Pursuant to Lutheran Church Missouri Synod canons there are two (2) types of teachers: “called” and “lay”. A called teacher, in addition to the credentials typically required of a teacher, must also complete accredited theological training. Upon completion, a called teacher is granted the title of Minister of Religion, Commissioned. The Teacher for the Church School was a called teacher and, in addition to typical secular teaching duties, also taught a religion class, led daily prayer and devotionals in her class, took her students to a weekly chapel service, and occasionally led the chapel services herself.

During her tenure with the Church School, the Teacher developed narcolepsy and requested a full school year´s (September through June) leave. The Church School granted the requested leave and replaced the Teacher with a lay teacher for the school year during which the Teacher would be on leave. Despite requesting a full year´s leave, by January 27 of her year of leave the Teacher requested to return to work. The Church School Board denied her request, indicating that it had contracted with a replacement teacher for the year in reliance upon her request for a full year of leave. Accordingly, the Church School requested that she resign and, in exchange, offered to pay a portion of her health insurance premiums. The Teacher refused to resign and on the first day she was medically cleared for work she appeared at the Church School. She was asked to leave but she refused until she received documentation that she did, in fact, appear. When the Church School principal indicated that her conduct (refusing to leave) may lead to her involuntary termination, the Teacher indicated that she had consulted with an attorney with regard to her “rights.” After meetings of the School Board and congregation, the Church School ultimately decided to terminate the Teacher and rescind her status as a Minister of Religion, Commissioned. The Church School Board believed that the Teacher´s above-described conduct amounted to “insubordination and disruptive behavior” and her “threatening to take legal action” damaged her “working relationship” with the Church School and violated the Lutheran Church Missouri Synod doctrinal belief that Christians ought not pursue secular litigation against one another, but engage in intra-church dispute resolution options instead. Consequently, the Teacher brought suit against the Church School claiming it, when it terminated her, violated the ADA as she, suffering from narcolepsy, was covered by its protections.

The Supreme Court´s decision centered around what has become known as the “ministerial exception.” The ministerial exception had been established and employed for many years in the Circuit Courts but had never been addressed by the Supreme Court previous to Hosanna. In reaching its unanimous decision, the Court began its review of relevant precedent with the English Magna Carta of 1215. Under the Magna Carta, King John, the symbolic embodiment of the English government, agreed that the Church of England would have the “freedom of elections” for its clergy and prelates. Of course, as the Court noted, the relationship of the English Church and the government, and the religious control held by each, vacillated over a course of time, but ultimately those English Christians, seeking total religious freedom, migrated to the nascent United States. Moving forward, the Court then traced the concept of a religion being free from the state regarding the selection of its “ministers” in America through the coming of the Puritans from England to America in order to escape the religious control of the Church of England and to William Penn in Philadelphia seeking to declare the independence for the Quakers also from the Church of England. Moving forward to the Eighteenth Century, the Court noted the struggle in the American South between the Church of England attempting to exert control over the selection of clergy and prelates and the American Anglican Church. After this brief overview of the history of religion and law in America, the Court concluded that the preceding is the context in which the Religion Clauses of the First Amendment of the U.S. Constitution were written. Specifically, the Court observed that “the Religion Clauses ensured that the new Federal Government – unlike the English Crown – would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own…Our decisions in that area confirm that it is impermissible for the government to contradict a church´s determination of who can act as its ministers.”

The Court then went on provide an overview of First Amendment cases over the course of American jurisprudence, ultimately concluding that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes on the Free Exercise Clause, which protects a religious group´s right to shape its own faith and mission through its appointments.” Per the description of the Teacher´s role and position within the Church School, the Court determined that the Teacher was a minister and, therefore, within the ministerial exception. The Court concluded that by “[t]he [ministerial] exception …ensures that the authority to select and control who will minister to the faithful – a matter `strictly ecclesiastical.´” The Court also ruled that the First Amendment right to assembly only serves to buttress the Free Exercise Clause´s protection of a religion to make its employment decisions vis-à-vis its ministers.

In response to the argument that suggested the ADA ought to apply to the hiring and firing of a religion´s ministers because the ADA is a neutral and generally applicable law, the Court ruled that the selection of its ministers is an internal decision which affects the faith and mission of the religion itself. By contrast, the general principle of neutral and generally applicable laws is, per the Court, only applicable to the outward physical acts of a religion. The Teacher also argued that the Court´s ruling would suddenly create unfettered chaos with religious institutions´ hiring and firing. Of course, the Court observed that the ministerial exception had been in the Circuits for many years and no such consequence has yet to result.

Finally, the Teacher asserted that the Church School´s argument that she was terminated, at least in part, due to a violation of the Lutheran Church Missouri Synod´s canonical policy that Christians seek intra-church dispute resolution as opposed to a resolution in secular court was pretextual. The Court refused to decide whether the Teacher´s assertion was accurate as such a decision would require a constitutionally impermissible inquiry into the interworking of a church, its doctrinal teaching, whether someone violated that doctrinal teaching, and whether that doctrinal teaching was properly applied. The Court ruled that such an inquiry was clearly a violation of the First Amendment right to the free exercise of religion.

Justice Thomas wrote a concurring opinion simply to say that the ministerial exception also includes a religion´s right to determine for itself what a minister is. Justice Alito (with Justice Kagan joining) also prepared a concurring opinion to make it clear that not only does a religion have the right to determine for itself what a minister is, the Western and/or Judeo-Christian concept of a minister/clergy is also the province of the religion. Justice Alito pointed out that some Eastern faiths do not have “ministers” or “clergy” in the same way as a Western faith but that does not mean that the ministerial exception does not apply to them.

Through the Hosanna decision, the Supreme Court of the United States has formally adopted the ministerial exception ensuring religious groups have complete and ultimate authority in the employment of its ministers.

Originally published on February 14, 2012 in “Upon Further Review” and can be found here.

Aside from these limited protections, most employees should be careful about what they complain about, as it may cost them their job. Unless there is some type of discrimination involved, in which case an employee is able to file a complaint with a government agency, an employee has no protection from being terminated. Filing a complaint of discrimination with a government agency also does not protect one’s job, and although employers are not supposed to retaliate against the employee filing the complaint, they often do. Also, even if the employee thinks it isn’t fair that he was terminated and the person he complained about was retained, there is no law that prevents this selection process unless there is discrimination involved. There is not a national workplace anti-harassment law as many employees think there is, and harassment must usually be tied to some protection available under the civil rights laws. Although an employer may have an anti-harassment policy in place, that policy may not have any “teeth” under the law.

I tell these persons that if they had contacted me during the time frame in which they were making the complaint I would have suggested that unless the complaint was extremely important, I may have suggested they not make it at all, or tell them they should have stopped the process if their employer asked them not to pursue it or made an attempt to resolve it, even if the employee wasn’t happy with the attempt. In some cases, I suggest that a lawyer should make the complaint as a buffer between the employee and the employer, and I have been able to save many jobs in this manner, as employers are often reluctant to retaliate against employees if a lawyer is already involved.

Employees are also frequently astonished when they learn that their job is not theirs for life. Pennsylvania is an employment at will state, which means that an employee can usually leave a job at his discretion, unless it violates a contract he has signed, with the converse being that an employer has broad discretion to terminate an employee.  The usual response I receive when I ask the employee why, if their situation is so difficult at work, they don’t look for another job, besides the responses that it is a difficult economy, is that they don’t see why they are the one who should leave.

However, a side effect of continuing to complain when an employer asks you to stop, or feels the situation has already been resolved, is that the employer, in addition to terminating the employee, opposes their claim for unemployment compensation and alleges that the employee has committed some willful misconduct which prohibits them from receiving unemployment compensation. This process often results in delay in receipt of compensation, and possibly loss of compensation if the hearing referee rules in the employer’s favor.

Therefore, before one decides they are going to raise issues based on principle, one had better determine the possibility of being terminated, losing unemployment compensation benefits, and receiving a negative reference from their former employer.

You can read this and other posts on Ms. Cohen’s blog, ToughLawyerLady here.

The severe downside of our layered system of laws is that it is nearly impossible for the average person and the small business owner to navigate the legal process. It is also a problem for large business entities, but they have the resources to seek assistance.

I am constantly surprised to read about the existence of laws I never heard of, and I learn about these laws by reading various legal publications, or hearing about them in legal seminars. Recently I read about a class action which had been brought against an amusement park because when credit cards were used to purchase entry tickets, the expiration date was also printed out. This apparently violated some law. The end result of the class action was that the amusement park was to give out free tickets to previous customers, and also to the community, if enough previous customers did not avail themselves of the free ticket offer. The only ones who received any money out of the lawsuit were the lawyers. The lawyers were doing a public service by protecting the privacy of the amusement park customers, but one wonders whether every amusement park operator is aware of this law, and if not, are they required to have their lawyers scour the law for such types of law? The answer is yes, they are so required.

The law has become so complex so that even a small matter, such as a buyer discovering a defect in a house he bought, faces some complex laws. In researching the remedies for a client in a similar situation recently, these were the issues we encountered:

State law exempts an estate (the house was sold by an estate) from responsibility in selling real estate unless the administrator/executor knew about the condition.
If the buyer complains of a problem, mediation, rather than a court hearing is required by the sales agreement. The mediator has to be paid by each party involved.
The buyer had an inspector inspect the property. If the buyer feels the inspector did not do a good job, the inspector’s agreement requires that the matter first be arbitrated, and the buyer cannot take the matter to court, at least initially.
As we were uncertain whether the buyer could prove the seller knew about the defect, or whether the inspector should have told them about the leak, which means each party would point a finger at each other, and because we could not initiate a claim even in a small claims court, where it probably would have been resolved quickly, we advised the clients just to absorb the expense of repairing the problem, which was not large, and certainly far less expensive than paying for a mediator, an arbitrator, or a lawyer.

You can read this and other posts on Ms. Cohen’s blog, ToughLawyerLady here.

Now more than ever, people are using social media sites as their primary means of communication. The proliferation of social media sites such as Facebook, MySpace, LinkedIn, and Twitter have allowed people to create a virtual identity as an extension of their actual, daily lives. The staggering growth in the number of users using social media sites has overcome the traditional means of communication giving it a major push towards becoming obsolete. As of the year 2011, the Pew Internet&American Life Project reports that 65% of online adults now use social networking sites, up from 61% just a year ago. In fact, the use of social media sites have permeated our daily lives to such a significant extent that only email and Internet search engines, such as Google, accounts for more time spent on the Internet.

It comes with no surprise that the expansion of the social media revolution has brought about significant changes to the employment landscape. As personal information is easily accessible through one’s social media page, employers have utilized this information to make employment decisions such as hiring, firing, and when conducting background checks. Recently, even with the plethora of information that could be garnered from an employee’s social media page, new cases have suggested that employers must tread with caution before accessing and using this information when making employment decisions.

One of the most recent challenges to an employment action based on information gained from an individual’s personal social media site came across the National Labor Relations Board (“NLRB”). On October 27, 2010, the NLRB’s Hartford Regional Office issued a complaint against the American Medical Response Team of Connecticut, Inc. (“AMR”) which alleged that an ambulance service unlawfully terminated an employee for making negative remarks about her supervisor on her personal Facebook page. In this case, AMR’s employee, Dawnmarie Souza, was asked by her supervisor to complete an incident report in response to a customer complaint filed against her. This was to be performed and presented during an investigatory interview. As Souza had reasonable cause to believe that disciplinary action would result against her, she requested Union representation during this interview. However, AMR denied her request and even threatened her with discipline for making such a request.

When Souza returned home later that day, she logged into her personal Facebook page and posted negative remarks about her supervisor using several expletives. Her comments drew supportive responses from her co-workers and led to further negative comments about the supervisor from Souza. AMR suspended Souza and later terminated her based on her Facebook postings on the grounds that they violated the company’s Internet policy which prohibited employees from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.

Following an investigation into Souza’s unfair labor practice charge, the NLRB issued a complaint alleging that AMR’s Internet policy, as well as their act of terminating Souza, interfered with her rights to engage in protected concerted activity under the National Labor Relations Act (“NLRA”). Most states, including Pennsylvania, abide by the Employment-At-Will Doctrine which provides that an employer is free to hire and fire an employee for good cause, bad cause, any cause, or no cause at all, and the employee is equally free to quit, strike, or otherwise cease work, subject to termination in violation of public policy or based on discriminatory motives. In the case of AMR, the NLRB has seemed to create an extra niche into the protections afforded to employees.

Section 7 of the NLRA states that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection …” Under Section 8(a)(1) of the NLRA, it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of those rights. Although it is not specifically defined, the term concerted activity generally encompasses two (2) or more employees acting together in furtherance of matters of mutual interest, such as issues regarding employee compensation, benefits or improving workplace conditions. To engage in a concerted activity, an employee must work with or on the authority of another co-worker and not just simply for his own interests. However, a single employee acting on behalf of others, or who is initiating group action, or who has discussed the matter with co-workers, can also be engaged in protected concerted activity. The NLRB has extended the protections of employees and their right to comment on social media sites regarding their wage, hours and working conditions, regardless of whether the employer is unionized or not.

In the case of Atlantic Steel Co., the NLRB developed a four part test to determine whether an employee’s activities lose their protected status due to insubordinate statements. Specifically the board considers (1) the place of the discussion, (2) the discussion’s subject matter, (3) the nature of the employee’s outburst, and (4) whether the outburst was provoked by the employer’s unfair labor practice.

The case against AMR was recently settled whereby AMR agreed to (1) revise its overly broad Internet policy rules; (2) ensure that its rules do not improperly restrict employees from discussing their wages, hours and terms and conditions of employment with other co-workers while not at work; and (3) not discipline or discharge employees for engaging in such conduct. Similarly, recent NLRB decisions display a recent trend towards deciding that employees do not lose the protections afforded to them under the NLRA notwithstanding their premeditated use of profane or obscene language toward a supervisor. In fact, in the case of AMR, Acting General Counsel Lafe Solomon equated Souza’s Facebook postings with that of a typical water cooler discussion between co-workers discussing their working conditions. Even though the case was settled, it does not provide a blanket protection in all instances of comments made through social media networks. Nevertheless, it serves as a useful reminder that employers can no longer draft broad employment policies and prohibit employees from making disparaging or criticizing their employer or supervisors. Public employers should also be weary in that any policy that restricts an employee’s ability to post public comments while off duty on a social networking site or Internet may implicate that employee’s First Amendment rights.

Although the NLRB’s position on this new protection has yet to be subject to judicial scrutiny, for now it seems that social media networking rights have prevailed over employer control.

Originally published on January 11, 2012 as the Featured Article in “Upon Further Review” and can be found here.

Montgomery County Board of Assessment Appeals, Cheltenham Township, Cheltenham Township School District, Montgomery County, and Montgomery County Board of Commissioners (hereinafter “the Government”) sought to collect property taxes on the real estate used by the Church.  The Church, of course, argued that it was entitled to a tax exemption as a principal place of religious worship.  The issue of whether the Church was entitled to an exemption to the taxes the Government sought forms the dispute addressed by the Court in the Case.

The Case’s procedural history is rather long and tangled, including stops at the Montgomery County Board of Assessment Appeals, Township of Cheltenham Zoning Hearing Board, the Court of Common Pleas (hereinafter “the Trial Court”), the Supreme Court of Pennsylvania, and one previous stop at the Commonwealth Court.  Ultimately, the Government was granted Summary Judgment by the Trial Court which was appealed to theCommonwealth Court.  TheCommonwealth Courtremanded to the Trial Court on the issue of whether the property was entitled to a tax exemption.  Upon remand, the Trial Court conducted a two-day non-jury hearing resulting in a decision adverse to the Church, specifically that the Church was not entitled to a tax exemption as an actual place of regularly stated religious worship.  The Church appealed to theCommonwealth Courtonce again, and it is the opinion issued from this appeal that is discussed herein.  The central issue discussed in the Case was whether the property-at-issue (hereinafter “the Property”) the Church claimed it was using, was an actual place of regularly stated religious worship; if it was, the tax exemption applies, if not, the Church would not receive the exemption.  In making its analysis, the Court focused squarely on the evidence presented by the parties at the aforesaid trial.

The Church initially alleged that it was a Korean Presbyterian denomination and that its pastor resides at the Property.  The Property is large, with multiple buildings surrounded by a chain link fence with a couple of locked gates as the only entrances.  Only one of the locked entrance gates was used and could be controlled by remote control from within the buildings at the Property.  The Church further alleged that a more senior cleric visits the Property once per month to preside over services and those services occurred each Sunday from4:30pmto6:00pm, which is followed by a congregational dinner.  The pastor testified at trial and admitted that the Church’s services are frequently attended only by his family and he controls the remote controlled security gate.  Additionally, while there is no sign at the Property identifying it as a church, the Church asserted that the lack of a sign was due to a zoning restriction.

The Government countered the Church’s allegations by asserting that the Property was in extraordinary disrepair and its grounds were overgrown and unkept.  Indeed, the Trial Court found that the Property requires more than $10,000,000 in repairs to make it usable.  In addition to “keep out” signs and other forms of security (such as the aforementioned remote controlled security gate restricting access to the Property), the only rooms on the Property which were heated were those used as the pastor’s residence.  The Government called a local police officer as a witness who conducted surveillance on the Property on seven (7) different occasions.  The police officer testified that he never saw anyone enter or exit the Property when services were alleged to have occurred, however he did see the pastor travel from one building to another within the Property to where services occur each Sunday.  Indeed, the Government implied that the Property was primarily the pastor’s residence as opposed to a church.

The Court determined that much of the Church’s evidence was not credible.  For example, the photographs presented by the Church were from before 1998, and the Church presented no recent photographs or recent church bulletins to demonstrate current religious use.  Ultimately, in view of the above evidence, the Court ruled that the Property was not used primarily as a church and, therefore, was ineligible for a tax exemption.

On appeal to the Commonwealth Court, the Church argued that that was no evidence that the Property was used for any other purpose aside from a church, that it has rooms which are clearly designed for a church to use, and that the Government repeatedly admitted the Church was what it claimed to be through various pieces of correspondence and such.  The Church also attacked the surveillance evidence by indicating that the police officer never interviewed anyone at the Church, that half of the surveillance reports were incomplete, and that, per the aforesaid reports, the lights were on in the building when the Church claimed to have services occurring.  Significantly, the Church pointed out that despite the claims for tax exemption made by the Church, and the allegedly extensive investigation and surveillance by the Government into the same demonstrating that the Church’s claims were allegedly bogus, the Government never pressed any charges when it allegedly discovered that the Church made spurious tax claims.  The Church asserted that the Government’s failure to act with regard to the crime of tax fraud allegedly committed by the Church was evidence that there was nothing illicit or false in the Church’s claim for a tax exemption and that the surveillance conducted on the Church was simply for the purpose of creating trial evidence.

Upon a full review of the evidence below, the Court ruled that the Trial Court did not commit abuse of discretion or an error of law in finding against the Church.  The Court found that there was sufficient evidence presented by the Government to prove that the Property was not primarily used as a Church.  The Court found that the Trial Court conducted an accurate and rather thorough analysis of the facts and issues presented and did not abuse its discretion or commit an error of law.  The Court found that there was simply insufficient evidence to prove that the Property was used by the Church primarily for religious purposes.

In the final analysis, when seeking a tax exemption, a Church must ensure that the Property it uses is primarily used for religious purposes; otherwise Caesar must receive what is his from it.

Originally published on January 10, 2012 in the Pennsylvania Law Weekly section of The Legal Intelligencer and can be found here.

You can find this post and more on Faye Riva Cohen’s blog, Toughlawyerlady here.

The Internet is a two edged sword when it comes to the law. On the one hand, I am often pleasantly surprised to learn how much knowledge a current or potential client has received from the many hours they have surfed the Internet.  On the other hand, much of that knowledge is not relevant to their issue, raises expectations of their case beyond what the facts of their case would deliver in a court of law, and often has no relevancy to the laws ofPennsylvania, where I practice and where my clients generally live or do business.  Inquirers are often surprised to learn that the cases they have reviewed and sent to me to review have absolutely no relevancy toPennsylvaniaor, quite often, their issue.

Lawyers generally know how to conduct legal research and hone in on effective and relevant law, so if a client wants me to read through many cases they feel are relevant which they have pulled from the Internet, I will do so, but I will charge them for doing so. I think their money is better spent on me conducting the research.

For instance, I recall a situation where a lawyer in another state achieved what my client thought was a remarkable result in the field of education law. I called the lawyer who told me the results of her case were “one in a million”, was entirely based on the unique facts of the situation, that her client was given significant help from some employees who worked for the school she was suing, and other fluky factors. Although the universe combined in that instance to create a unique result, and that is what it was—unique to the facts of the case- it was totally unrelated to the law as it stands in Pennsylvania.

Remember that the Internet has no controls, so anything can be mentioned. This does not mean that the things mentioned are even true. I am always surprised to learn that clients feel that if something is on the Internet, it is gospel. THE INTERNET IS NOT THE FONT OF KNOWLEDGE.  

So, There is Nothing I can Do…

It always astonishes, and sometimes angers me, when I have spent time my time, often free of charge, giving a potential client my opinion on their legal options, and they conclude by saying “so, there is nothing I can do” or “you don’t sound optimistic”. I did not say that!  I gave the potential client choices and possible results.

The disconnect between what I say and what a client often hears or wants to hear, comes because many people today, especially those who want or need to spend their hard earned dollars on legal representation, want a guarantee of excellent results. The law, and lawyers, cannot usually provide guarantees. In fact, I tell clients if they meet with a lawyer who guarantees a result, I would run the other way. There are so many factors which enter into a case, not the least of which is the opposing party, the opposing lawyer, the judicial system, the facts, the law, etc., that a result can’t be guaranteed.  The law is not a shirt whose collar frays and one can demand their money back.

What disturbs me even more is that the same people who are concerned about whether they have a 100% winnable case, and want a guarantee of same, have often spent considerable money on things related to the case for which they will not receive any benefit. They have done this without consulting a lawyer, or they have consulted everyone besides a lawyer, such as a real estate agent, an accountant, their neighbors, their family, their friends, and anyone else who is not a lawyer, who have given them poor and quite often damaging and misleading advice. If one were to do a cost benefit analysis, the amount they would have spent on a lawyer to handle the matter effectively is usually far less than what they have spent in this round-about fashion of avoiding lawyers and the legal system.

For example, I had an elderly woman consult me once who had paid $40,000 in back taxes and bringing a mortgage current after it had fallen in arrears, on a house which was owned by her niece. Yet, she did not want to pay a fraction of that amount to undertake the process of placing the house into her name.  Under the law she made a gift to her niece, and has no legal basis to recoup it if the niece sells the house or encumbers it. She doesn’t own the house.  And, this is not an unusual situation. Not only had she not consulted a lawyer prior to spending this amount, but she said she didn’t have the money to pay a lawyer to do what was necessary to give her the benefit of her investment, for a couple of thousand dollars.  I wish someone would come along and pay my bills.

I have said this before in my blogs. Do not be pennywise and pound foolish. Consult a lawyer and keep an open mind and do not expect a guarantee under the law. But, if you have a fighting chance, lawyers perform small miracles daily, and they can certainly give you better advice about the law than people who aren’t lawyers.