Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Thursday, April 21, 2022

How To Make $400,000 By Being An A**hat; And, Are You One Of The Chosen?

 I had just read about the philosophy professor who claimed it was against his religion to refer to a trans woman as she/her, and then sued after he was disciplined. The college just settled for $400,000. This isn't the first case where an evangelical Christian has claimed that their religion prohibited basic human decency and manners. And that got me thinking.

I then went for a walk and went face-first into a spiderweb and had an epiphany. An enlightenment, if you will. A new religion. Maybe you'll want to join it. And before you say, hey, you can't just pull a religion out of a hat, first of all, I have Mormon clients you've just triggered. Second, all you need for a religion to be legally protected is a sincerely held belief, observance, or practice. Here's what EEOC says about religion:

Religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Sikhism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.Further, a person’s religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.” A belief is “religious” for Title VII purposes if it is “religious” in the person’s “own scheme of things,” i.e., it is a “sincere and meaningful” belief that “occupies a place in the life of its possessor parallel to that filled by . . . God.” The Supreme Court has made it clear that it is not a court’s role to determine the reasonableness of an individual’s religious beliefs, and that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” An employee’s belief, observance, or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief, observance, or practice, or if few – or no – other people adhere to it.

Here are the beliefs of this spiderweb-inspired religion:

Name of religion: The religion is called Church of the Chosen. Why? Because the Creator's chosen people have always been the downtrodden and bullied. The misfits. The Jewish people are a good example of the chosen people, as are everyone who has been looked down upon. So if you are are gay, lesbian, trans, queer, female, Black, Brown, ace, atheist, agnostic, nerdly, disabled,  wrong in all the right ways, an underdog, a nitty gritty dirty little freak*, or you celebrate Festivus, do cosplay, geek out on a hobby, expound on the glories of wine or beer, collect rocks or books, or ever played D&D, then you are one of the Chosen.

Creator: The Creator of all things does not care what you call them. You can refer to them as God, Jehovah, Allah, or Sue. However, they do want you to know that they are non-binary. They are neither male nor female, having no need for reproductive organs. All humans are made in their image, including male, female, intersex, non-binary, and all iterations of sexual identification and sexual preference. Their pronouns are they/them. They aren't saying if there are more than one, or none, of them.

Belief: The Creator does not care if you believe in them or not. They do not need any particular form of worship. You can be atheist, agnostic, Buddhist, Muslim, Jewish, Christian, Santeria, Pastafarian, or any other religion and still be part of the Church of the Chosen. 

Pronouns: The Chosen believe that people should be given the courtesy of being called by their preferred pronouns. The Chosen also believe their religion demands** that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender. So, in the case of Nicholas Meriwether, the Chosen shall now refer to the now-rich philosophy professor as Ms. Meriwether, and use she/her pronouns. For those who refuse to use non-binary pronouns, they shall forever after or until they relent, be referred to as they/them. This is our sincerely held belief, one of our core beliefs, and it must be respected. We fully expect the Alliance Defending Freedom to represent anyone who is disciplined for doing so. As their senior counsel, Travis Barham, said, “This case forced us to defend what used to be a common belief — that nobody should be forced to contradict their core beliefs just to keep their job.”

Science: The Chosen believe in science. The Chosen believe in following the recommendations of the CDC, the WHO, and their physicians. We believe in getting recommended vaccinations unless we have an allergy or our doctor otherwise advises us against them. We believe in using masks to prevent the spread of deadly diseases. The Chosen also believe that they should not have to sit next to anyone who is both unvaccinated and unmasked for a deadly disease against the recommendation of medical professionals.  While the Chosen believe it is anyone's right to believe that masking hides the face and is against the Creator's will, the Chosen also believe that their religion demands they, and their children, avoid such people, who will almost certainly contaminate their bodies. Thus, they must assert a religious exemption if they believe they are being required to be exposed to such contamination.

Bodies: The Chosen believe that their religion demands they have control over their bodies, and that any decisions related to their bodies be between their doctors and them. The religion demands that the Chosen claim a religious exemption from the dictates of any government or other authority which would limit their ability to choose birth control, abortion, gender-affirming treatment, gender-affirming surgery, or make other choices about their bodies. The Chosen in the medical profession also believe that they must assert a religious exemption and refuse to abide by any government restrictions on what treatments they may provide to patients who have chosen to utilize birth control, abortion, gender-affirming treatment, or gender-affirming surgery. 

Education: The Chosen believe that children should be taught about all kinds of families, and that children and teachers should be able to speak about their own families. The Chosen also believe that it is sacrilege to fail to teach all aspects of history, good and bad. Teachers who are Chosen must claim a religious exemption and refuse to abide by restrictions on discussing same-sex parents, gender dysphoria, science, critical race theory, math, or banned books. Parents who are Chosen must insist that teachers and schools exempt their children and abide by their religious beliefs in this regard. 

Prayer: The Creator is not a personal genie. They do not want to be bothered by football games, craps games, school functions, civic meetings, or other trivial matters. The Chosen believe it is sacrilege to engage in public prayer other than in places of worship, prayer groups, or other places where 100% of those in attendance actively want to participate. The Chosen believe it is your absolute right to bother the Creator with whatever you want to bother them with, as long as you do not force others to listen in or participate. The Chosen believe that, if forced to listen to the prayers of others, their minds and bodies will be polluted. Therefore, they must demand a religious exemption to participating in and listening to all forced prayer.

Voting: The Chosen believe that all citizens of a democracy should be allowed to vote and that voting should be made as easy as possible for those citizens. Therefore, Supervisors of Elections and other employees who work on elections have a duty to claim a religious exemption from any and all laws and regulations in which they would be required to reduce the number of voting places, ballot drop-offs, and/or early voting days; make absentee voting more difficult; or make voting in person more difficult.

These are just some of the core beliefs of the Church of the Chosen. I may have more epiphanies about the core beliefs of the Chosen the next time I run face-first into a spiderweb.*** If you also hold some or all of these beliefs, you are one of the Chosen. It is now your religion. You can demand that public accommodations, schools, and workplaces respect and abide by your religion. If one religion can exempt itself from complying with laws and regulations, so must the Chosen.**** It is the way.

* Okay, that last part may be because I was listenng to Pink when my face hit the spiderweb, but who am I to question the Creator? Maybe Pink is a prophet.

** Because the Creator is known to be vindictive as heck. Lot's wife is a little salty about this.

*** Which happens almost daily, because the little buggers are sneaky and we have a large yard.

**** While this is written with some tongue in cheek, I am dead serious. These are my sincerely held core beliefs. If they are yours, then fight for your religious rights as one of the Chosen.

Wednesday, April 13, 2022

How To Claim A Religious Accommodation For COVID Vaccines

 First of all, let me say that I'm a big believer in the COVID vaccines. They work. That being said, if you have a real religious reason (not a political reason) for seeking an exemption to the vaccine, here's what you need to know.

EEOC just updated its guidance on this issue, so if you are serious about seeking a religious accommodation under Title VII, I suggest you read it. Here are some of the key points:

Be ready to answer some questions. EEOC has its own internal form that employers and employees can use as an example. Employers might have their own forms to fill out. Here are the questions EEOC has for its own employees to answer on the form:

1) Please identify the EEOC requirement, policy, or practice that conflicts with your sincerely held religious observance, practice, or belief (hereinafter "religious beliefs"). 

2) Please describe the nature of your sincerely held religious beliefs or religious practice or observance that conflict with the EEOC requirement, policy, or practice identified above. 

3) What is the accommodation or modification that you are requesting? 

4) List any alternative accommodations that also would eliminate the conflict between the EEOC requirement, policy, or practice and your sincerely held religious beliefs.  

What is a sincerely held religious belief?: "EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. See also 29 CFR 1605."

What are alternative accommodations?: "An employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment."

What are the employer's duties regarding an accommodation request?: "Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from getting a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship. Employers also may receive religious accommodation requests from individuals who wish to wait until an alternative version or specific brand of COVID-19 vaccine is available to the employee. Such requests should be processed according to the same standards that apply to other accommodation requests."

Can the employer say no?: "Under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. This is an easier standard for employers to meet than the ADA’s undue hardship standard, which applies to requests for accommodations due to a disability. Considerations relevant to undue hardship can include, among other things, the proportion of employees in the workplace who already are partially or fully vaccinated against COVID-19 and the extent of employee contact with non-employees, whose vaccination status could be unknown or who may be ineligible for the vaccine. Ultimately, if an employee cannot be accommodated, employers should determine if any other rights apply under the EEO laws or other federal, state, and local authorities before taking adverse employment action against an unvaccinated employee."

"If an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation." 

What can they ask about my religion?:  "However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, the employer would be justified in making a limited factual inquiry and seeking additional supporting information. An employee who fails to cooperate with an employer’s reasonable requests for verification of the sincerity or religious nature of a professed belief, practice, or observance risks losing any subsequent claim that the employer improperly denied an accommodation."

The sincerity of an employee’s stated religious beliefs, practices, or observances is usually not in dispute. The employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” Section 12-I.A.2: Religious Discrimination (credibility and sincerity). Factors that—either alone or in combination—might undermine an employee’s credibility include: whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance); whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (for example, it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The employer may ask for an explanation of how the employee’s religious beliefs, practices, or observances conflict with the employer’s COVID-19 vaccination requirement. Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs—or degree of adherence—may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held. An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

So, when they ask about your religious belief, you need to give specifics. If you say that you believe the body is a temple that you are not permitted to pollute with chemical substances, or that your religion prohibits all vaccines, you will likely need to provide examples. So can you give examples such as not having been vaccinated since you joined this religion, not taking antibiotics, not taking any supplements to boost the immune system, etc? Is there a doctor who can confirm you refused such treatments when ill? Do you also decline alcohol and other similar substances? Do you refrain from eating processed foods and drinks that contain non-organic chemicals? This is the kind of information they are looking for. If you really do follow specific limitations in your medical treatment or consumption of chemicals, then you probably have a legitimate religious exemption. 

Does it have to be a traditional religion?: "The definition of “religion” under Title VII protects both traditional and nontraditional religious beliefs, practices, or observances, including those that may be unfamiliar to employers. While the employer should not assume that a request is invalid simply because it is based on unfamiliar religious beliefs, practices, or observances, employees may be asked to explain the religious nature of their belief, practice, or observance and should not assume that the employer already knows or understands it."

Some traditional religions do object to the vaccines. However, even Christian Scientists made an exception for them, so it is not very many religions. Catholics internationally object to none, but American Catholics in some areas object to Johnson & Johnson. 

I sincerely believe vaccinations are bad. Is that a religion?: "Title VII does not protect social, political, or economic views or personal preferences. Thus, objections to a COVID-19 vaccination requirement that are purely based on social, political, or economic views or personal preferences, or any other nonreligious concerns (including about the possible effects of the vaccine), do not qualify as religious beliefs, practices, or observances under Title VII. However, overlap between a religious and political view does not place it outside the scope of Title VII’s religious protections, as long as the view is part of a comprehensive religious belief system and is not simply an isolated teaching."

And then there's Florida: Florida has passed a law banning private corporations from mandating vaccines in the workplace unless they allow exceptions that include religion (as mentioned above, federal law already has exemptions for religion). The law details how to claim each exemption, and imposes fines on employers for noncompliance. Here's the form to claim an exemption in Florida. Other states have similar exemptions. If an employer in Florida does not accept an employee's properly completed exemption form, violations can be reported to the Attorney General. The Attorney General has the authority to impose fines for such violations:

  • Up to $10,000 for private entities employing less than 100 people
  • Up to $50,000 for private entities employing 100 people or more
Public employers, including educational or governmental institutions, are prohibited from imposing COVID-19 vaccination mandates. Violations for public employers can be reported to the Florida Department of Health through VaxPassFreeFL@FLHealth.gov.

Even with Florida's lax standards, if your employer catches you in a lie about your "sincerely held religious beliefs," you can be fired, so I suggest being serious about this. Don't claim a religious belief if you don't have a real one.

I guess watching Fox News is arguably being part of a cult, so maybe there's an argument there for a religious exemption. But seriously, get the vaccine if you can. If you don't have a medical or sincere religious reason, just get it. 

If you have a sincerely held religous belief against the vaccines, you might want to talk to an employee-side employment lawyer in your state about your rights.

Wednesday, April 6, 2022

Treasury Department Report Blasts Noncompete Agreements

 I wrote awhile back about President Biden's executive order on noncompete agreements. In it, he asked the FTC and other agencies to look into curtailing the use of noncompete and other anti-competitive agreements and practices. The Treasury Department just issued a report, presumably in an effort to comply, and it's damning in the extreme on the topic of noncompete agreements. 

Some juicy excerpts:

Firms can engage in tacit collusion by sharing wage information for different occupations, conspiring to fix wages, adopting no-poach agreements where firms agree not to hire other firms’ workers, or forcing workers to sign non-compete agreements that limit their ability to switch jobs.

Wage-setting power is also evident in the large number of workers who are subject to rules and agreements that limit their ability to switch jobs and occupations and, hence, their bargaining power. For example, a recent paper estimates that one-in-five workers is currently subject to non-compete agreements and double that number report having been bound by a non-compete agreement in the past.

Employers can also act to decrease the value of a worker’s outside options. For example, restrictive employment agreements that require workers to repay training costs if they leave the firm or non-compete agreements (both discussed in greater detail below) reduce worker power by increasing the costs of leaving the firm. Those costs are explicit in the case of training repayment programs but implicit in non-compete agreements. By preventing a worker from accepting positions well-suited to their skills, firms decrease the expected gains from a worker’s job search. 

By design, non-compete agreements limit employees’ outside options, which, in turn, weakens workers’ bargaining power and raises hiring costs for other firms. The limits are typically within a geographic area for a specific period and within a set of relatively similar occupations or industries but may be much broader. Balasubramanian (2017) models the effects of non-competes to show how this narrowing of outside options reduces employee bargaining power relative to their employer. All else equal, this leads to what they call a “lock-in” effect: lower worker mobility and longer tenure, as well as a flat or declining wage profile. Both the mitigation of the “hold-up” effect and “lock-in” effect mentioned above can reduce worker mobility. Lower worker mobility increases recruitment costs for all firms as fewer workers are seeking to switch jobs than otherwise would, absent the post-employment restrictive employment agreement. The increases in recruitment costs can lead to worse matches between employers and employees, lowering wages and aggregate productivity (Javanovic 2015).

However, the share of people who negotiate over a non-compete agreement appears to be quite small. Starr, Prescott, and Bishara (2021) find only about 10 percent of employees negotiate over their non-compete agreements. Therefore, it is unlikely that most employees demand (or receive) a compensating differential from signing a non-compete agreement. Furthermore, a worker with little bargaining power (e.g., low-income workers) or who is unaware they are bound by a non-compete (which may be more likely for less-educated workers) is unlikely to be able to secure a compensating differential in exchange for signing a non-compete agreement. To the extent that a compensating differential requires an explicit negotiation, certain workers may be less willing or able to do so—for example, Babcock and Laschever (2009) argue women are much less likely to negotiate during the hiring process. Accordingly, the share of workers whose wages increase as a result of non-compete agreements is small. While one of the main justifications for noncompete agreements (as well as other types of restrictive employment agreements) is mitigation of the “hold up” effect, there are far less restrictive means of addressing this problem. For workers with access to genuine trade secrets, there may be overlapping authority with trade secrecy laws, irrespective of the existence of a noncompete agreement.

Restrictive employment agreements, including non-compete, non-solicitation, and non-recruitment agreements, may reduce firm entry. In aggregate, this tends to lead to reduced demand and wage competition, leading to fewer appealing outside options for similarly situated workers. Samila and Sorenson (2011) find that increases in supply of venture capital funds has a stronger impact on firm start-ups, patent creation, and employment growth in states that have weaker enforcement of non-compete agreements, suggesting non-compete agreements may reduce certain types of entrepreneurial activity.

So long as the perceived probability of an employer attempting to enforce the contract is non-zero, restrictive employment agreements can create frictions. Consistent with this, Starr, Prescott, and Bishara (2020) present survey evidence that workers with non-compete clauses frequently decline job offers because of their preexisting non-compete agreement, even in states that do not enforce such agreements. Likewise, survey evidence also suggests that the incidence of non-compete clause inclusion in employment contracts is not strongly correlated with enforceability of non-compete agreements, which could suggest employers include such clauses even when they do not expect them to be enforceable. This partially occurs because people tend to be risk averse. Therefore, even in places where non-compete contracts are outlawed, the presence of unenforceable non-compete clauses can have a chilling effect on job-switching. The effects may be particularly severe for lower-wage workers, who may have limited access to legal counsel.  

Twenty-one percent of workers in the top income quintile are covered by a non-compete agreement compared to eight percent of workers in the bottom quintile of hourly wages. However, this still leaves millions of workers with minimal employer-specific training subject to non-compete agreements.

Unlike higher income workers, lower wage workers likely lack sufficient bargaining power to refuse a non-compete agreement. As a result, whereas non-compete agreements may increase top-earner wages at the expense of mobility, non-compete agreements appear to reduce both wages and mobility for lower-income earners. For example, Lipsitz and Starr (2021) find that the ban on non-compete agreements for hourly workers (who tend to be lower income) in Oregon increased overall hourly wages by 2–3 percent, with a stronger efect for female workers.

Starr, Prescott, and Bishara (2021) find that the huge number of low-skill workers subject to non-competes suggests that employers routinely apply them to workers who do not possess trade secrets or customer lists and are not given specialized training. They cite as an example a large sandwich chain, which subjected its workers to extremely broad non-competes. Though these non-competes are not likely enforceable under state law, they point out that they may have an in terrorem efect that deters employees from obtaining jobs at competing employers.

A decline in the competitiveness of labor markets lowers worker wages, may decouple wages from productivity, and likely diminishes the relative share of income that goes to workers. Moreover, actions of the firm such as requiring workers to sign non-compete agreements and limiting workers’ access to information diminishes worker mobility, implicitly reducing workers’ bargaining power relative to employers. 

These direct effects on workers’ wages, employment, and mobility have important broader negative impacts on the economy. Higher inequality likely makes it more difficult to sustain sufficient aggregate demand. Lower wages disproportionately impact women and workers of color. A large pool of low-priced labor likely weakens firm incentives to invest and improve productivity, while lower mobility diminishes productivity growth by hindering the reallocation of labor to more productive firms and industries. Non-compete agreements may prevent workers from starting their own businesses and discourage innovation. In short, a growing body of evidence suggests that declining labor market competition may stymie the drivers of U.S. economic growth. 

The use of non-compete clauses, especially among internet-based commerce firms, could be discouraging firm entry (Congressional Budget Office 2020). For instance, Marx, Strumsky, and Fleming (2009) finds that an unintended change in Michigan law boosting the enforceability of non-compete agreements led to sharp declines in the mobility of patent holders. Restricting the use of non-compete agreements and other restrictive employment agreements could allow for new firm creation, as workers at incumbent firms could leave the firm to pursue new ideas, thereby forcing incumbent firms to innovate to stay dominant. 

These are just some highlights. There's lots to unpack in this 68-page report, and I suggest you read it if you are interested. Summary: noncompetes are bad for society, bad for competition, particularly bad for low wage workers, and have the effect of suppressing wages, worker mobility, and innovation. 

And haven't I been saying this all along?