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Layoffs and Mergers and Consolidations and Acquisitions … Oh My!

In recent months, businesses and institutions in the Philadelphia area have experienced a number of closures, mergers, consolidations and acquisitions that will be devastating to the greater geographic area, and have or will result in major layoffs of skilled employees and elimination of future jobs.

Here are just a few examples:

  • The owner of Hahnemann University Hospital, in existence for 171 years, announced that it would be declaring bankruptcy and closing;
  • Drexel University, announced that about 40% of its physicians and clinical staff of its medical college will lose their jobs in the wake of the closure of Hahnemann University Hospital;
  • Philadelphia Energy Solutions announced that it was closing its South Philadelphia oil refinery due to a series of explosions and a catastrophic fire, and laying off more than 1,000 employees;
  • WSFS Financial Corp. acquired Beneficial Bank, founded in 1853, with 58 locations in Pennsylvania and New Jersey, and is rebranding as WSFS Bank.

It is no wonder that employees are justified in feeling insecure. Mere months after the good economic news that the unemployment rate has dropped significantly, and that employees now have their choice of jobs, salaries and benefits, comes news of major layoffs, mergers, consolidations, acquisitions and business failures.

In addition to the economic impact of such upsetting news, there is the devastating personal impact on the lives of employees and their families, which may result in the permanent loss of long-term jobs and careers, having to accept lower income jobs or shift into gig-economy jobs, or being required to leave the area or downsize their lifestyles.

Having represented thousands of employees throughout my career, the following are my recommendations to employees in order to protect themselves in view of major layoffs or terminations, as no one is indispensable in our current marketplace.

  • Employers prefer it when their workforce is collegial, respectful of each other and aligned behind their company culture, vision and mission. While employers may have “open door policies,” workplace policies outlined in handbooks or online, social media policies and staff human resource departments, I suggest that employees think long and hard about making a complaint and what they hope to accomplish by making the complaint. Complaints about co-workers, getting involved in co-workers’ issues that are not directly related to the employee making the complaint, or disagreeing with managers and supervisors, can often set off an investigatory process, and that process can boomerang, at the expense of the complaining party.
  • The employees making these complaints generally have the burden of proving them, and that often means hiring a lawyer to assist with presenting these complaints. The complaints also mean that the employer must spend time and resources investigating the complaint, and they risk making a decision that may adversely affect them in the long run. The person who is making the complaint and the person complained about have equal rights, so if the person complained about is disciplined or terminated, that person may allege the employer acted wrongfully and the employer will have to defend themselves, costing them more time and money.
  • An employee should consult a lawyer if they are going to need extended Family Medical Leave Act time or they wish to make a claim for short term disability, long-term disability or workers’ compensation. These leave requests and policies are difficult to navigate and often conflict with each other. They can also result in terminations if they are not handled correctly and the specific legal and company requirements to make these leave claims are not followed. Also, employees have to be mindful that recommendations from their doctors do not necessarily control their employers. Employers are not required to provide indefinite leave, or hold an employee’s job open, simply because a doctor does not release an employee to return to work.
  • A lawyer should be consulted as soon as an employee has been given a performance improvement plan (PIP). Few employees survive PIPs and being given a PIP is often a good clue that an employer is seeking to find a reason to terminate an employee. It is important that a PIP is followed by the employer, but even an employee’s best efforts to meet the terms of the PIP may not result in keeping their job. A PIP is also a good opportunity for an attorney to attempt to negotiate a severance package for an employee, as an employer may be interested in offering such a package if the employee voluntarily agrees to leave.
  • If an employee belongs to a union it is still a good idea to consult an independent lawyer. An employee rarely interacts with a union lawyer except for a short time at some later point in a legal process, and that point may be far down the road from when a lawyer should have been consulted. Union lawyers also represent their union, and may have conflicts in trying to divide their representation among a number of union members who have similar issues. Also, not every union represents its members for discrimination complaints and disability issues, so it is important that employees make certain that they meet the often stringent filing requirements involved in these matters.

If an employee has doubts about what is happening in their workplace or with their position, or they have received a performance improvement plan, they should consult a lawyer and not wait until they have been disciplined or terminated. Talking to a knowledgeable employment lawyer can bring clarity to the situation and assist them in how to address their problems with the least risk to themselves.

By Faye Riva Cohen, Esquire and published on October 28, 2019 in The Legal Intelligencer and can be found here.

Ministerial Exception Defense Rejected In Suit To Apply Labor Code To Preschool Teachers

This is from religionclause.blogspot.com which you can find here:

In Su v. Stephen S. Wise Temple, (CA App., March 8, 2019), a California state appellate court held that teachers in a Reform Jewish Temple’s preschool are not covered by the ministerial exception rule.  In the case, California’s Labor Commissioner sued on behalf of 40 teachers alleging that the school violated the state’s Labor Code by failing to provide rest breaks, uninterrupted meal breaks, and overtime pay.In rejecting the Temple’s ministerial exception defense, the majority said in part:

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology.  Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception.

Presiding Judge Edmon filed a concurring opinion contending that the court need not reach the question of whether the teachers held “ministerial” positions, saying in part:

I would conclude that the Temple has not demonstrated that the ministerial exception has any application to the present dispute, which does not touch on the Temple’s freedom to choose its ministers or to practice its beliefs….

[T]he constitutional imperative against encroaching on a church’s selection of its ministers does not, as a logical matter, suggest that churches must be exempted from all laws that would regulate the employment relationship between a religious institution and its ministers. Given the number and variety of federal and state employment laws, it stands to reason that some laws will impose a greater burden on religious interests than will others. Accordingly, courts can, without doctrinal inconsistency, exempt churches from the application of some employment laws without exempting churches from all such laws.

You can learn more about this issue here.

City Settles Firefighter’s Religious Discrimination Suit

This is from religionclause.blogspot.com which you can find here:

The city of Utica, New York has settled a religious accommodation lawsuit that was filed against it by a firefighter who refuses to cut his hair after taking a Nazirite vow.  Under the settlement announced Friday, firefighter John Brooks has been granted a religious accommodation from the fire department’s grooming policy. A press release from First Liberty announced the settlement. First Liberty’s website has more on the case.

You can learn more about this issue here.

Christian School May Use Oregon’s Religious Exemption To Reject Jewish Faculty Applicant

This is from religionclause.blogspot.com which you can find here:

In King v. Warner Pacific College, (OR App, Feb. 21, 2019), an Oregon state appellate court held that a Christian college’s refusal to hire a Jewish applicant for a position as adjunct professor of psychology falls within the religious preference exemption to Oregon’s non-discrimination law.  ORS 659A.006(4)provides:

It is not an unlawful employment practice for a bona fide … religious institution, including … a school… to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:  (a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the … institution; … [and]  (c) The employment involved is closely connected with or related to the primary purposes of the … institution….

The court held that the exemption allows the school to reject a non-Christian applicant and await a later hiring cycle to fill the position, or to assign the work to an existing Christian employee.  A majority of the judges also held that this particular faculty position met the requirement of being closely connected to the school’s religious purpose.

You can learn more about this issue here.

Wisconsin Supreme Court Candidate Says Calls For Recusal Promise Are Attacks On His Religious Beliefs

This is from religionclause.blogspot.com which you can find here:

Milwaukee Journal Sentinel reports on the controversy surrounding 2005- 2006 law school blog posts of a state appeals court judge Brian Hagedorn who is a candidate for the state Supreme Court in the upcoming April 2 election in Wisconsin.  As reported in an earlier Journal-Sentinel article, the posts sharply criticized the U.S. Supreme Court’s ruling overturning anti-sodomy laws. saying they could lead to the legalization of bestiality. Hagedorn also attacked Planned Parenthood as an organization that was more devoted “to killing babies than to helping women.” Critics have called for Hagedorn to promise to recuse himself in cases involving same-sex relationships and Planned Parenthood. In a radio interview, Hagedorn, an evangelical Christian, says that the criticism of his posts and calls for recusal are attacks on his religious beliefs.

You can learn more about this issue here.

Suite Challenges School’s Restrictions On Bible Distribution

This is from religionclause.blogspot.com which you can find here:

Suit was filed this week in a Pennsylvania federal district court challenging regulations and policies of the Mechanicsburg Area School District that limit student members of a school’s Bible Club from distributing Bibles to classmates during lunch time hours. School policy allows non-school materials to be distributed only on public sidewalks outside the building and only for 30 minutes before and 30 minutes after school, except as otherwise permitted by the principal.  The complaint (full text) in Christians In Action Club v. Mechanicsburg Area School District, (MD PA, filed 1/30/2019) challenges these as “overbroad and unconstitutional time and place restrictions that impose a complete ban on literature distribution during the school day.” The suit alleges that these restrictions violate students’ free speech and free exercise rights both on their face and as applied. Cumberland Sentinel reports on the lawsuit.

You can learn more about this issue here.

VA Updates Guidelines On Religious Exercise At Its Facilities

This is from religionclause.blogspot.com which you can find here:

On Aug. 19, the Veterans Administration issued an internal memorandum (full text) updating its Policy Guidance on Religious Exercise and Religious Expression In VA Facilities.  The memo revises a 2014 Guidance.  A press releaseyesterday from the Chaplain Alliance for Religious Liberty welcomes the revision, saying in part:

This should make clear that churches may sing Christmas carols and distribute Christmas cards at VA hospitals. Further, veteran organizations may set up MIA/POW tables that include a sacred text.

You can learn more about this issue here.

Inmate Has Broader Damage Remedy Under RFRA Than Under RLUIPA

This is from religionclause.blogspot.com which you can find here:

In Crowder v. Lariva2016 U.S. Dist. LEXIS 122966 (SD IN, Sept. 12, 2016), an Indiana federal district court permitted a Hebrew Israelite inmate to move ahead against one of the prison chaplains on his complaint that he was denied a kosher diet. Because plaintiff was a federal inmate, he sued (in addition to his 1st Amendment claim) under RFRA instead of RLUIPA, and the court held that he had broader remedies as a result:

Jones [the chaplain] also argues that because the Seventh Circuit in Nelson v. Miller, 570 F.3d 868, 887 (7th Cir. 2009), held that the similarly-worded RLUIPA does not allow for the collection of money damages against individuals, the same reasoning should apply to RFRA. But there are at least two important differences between RLUIPA and RFRA that compel a different conclusion. First, … the statutory language of RFRA defines “government” as, among other things, an “official (or other person acting under color of law).” …Congress thus envisioned at least some individual-capacity suits under RFRA…. Second, RFRA, which applies to federal action, and RLUIPA, which is applicable to state action, arise from different principles.,,, [T]he portion of RFRA that authorizes lawsuits against the states was held unconstitutional because such an application exceeded Congress’s power under the Enforcement Clause of the Fourteenth Amendment in City of Boerne v. Flores…. RLUIPA was enacted in response to City of Boerne … as an exercise of Congress’s spending power[.] …[I]nterpreting that statute to allow damages actions against state officials in their individual capacities would ‘raise serious questions regarding whether Congress had exceeded its [constitutional] authority.'” … [S]uch considerations are not at issue when applying RFRA because RFRA’s application to federal action is not based on the Spending Clause…. For these reasons, the Court concludes that RFRA does allow for the recovery of monetary damages against officers in their individual capacities

You can learn more about this issue here.

Title VII’s Religious Organization Exemption Protects Salvation Army

This is from religionclause.blogspot.com which you can find here:

In Garcia v. Salvation Army(D AZ, Sept. 12, 2016), an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army by a former social services coordinator for the organization.  Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile
work environment after she stopped attending services at the Salvation Army’s Estrella Mountain Corps where she was employed.  The court held that Title VII’s religious organization exemption applies to plaintiff’s claim, and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense.

You can learn more about this issue here.

Company Settles With EEOC Over Firing of Seventh Day Adventist

This is from religionclause.blogspot.com which you can find here:

The EEOC announced last week that North Carolina-based Greenville Ready Mixed Concrete, Inc., has agreed to a $42,500 settlement in the EEOC’s suit (see prior posting) against it for firing a Seventh Day Adventist employee who refused a Saturday work assignment. The company has also agreed to a 5-year consent decree requiring it to create an anti-discrimination policy, engage in employee training, post notice about the lawsuit and submit periodic reports to the EEOC.

You can learn more about this issue here.

 

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