This week in employment law: Island of the Misfits

2019 ends with a bang.

Even apart from that big political event that begins with the "I" word, and those two major holidays that are imminent, there have been some very weird employment-related news items this week. Have you been paying attention? Take our quiz and find out! As always, the answers will appear at the end of each question, so you can cheat all you want, and no one will be the wiser.

"Golly, I hope they'll let me play!"

Since many of these are so bizarre (although I've mixed in a few serious items, too), I've decided that The Island of Misfit Toys from the old stop-motion TV classic Rudolph the Red-Nosed Reindeer should be our theme this week. If you make it all the way through, you'll get a "Misfit Toy" selected especially for you.

Ready? Here we go!

No. 1: Some dude in Toronto voluntarily resigned from his position and then decided not to work his full notice period. Instead, he brought a guitar to work on what he chose as his last day and sang a song, dedicated to his manager. What was the title of the song?

A. "I have appreciated the opportunity to work with you. Let's keep in touch."

B. "Take this job and shove it."

C. "Thanks -- it's been real."

D. "F*** this, I quit."

ANSWER: D. (B has already been taken.) I just hope this guy never needs a reference.

"This attorney is a bigger misfit than a jack-in-the-box named Charlie."

No. 2: This week, a federal judge in California removed an obnoxious attorney from a case and then demanded that he resign from the legal profession altogether. What got the judge's goat were some emails that the attorney sent to opposing counsel. Which of the following did the attorney not do?

A. Threaten opposing counsel with sanctions.

B. Say that lawyers are "306 million gay boys." (Not that there's anything wrong with that.)

C. Tell opposing counsel, "Pay up, f***face."

D. Tell opposing counsel to "eat a bowl of d**ks."

ANSWER: A. (Well, he might have threatened opposing counsel with sanctions . . . I don't know because I was a little distracted reading those emails.) Anyway, the Honorable U.S. District Court Judge Otis Wright II of the Central District of California was not amused by the email communications of attorney Christopher Hook. The judge told Mr. Hook, "Tell you what, slick, this profession does not need you. I'm going to do what I can to remove you from the profession." When Mr. Hook said he would not resign, Judge Wright said, "Shut up! I want you to resign from this profession."

(Psst, Mr. Hook - I hear there is a good opportunity that just opened up in Toronto.)

No. 3: The U.S. Supreme Court agreed this week to hear an employment-related case. What is the issue?

A. Whether Title VII prohibits discrimination based on ancestry and marital status.

B. How far the "ministerial exception" under the anti-discrimination laws really goes.

C. Whether covenants not to compete violate the Sherman Antitrust Act.

D. Whether use of the expression "OK Boomer" creates a hostile work environment in violation of the Age Discrimination in Employment Act.

ANSWER: B. Of interest to religious schools and other sectarian employers, the Court has agreed to review two decisions involving Catholic schools, both from the U.S. Court of Appeals for the Ninth Circuit. In one case, Our Lady of Guadalupe School v. Morrissey-Berru, the school was sued by a former employee for age discrimination and wrongful termination. In the other case, St. James School v. Biel, the school was sued for disability discrimination. In both cases, the appeals court said that the cases should proceed, finding that the former employees were not "ministers" and therefore not subject to the ministerial exception. 

The "ministerial exception" was adopted by a unanimous Supreme Court in the 2012 case of Hosanna-Tabor Evangelical Lutheran Church v. EEOC. The idea is that the courts (that is, "the State") should not interfere with employment decisions made by religious organizations when the employees perform "ministerial" functions. This is an outgrowth of the Establishment and Free Exercise clauses of the First Amendment to the U.S. Constitution. Here's how the exception works:

Let's say a church fires its assistant pastor and its janitor at the same time, and in both cases race discrimination was the reason. If the assistant pastor sues, his lawsuit should be dismissed right off the bat because a pastor's duties are clearly "ministerial." The church has the discretion to do what it considers best without any interference from the courts.

On the other hand, the janitor in all likelihood could proceed with his lawsuit because custodial duties are almost never tied to church doctrine and are not "ministerial." Thus, the courts can enforce all applicable employment laws with respect to the janitor.

The tricky part comes when the "ministerial" functions are not so clear-cut. For example, is a math teacher at a Catholic school "ministerial"? Maybe not, but what if she works religious lessons into her story problems? What if she leads her class in presenting devotions during school assemblies, or goes with them to Mass?

Here's what I wrote about this issue back in 2012:

The majority opinion in [Hosanna-Tabordid not provide any extended discussion of what constitutes a "minister." If you recall, the teacher in that case was actually called a "minister," was ordained, and taught religion and led worship services, so her situation was clear-cut. (A concurring opinion by Justices Alito and Kagan provided an excellent discussion of who else might be a "minister," but their opinion is not binding.) . . ..

Some clarification from the Supreme Court as to how broadly the ministerial exception applies will be much appreciated.

"These guys think outside the box. Just like us!"

No. 4:  A company in the United Kingdom has come up with an innovative way to increase employee productivity. What is it?

A. Train managers to say "Great job! You're the best!" whenever an employee is productive.

B. Give employees a recreational axe-throwing outing every month if they exceed their production goals.

C. Encourage employees to spy on their colleagues and tell Human Resources if they catch any slackers. Pay a monthly bonus to the biggest "rat."

D. Replace all of the toilets with new ones that are angled down so that it's uncomfortable -- if not downright excruciating -- to sit on the "pot" too long. That way, employees will stop hanging out in the bathroom stalls reading magazines and texting instead of working.

ANSWER: D. I'd say "Only in America" if this weren't the U.K. Where do people come up with this stuff? Folks, this is how you get unions. Oh, wait.

No. 5: Speaking of unions, the National Labor Relations Board has been hot, hot, HOT this week. What happened?

A. The Board issued regulations that loosen up the Obama Administration's "quickie" elections timetable.

B. The Board decided that it was not an unfair labor practice for an employer to have downward-sloping toilets in its restrooms.

C. The Board decided that singing "F*** this, I quit" to your supervisor is not concerted protected activity because you are neither acting on behalf of other employees nor preparing for group action.

D. The Board decided that employers could lawfully prohibit employees from discussing pending workplace investigations.

E. The Board decided that employees do not have the right under the National Labor Relations Act to use their employers' systems (including email) for non-business purposes, including union business.

F. The term of the Board's only Democrat expired, leaving an all-Republican Board.

G. All of the above.

H. A, D, E, and F.

ANSWER: H. The scoop on the "quickie" elections rollback -- from Graham Newsome of our Macon Office and David Phippen of our Washington DC Metro Office -- is here and here. The decision about confidentiality in employment investigations is here, and here is the decision about employees' use of employers' email for non-business purposes. Good news for employers.

And the term of Member Lauren McFerran, a Democratic Obama appointee, expired this past Monday. Member McFerran was the lone dissenter in the Board's confidentiality and email decisions. The NLRB is now 100 percent Republican. But it has two vacancies, both of which would be filled with Democrats. If the President ever gets around to nominating a Democrat. After this week, I'm not holding my breath.

"Let's show 'em what they've won!"


4-5 correct: You'll go down in history!

2-3 correct: Mm. You're a little like the elves' chorus after Hermie dropped out of the tenor section. Not quite up to par.

0-1 correct: Eek! You're Bumble, the Abominable Snowman, before he turned nice!

Just kidding! You all did great, and nobody will get lumps of coal in their stockings this year. Oh, and here's that Misfit Toy I promised you:


If that's not a misfit, I don't know what is. And also a Major Award, because you deserve it!

Image Credits: Still images from flickr, Creative Commons license. Misfit Rudolph by Bart Everson, Polka-Dotted Misfit Elephant by Kate Haskell, Misfit Hermie by Rikki's Refuge, Misfits Bumble and Rudolph by kristy.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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