the penalty for violations. Coleman argues he should be able to sue the state for monetary damages. However, Maryland and 26 other states argue they are protected from monetary damages in such cases. Coleman was terminated from his job overseeing contracts for the Maryland court system in 2007. According to Coleman, he was fired after asking for time off for doctor-ordered bed rest to deal with hypertension and diabetes. Pursuant to FMLA, eligible employees can take up to 12 weeks of unpaid leave for certain reasons, including a serious health condition. After being terminated, Coleman sued, alleging a FMLA violation; however, a lower court dismissed his claim. He had asked Maryland to pay him a reported $1.1 million in compensatory and punitive damages. But, as indicate above, lawyers for Maryland argued that Congress should not have provided Coleman with the ability to sue state employers for monetary damages. Unlike private employers, states are generally exempt from such lawsuits. Two lower courts agree with Maryland that Congress overstepped its authority. Read More.