Friday, April 29, 2011

Quran-Burner Gets His Job Back - COTW #38

A New Jersey transit worker, who was terminated after burning the Quran, entered into a settlement agreement with the transit corporation on April 21, 2011 (copy of the settlement agreement here). The worker, Derek Fenton, filed a First Amendment complaint back in November 2010 (copy of the Complaint here). He burned a few pages of the Quran in protest of the proposed construction of an Islamic community center near Ground Zero prompting his termination.

Public employee free speech cases revolve around a simple balancing test: The employee's interest in acting as a citizen to speak on matters of public concern is weighed against the governmental entity's right to act as an employer operating effectively and efficiently. Although that's the foundation of just about every public employee free speech case, it's remarkably difficult to actually apply in practice. There are also a number of twists, turns, and tweaks from decades of jurisprudence.

In the New Jersey Transit case, the employee was on his own time in civilian clothes in New York protesting a matter of great public concern (if the amount of media coverage is any indication). The NJ Transit Corp. claimed Fenton had violated its "Code of Ethics." Without more information, I would have to conclude that this was a pretty strong First Amendment claim. And based on the settlement agreement, the parties agreed. Fenton got his job back, back pay, back benefits, $25,000 in pain and suffering, and $25,000 in attorney's fees.

One final note, which I found particularly amusing: "Mr. Fenton will not . . . be required to undergo any 'sensitivity training.'"

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, April 27, 2011

Supplement to Bullying and Cursing in the Workplace Seminar

On Thursday, April 28, 2011, I will be hosting the HR Hero audio seminar Curses, Sued Again: Avoid Legal Pitfalls with Swearing and Bullying. As a courtesy to the registrants, please find links to some additional resources below:
Thanks to everyone who registered, and please feel free to contact me if you have any questions or comments regarding the presentation.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, April 26, 2011

You Know You Lost When...

In a recent post, I highlighted the difficulty in ascertaining a clear victor in litigation, using the Winklevoss twins and their Facebook case as an example. Well, sometimes it's not so hard. For example, if you initiated the litigation seven years ago and just now won $10,000... well, that's not great. If the jury also found that you owe them $88.5 million!... trust me, you lost.

That's pretty much what happened to Mattel, maker of Barbie, when they sued MGA for stealing the designs for Bratz. Read more about it here. Of course, it ain't over 'till it's over, so we'll see if Mattel can pull something out.

Just for kicks, the employment law tie-in is that the $10,000 award was for contract interference.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, April 25, 2011

NLRB Files Complaint Against Boeing

Late last week, the National Labor Relations Board (NLRB) announced that it had filed a complaint against Boeing. You can read the press release here.

The dispute arises out of Boeing's plans for a second line to assemble its 787 Dreamliner airplanes. Boeing had already announced plans to assemble a first line of planes at its union facility in Washington. However, it also announced plans for a second production line to assemble planes in South Carolina... a non-union plant. Per the press release:
In repeated statements to employees and the media, company executives cited the unionized employees’ past strike activity and the possibility of strikes occurring sometime in the future as the overriding factors in deciding to locate the second line in the non-union facility.
Following an investigation, the NLRB found reasonable cause to believe that Boeing's statements "were coercive to employees and its actions were motivated by a desire to retaliate for past strikes and chill future strike activity."

Per the Complaint (copy here), the NLRB is seeking an order requiring Boeing to "operate its second line of 787 Dreamliner aircraft assembly production in the state of Washington." This case has already generated a lot of controversy because of the size of the party and the amount of direct control the NLRB seeks to assert over Boeing's production. I'll be tracking this one for future developments.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, April 22, 2011

Can Employers Discriminate Against Drug Addicts? - COTW #37

In an ideal world, I could just give a one-word answer to the question posed in the title of this post and be done with it. But this is the law, where there are no easy answers (OK, maybe a few). The latest Case of the Week is Mauerhan v. Wagner Corp. (opinion here), in which the Court addresses this complex issue.

In this case, the plaintiff was fired after failing a drug test in violation of his employer's policy. That's not his complaint though. He was told that he could return to his employer if he got clean. So, he entered a drug rehab facility (testing positive for cocaine and marijuana on the way in) and completed a one-month program. His employer told him he could return to work... but for less pay and on different accounts. Ok, now he files the lawsuit.

An employee or applicant is not "a qualified individual with a disability" under the ADA, if he "is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use." 42 U.S.C. § 12114(a). So, what does "currently engaging" mean? Presumably, it does not mean at the current second... as in, you can only discriminate if the guy is literally blowing lines off the conference room table during the interview. But, how current is "current"?

There is no bright line standard, and different courts have handled it in different ways. In this case, the Tenth Circuit held:
[A]n individual is currently engaging in the illegal use of drugs if "the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem."
This is the same standard applied by the Fifth Circuit. The Tenth Circuit expressly rejected a formula, or timeframe.

It was all downhill for the plaintiff from there. His prognosis at the time was "guarded" and expert testimony indicated that Plaintiff needed three months to reach a "threshold of significant improvement." Summary judgment for the employer.

HT: Alisa Arnoff (@tervmom1 via Twitter). See also, coverage of this case from Jon Hyman.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, April 21, 2011

Hot Link, Coming Through!

Just in from the shameless self-promotion department: Lawffice Space was recently featured as a "Hot Link" in the Legal Marketing Association's Capital Ideas March/April 2011 Newsletter. It's not up on their News page yet, but check back for the full issue. For now, here's an image grab of the Lawffice Space portion:
I'm honored to be included. A few minor quibbles, however: I spell my first name with one "L" and my most popular post is "Failing Out of Law School," not "Falling Out of Law School" (although I think a lot of my 1-L tort class hypotheticals started with the latter).

I'm in good company as "Hot Links" also included two of my favorite employment law blogs: Gruntled Employees and That's What She Said. I also discovered a new (to me) one: Quirky Employment Law Questions. Thanks for the nod LMA!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, April 19, 2011

Dirty Negotiating - Psychological Warfare

I just read Getting to Yes: Negotiating Agreement Without Giving In, a quick intro to the world of negotiation. The book highlights one "dirty trick" which I found particularly interesting/entertaining/oddly comical:
They can deliberately refuse to make eye contact with you. (Simple experiments with students have confirmed the malaise many feel when this tactic is used; and they are unable to identify the cause of the problem).
P. 136 (parenthetical in original). So, it works... and nobody knows you're doing it? I'm not advocating use of this tactic (and neither does the book), but there's something really intriguing about that.

For the record, the book recommends that "recognizing the tactic will help nullify its effect; bringing it up explicitly will probably prevent a recurrence." So, keep an eye out... for people keeping their eyes out.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

A Facebook Harassment Consideration

Last week's Case of the Week was a real doozy that highlighted the importance of the employer's response to harassment. I mentioned that there was some additional bullying that I didn't cover in my post. Today, I'd like to revisit the case but highlight a different issue: Facebook.

The plaintiff in this case was a female student football team manager at Hofstra who suffered some bullying from the guys on the team. Per the opinion:
One photograph of plaintiff was posted twice on Davis's Facebook page. One page had plaintiff's photograph as part of a "Wanted for Kidnapping" poster, which referred to her as "Missy Piggie" and had additional text warning people not to approach plaintiff and calling her "Extremely Dangerous!!" The second page was headed "Wanted by the FBI," listed Summa’s name, along with "aliases" of "Miss Piggie, the 'Wannabe' Big Boss Man, F.B.Manager" and some personal information. She is described as "currently posing as an active member of the Hofstra University Football Team Managerial Staff" and "has a tendency to 'BOSS' People around without any type of authority."
The Court ultimately considers the posts as part of the totality of the circumstances, but not without some hesitation.

The Court just didn't seem too keen on the Facebook stuff and here's why:
The incident regarding the Facebook posting also presents several problems. First, there is no real connection between the posting, made by a football player or players, and plaintiff’semployment. "When sexual harassing acts occur outside the workplace, the plaintiff must identify sufficient facts from which to infer a connection between the misconduct and the employment." Heskin v. Insite Advertising, Inc., 2005 WL 407646, at *22 (S.D.N.Y. Feb. 22, 2005). Although the Facebook posting included possible references to plaintiff’s employment,i.e, "F.B. manager" and "The Wannabe Big Boss Man," the posting concerns her relationship with Hall and does not contain anything that would seem to affect her employment environment. In addition, there is no evidence that it was viewed in the workplace.
I'm not sure how much of a connection you need to draw here. I mean, imagine your co-workers (admittedly, the players are probably not "employees" here) posting your picture and calling you a bossy "wannabe" who is only "posing" as a member of the team? And "Miss Piggie"!? I think, just maybe, that's going to affect your employment environment. That said, the Court here was just asking for a specific line or connection to be laid out by the plaintiff.

I don't think this was the turning point in the case for the plaintiff. It does, however, highlight a concern for plaintiffs, and a possible defense for employers, in harassment cases involving social media. There must be a connection between the harassment and the work environment.

A copy of the opinion is available here.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Thursday, April 14, 2011

STFU "We Want Boobies" (It's the Employer's Response that Counts) - COTW #36

The latest Case of the Week helps illustrate that an employer's strong response can overcome potentially harassing conduct. Fair warning: the facts of this case may be offensive to some (although apparently some combination of not objectively offensive enough and not severe and pervasive enough to constitute a hostile work environment!).

The plaintiff was a student football team manager at Hofstra who was trapped travelling on the team bus when the following scenario played out (per her deposition testimony):
[A movie was shown in which] there were numerous sex scenes that continued to be more graphic in nature. And players making lewd comments and howling and talking about how they wanted to get laid and oh, nice tits. And then there was a particular scene that was shown where a white woman was masturbating to a black man who was in the shower. And this player, Eric Taylor, turned around in his seat and said to me, this is what you white women want, our black dicks. That shit will make you go crazy. And then everyone started laughing. And I just burst into tears and crying. And I was humiliated and embarrassed and upset.
She complained to an assistant coach while the players chanted "we want boobies" and Eric Taylor told her to "sit down and like shut the fuck up."

Sound like a tough situation? Believe it or not, there were even more bullying and harassing incidents. But, as I mentioned, the Court was not even convinced that the acts could constitute a hostile work environment (which I find rather remarkable). More importantly, even if there was a hostile work environment, the response of the coaches saved the school from liability.

The assistant coach to whom the plaintiff complained immediately shut off the movie and told the players to quiet down. "Within 48 hours of her complaint, [the head coach] performed an investigation and removed Taylor from the team." Title VII requires remedial action, and that's what the coaches did. Accordingly the Court held that "no reasonable jury could impute that liability to Hofstra."

Of course, managers want to prevent harassing conduct before it happens. That's not always possible. When employees misbehave, the managers' reactions may still save the employer from liability. Employers should plan in advance to respond to misconduct in the future.

Shameless (but related to this post) plug: I'll be hosting the HR Hero audio conference Curses, Sued Again: Avoid Legal Pitfalls with Swearing and Bullying on April 28, 2011. Sign up today!

Interesting university law side-issue: The Plaintiff was a grad student with a $700 stipend, which was sufficient to establish that she was an employee capable of bringing a Title VII suit.

Citation: Summa v. Hofstra Univ., CV 08-0361 WDW, 2011 WL 1343058 (E.D.N.Y. Apr. 7, 2011)(copy here).

HT: Andrew Slobodien (@LaborLawLawyer) via Twitter.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

HR and Social Media: Practical and Legal Guidance - New Book, Coming Soon!

I am excited to announce that I will contribute a chapter to HR and Social Media: Practical and Legal Guidance, a groundbreaking book from Thompson Publishing... coming this summer! Jon Hyman assembled the team, and I am grateful for the opportunity. He issued this announcement earlier today, from which I will steal borrow some of the details.

First, the content:
  1. Introduction: Social Media Horror Stories
  2. What is Social Media?
  3. Drafting the Social Media Policy
  4. Using Social Media in Hiring, Recruiting, and Employee Engagement
  5. Employee Privacy and Defamation
  6. Confidentiality, Non-Competition Agreements, and Trade Secrets
  7. Harassment, discrimination, and Retaliation
  8. Discovery of Social Media in Litigation  
  9. Social Media and Labor Law
I will contribute a chapter on: What is Social Media? You're probably wondering who else is on Jon's team:
That's quite a team! And, I'm honored to be a part of it. I thank Jon for including me and can't wait to see the finished product.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, April 13, 2011

"Slaves on Arianna Huffington's Plantation"

Forbes has the scoop on a $105 million dollar lawsuit filed against AOL and Huffington Post. The gist of the lawsuit (copy of complaint here) is that people blog for HuffPo but don't get compensated.... and that's unfair. As Jonathan Tasini, the labor activist heading this thing up, describes it:
[T]he Huffington Post’s bloggers have essentially been turned into modern-day slaves on Arianna Huffington’s plantation . . . She wants to pocket the tens of millions of dollars she reaped from the hard work of those bloggers . . . . This all could have been avoided had Arianna Huffington not acted like the Wal-Marts, the Waltons, Lloyd Blankfein, which is basically to say, 'Go screw yourselves, this is my money.'
The suit alleges "deceptive business practice" under New York statute, and unjust enrichment.

A quick search for unjust enrichment in New York defines a prima facie case as: "the defendant benefited at the plaintiff's expense and . . . equity and good conscience require restitution." That's not particularly helpful is it? There's no doubt that the bloggers enrich HuffPo, but I'm having trouble seeing how it's "unjust." The Complaint alleges that the site marketed itself as "a forum for news and ideas" but then *shocker* it actually intended to make money! The Complaint also claims that HuffPo hides page view, traffic, and exposure data from the bloggers.

In the interest of full disclosure, I was once cited and linked to on HuffPo... so I should be getting at least a few million from this lawsuit, right? Right!?

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, April 12, 2011

Employment Law and the Civil War

Today marks the 150th anniversary of the start of the Civil War. Certainly, the Civil War had a huge impact on the United States, including our employment laws. What better day than today to recognize some of the major impacts of the Civil War on employment law?

I'll start with the low-hanging fruit. Ask people one result of the Civil War and they'll no doubt point to the end of slavery. The Thirteenth Amendment abolished slavery and involuntary servitude in the United States. In addition to prohibiting slavery, it also arguably prohibits specific performance as a remedy in service contract cases (but see this fascinating law review counterargument in Specific Performance and the Thirteenth Amendment).

Following the Civil War, the United States also ratified the Fourteenth Amendment, including the equal protection and due process clauses. These clauses have been used to afford public employees with procedural safeguards, and protection from discrimination. Additionally, courts have used the Fourteenth to "incorporate" parts of the bill of rights to apply to public employment. For example, public employees receive limited free speech protection by incorporating the First Amendment to apply to state actors. First Amendment incorporation has also been used to afford employees unemployment compensation where they lose their jobs due to work-religion conflicts.

There are also more tenuous links to modern employment law. For example, Title VII is part of the civil rights acts of 1964. Would it have been enacted, and would it even be considered constitutional if not for the Civil War? Its precursor, the Civil Rights Act of 1875 was passed shortly after the Civil War, although that act was declared unconstitutonal because it applied to non-state actors. The Supreme Court later upheld the Civil Rights Act of 1964, not under the Fourteenth Amendment (although some Justices advocated that route), but under the interstate commerce clause.

Also, the Fifteenth Amendment protects the right to vote regardless of race or color. Would antidiscrimination laws at the local, state, and federal level be the same if the people intended to be protected couldn't vote? Sure, we'll never know what an alternate present would look like, but surely the voting rights had some impact on legislation.

That's just a rundown of Civil War impacts on employment law off the top of my head. Please drop a comment if you have any other ideas!

Image: Unidentified Union soldier; public domain from Library of Congress Civil War collection.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Monday, April 11, 2011

How do you know who won? The Winklevoss twins lost!?

It was a tough day for the Winklevoss twins. You probably know these guys from the movie The Social Network. They're the twins who liked to row and kinda sorta maybe had the idea for Facebook which was "stolen" by Mark Zuckerberg. Well, as the media is reporting today: Winklevoss Twins Lose Legal War with Facebook.

As the article explains, the twins were trying to undo a prior settlement agreement. But, they "lost" and are bound by the prior agreement:
The suit was originally settled for $65 million in 2008 . . . . The settlement is now worth more than $160 million because of Facebook's increased valuation.
That's losing!? I'm a pretty competitive guy, but I'll lose twice a day at that rate! That's the way litigation often ends though; it is not clear who won. As an attorney, if my client sustains $50,000 in property damage and I file a lawsuit on his behalf... and obtain judgment in his favor for $40,000, did we win (add some zeros if you want to compare it to Facebook litigation)?

What if I represent an employer in an employment discrimination case, and obtain summary judgment in its favor? Pretty clear win right? The employer who spent $50,000 defending the case in which it feels it did nothing wrong (a view reinforced by the summary judgment) may not see it as such a clear victory. Different parties have different goals. Ultimately, I think you need to look at your start position and compare it to your end position. Subtract out the costs of litigation (which are by no means confined to the purely financial costs) and see what's left.

In the case of the "Winklevii," they started this latest battle with a settlement agreement... and ultimately walked away with the same agreement. But, if you look back a little further, they started with a crappy website nobody cared about and ultimately got about $160 million after Zuckerberg turned the idea into Facebook. Sure, maybe they could have gotten more; I still think I'd call that a win.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, April 8, 2011

Damning Gay Co-Workers to Hell - COTW #35

An Apostolic Christian and a homosexual walk into a Wal-Mart... it's not the setup to a joke, it's the employment law Case of the Week. The two were co-workers on the overnight shift. One night, while on break, they participated in a conversation on God and homosexuality. What could go wrong?

Well, apparently the Christian employee:
[W]as "screaming over [the gay employee]" that God does not accept gays, they should not "be on earth," and they will "go to hell" because they are not "right in the head."
This presented an interesting issue for management. On the one hand, the comments harassed a co-worker in violation of Wal-Mart policy. On the other hand, the comments reflected an employee's religious view of homosexuality, and religion is a protected class under Title VII.

Well, the Christian employee was fired and subsequently brought a Title VII religious discrimination lawsuit. Apparently, the Seventh Circuit didn't find the issue quite as interesting as I did. The three-judge panel dismissed it in a two-page opinion with about two sentences of analysis:
Wal–Mart fired her because she violated company policy when she harassed a coworker, not because of her beliefs, and employers need not relieve workers from complying with neutral workplace rules as a religious accommodation if it would create an undue hardship. In this case, such an accommodation could place Wal–Mart on the "razor's edge" of liability by exposing it to claims of permitting workplace harassment.
Summary judgment for the employer.

Moral of the story? You can have your religious beliefs, but don't yell at your co-workers that they shouldn't be on earth and are going to hell.

Citation: Matthews v. Wal-Mart Stores, Inc., 2011 WL 1192945 (7th Cir. March 31, 2011).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wednesday, April 6, 2011

The Show Must Go On: Federal Courts in a Government Shutdown

You've probably already heard: the government might shut down. The media has really been ramping up the coverage on this story as we approach the midnight Friday deadline. As I type this, Congressional leaders and President Obama are meeting to try to avert the shutdown. But, what exactly happens when the federal government "shuts down?"

Well, as this is a law blog, I'll focus on the judicial branch. Our beloved federal courts (aka Article III courts) are part of our federal government. So, do they shut down if the federal government shuts down? The Blog of Legal Times reports that the Judiciary Could Limp Through Shutdown - for a While:
[T]he federal judiciary says there should be no visible disruption in its operations for two weeks. The judiciary pays its bills in part with fees, which are outside the regular appropriations process, and it says it has enough in reserves to keep its doors open even if Congress does not agree on a budget.
An extended shutdown could require individual courts, and even individual judges, to make determinations about which functions are "essential." But, in the short run, it's "on with the show."

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Tuesday, April 5, 2011

Employment Action Redaction

The Blog of Legal Times has an interesting story regarding an employment discrimination action against a law firm. However, it's not the case itself that's interesting, it's a side isssue: redaction. Wow, I never thought I'd be writing a post on the fascinating world of redaction, but here goes...

The Court granted summary judgment but the opinion was sealed. An accompanying Order directed the parties to:
[M]eet and confer in an effort to provide the Court with a joint proposed redacted version of the accompanying Memorandum Opinion appropriate for public viewing.
Why? Well, apparently a huge issue in the case was whether specific employees were paid more than certain other employees (a common theme in discrimination cases). It turns out, the Plaintiff may have had some faulty information, but let's focus on the redactions.

So, what will be redacted? The Court's Order cautioned the parties of the "strong presumption in favor of public access to judicial records." Indeed, it's extremely important that the public know what the courts are doing. But, we can look at the Defendant's Summary Judgment Brief to get an idea of what might be redacted from the opinion. The Brief contains a lot of discussion of third party employees (i.e. not the allegedly discriminating employers, nor the Plaintiff employee). So, the employer redacted the names and salary information of people not directly involved in the lawsuit.

We'll see what the Court ultimately redacts. But, redacting the names and salary information can protect the privacy of people who are not parties while still giving the public access to the Court's rationale for granting summary judgment. Parties should also look to their local rules. For example, Middle District of Pennsylvania Local Rule 5.2 requires parties to redact (with certain exceptions): Social Security Numbers, Names of Children, Dates of Birth, Financial Account Numbers, and Home Addresses.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Friday, April 1, 2011

ADA Ministerial Exception Hits SCOTUS - COTW #34

On Monday, the Supreme Court announced it would hear Hosanna-Tabor Church v. EEOC which should clarify the Americans with Disabilities Act's (ADA's) "ministerial exception." The ADA prohibits discrimination against, and mandates reasonable accommodations for, individuals with disabilities. The First Amendment of the United States Constitution keeps government away from operational decisions of churches. Do you see the conflict?

And thus, courts recognize the ministerial exception to the ADA, excluding churches from the ADA... sometimes. In the case of say Catholic Priests, it's a no-brainer, the government can't tell the church who its priests will be. But what if its a teacher at a Christian school who teaches secular courses, but has some religious duties as well? How should those cases be decided?

That is precisely the issue in Hosanna-Tabor Church. As the Church's petition to the Supreme Court frames the Question Presented:
Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.
The Church won at the trial court level but the Sixth Circuit reversed, holding that the ministerial exception did not apply in this circumstance.

So, what test did the Sixth Circuit apply (and for my Pennsylvania readers, I'll note that this is the same test currently applied in our Third Circuit)? They applied the "primary duties" test:
[A]n employee is considered a minister if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.
But, other circuits have resolved these issues using a less rigid model, holding that courts should look at all of the employee's duties (not just "primary" ones), and the nature of the underlying dispute. Still other circuits have yet to enunciate a specific test.

Hopefully, the Supreme Court will bring some clarity as to when the ministerial exception applies. For more information, including briefs, opinions, and other coverage, see SCOTUSblog.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.