A decision earlier this week by a Federal District Court Judge here in Minneapolis offers some very useful guidance on accommodating requests for religious accommodations by employees. 

Celestica Corporation operates a manufacturing plant in Arden Hills.  Adecco USA provides temporary employees to Celestica.  The plaintiffs are practicing Muslims who allege that Celestica discriminated against them by failing to accommodate their religious duty to pray five times each day.  In particular, Celestica permitted employees to take unscheduled breaks for personal reasons (such as to use the bathroom), but did not permit plaintiffs to take unscheduled breaks to pray.  Celestica instead argued that it offered the employees a reasonable accommodation by giving them the opportunity to transfer to a different shift which would be more amenable to pray breaks. 

 The Court first found that Celestica’s proposed accommodation — allowing the Muslim employees to transfer to the first shift — would not necessarily have resolved the conflict because different employees had different believes about when they were required to pray.  “Given the variance in the religious beliefs at issue in this case, the Court cannot conclude that, because the first-shift employees may be satisfied with their schedule, an offer to transfer to the first shift would have fully resolved the religious conflict for each of the plaintiffs in this lawsuit.”  While also recognizing that a company is not required to offer an accommodation that completely eliminates the conflict, the Court decided that the reasonableness of Celestica’s proposed solution was a factual issue that it could not decide at this stage of the case.    (In fact, as the Court recognized, an accommodation may be reasonable even if it does not completely eliminate the employee’s religious conflict.) At trial, Celestica could still argue that the proposed accommodation would result in an unreasonable hardship.

 The Court also offered guidance on how a jury might decide whether a proposed accommodation was reasonable:

“It turns on fact-intensive issues such as work demands, the strength and nature of the employee’s religious conviction, the terms of an applicable CBA, and the contractual rights and workplace attitudes of co-workers. Bilateral cooperation under Title VII requires employers to make serious efforts to accommodate a conflict between work demands and an employee’s sincere religious beliefs. But it also requires accommodation by the employee, and a reasonable jury may find in many circumstances that the employee must either compromise a religious observance or practice, or accept a less desirable job or less favorable working conditions.”

 The Court did offer some rules for determining whether a given accommodation is reasonable. For example:

• An employer is not required to deprive other employees of their contractual rights in order to accommodate an employee’s religious needs.
• An employer is required to offer a reasonable accommodation, not the accommodation preferred by the employee. Thus, if the employer has offered one reasonable accommodation, the employee cannot insist on a different reasonable accommodation, even if the preferred accommodation would not inflict undue hardship on the employer.
• An accommodation may be reasonable even though it imposes some costs on the employee.  At the same time, the extent of and justification for the costs imposed on the employee are relevant to the reasonableness of the employer’s efforts to accommodate.  
• An accommodation might be unreasonable if it imposes a significant work-related burden on the employee without justification.  However, if  there are two possible accommodations, neither of which would impose any cost whatsoever on the employer, but one of which would inflict such drastic personal hardship on the employee that the employee could not possibly accept it. In such a case, the employer’s decision to offer the accommodation that inflicts drastic personal hardship — with no corresponding benefit to the employer — would not seem “reasonable.”
• The reasonableness of any accommodation also depends on the nature of the employee’s religious beliefs and how they conflict with the employee’s work duties.

In summary the Court indicated that what is “reasonable” is difficult to boil down to a set formula. Instead, the determination of reasonableness is quintessentially a fact-bound inquiry that depends on the unique circumstances of each case.  Of course, this makes it more difficult for defendants to obtain summary judgment on this type of case, and easier for plaintiffs to get their case in front of a jury.

I wrote about the renewed attention on and risks of using unpaid interships here.  Now, the Department of Labor has come out with a useful Fact Sheet on the issue.

It seems British lawyers are jumping on the “virtual law firm” bandwagon.  They seek to develop “a fresh way of working,” using technology ”to give a streamlined service without the traditional law firm infrastructure” and offering ” greater value for money and certainty on fees.”

Sounds familiar!

The Institute provides a thorough update (in both oral and written form) on every new law development impacting those involved with employment law, including an FLSA update, a new “litigators update,” an 8th Circuit case update, an update on retaliation cases, an FMLA case update, and update sessions on EEOC initiatives.  You also receive materials from every session – both those you attend and those you do not – all in the 2010 Employment Law Handbook in a searchable CD-ROM format.

 This year’s Institute also features new “schools” designed around key topics – Discipline and Discharge School; Litigation Strategy School; EEOC School; and International Employment Law School.  There are also 8 Wage and Hour Sessions discussing potential FLSA problems and on FLSA litigation.

I will be talking about “Practical Tips When Non-Compete Agreements are in Play” with my friend Gary Eidelman from Baltimore.  I hope you will consider attending.

What is the secret to having happy employees?  According to this business owner, it’s two-fold: treat them well, and fire the unhappy ones.   “As a manager you cannot make everyone happy. You can try, you can listen, you can solve some problems, you can try some more.  But there comes a point when you are robbing the business of precious time and energy.”  Sometimes people who would be great employees somewhere else just don’t fit your company, whether it is the type of business or the company culture.

This is good advice; all too often I see employers who keep disgruntled employees around for far too long.  In my view, it is better to move them out sooner rather than later (before they have spread their toxicity too much!)

This morning there are a couple of interesting privacy stories that serve as good reminders of best practices in this area.  The first arises in connection with a union arbitration over discipline meted out to an employee of a municipal liquor store in Paynesville, Minnesota.  As you know, these types of arbitrations usually depend largely on the terms of a particular collective bargaining agreement and the specific past practices of the employer.  What makes this matter interesting, however, is that the employee’s bad conduct came to light because the employer was surreptitiously making audio recordings of everything that happened in the store.

As I discussed here,  employers are generally free to use video surveillance techniques (except in places like locker rooms where employees have a “reasonable expectation of privacy”).  It is far riskier, however, for employers to use audio surveillance, especially if the employees are not made aware of it.  Besides potentially violating federal and state laws governing wiretapping, such a practice might also constitute an invasion of privacy.

The arbitration decision in the Paynesville case mentioned above confirms this analysis.  As the arbitrator wrote: “To meet a fairness or just cause standard, employees would need to be told that they would be subject to both audio and visual surveillance and that the information gathered would be used to review their performance, and potentially used as a basis for discipline.”  While non-union employers probably don’t need to include the language about surveillance being used to review performance, the best practice is for employers who chose to use audio surveillance for legitimate business reasons to advise their employees that they are doing so; otherwise, the employee may claim that she had a reasonable expectation that her private conversations would remain private.

The second development involves credit checks on prospective employees.  As this article in yesterday’s Star Tribune discusses, a number of states are considering legislation that would limit employer’s ability to do credit checks on job applicants based on fears that it unfairly harms people in debt because of past financial problems.

As I have written about before, employers should not have blanket policies regarding background checks for applicants. Credit problems and criminal convictions should not be automatic exclusions; rather, they should be evaluated based on the job, the amount of time since the problem, and other factors.  As one Wisconsin legislator quoted in the Star Tribune rightly put it: “If someone is trying to get a job as a turck driver or a trainer in a gym, what does his credit history have to do with his ability to do that job?”

This article from yesterday’s NY Times on the continued importance of business travel contains some great advice from Don Lents, chairman of the Bryan Cave firm:

“You should never engage in a disagreement electronically.  If you are going to disagree with somebody, you certainly don’t want to do it by e-mail, and if possible you don’t even want to do it by phone.  You want to do it face-to-face . . . because you can read the body language and other social signals.  In person, you see somebody reacting in a way that you didn’t expect.  Then you can stop and figure out what’s going on, and adapt.”

From his lips to God’s ear.

Reading this motion - To compel defense counsel to wear shoes without holes at trial – has got me thinking about all sorts of other motions that I’ve overlooked in the past.  To wit:

• Motion to require counsel to use mouthwash;
• Motion to prohibit counsel from wearing that hideous tie (you know which one I mean);
• Motion to compel counsel to be more organized so that we can move things along;
• Motion to require counsel to write shorter and more readable briefs; and
• Motion to prohibit counsel from acting like such a putz.

Feel free to add your own.

Hat Tip:  Practiceblawg.

U.S. marshals last week seized a black 1992 corvette at the home of the president of Brocon Petroleum after the company failed to pay $7,500 in back wages to a former employee. The back wages were the result of a consent judgment filed in the U.S. District Court for the District of New Jersey to resolve a whistleblower lawsuit filed by the Labor Department in March 2008.  Under the consent judgment, Brocon Petroleum had agreed to pay the former employee’s back wages in addition to removing all reference to suspension or discharge from the employee’s personnel file and posting a notice notifying current employees of their whistleblower rights. However, the company failed to comply with the monetary terms of the consent judgment.

I can think of so many things to say about this, but its late and I can’t tell which are funny.

Hat Tip: Michael Fox