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Articles by John Melcon
Judge Partially Blocks EEOC's Rule Requiring Accommodations for Workers' Abortions | JD Supra
The Equal Employment Opportunity Commission's (EEOC) new regulations implementing the Pregnant Workers' Fairness Act (PWFA) went into effect earlier this week, but not for everyone. For a few employers, a Louisiana-based federal court has blocked the regulations' so-called “abortion mandate.” Among other requirements, the EEOC's regulations obligate employers to provide reasonable accommodations for known limitations related to an employee's choice to have or not have an abortion.
Dept. of Education Expands Title IX Protections, Preserves Religious Exemption in Updated Regulations | JD Supra
On April 19, 2024, the U.S. Department of Education (ED) issued its long-awaited “final rule” broadening and clarifying the scope of Title IX, a federal statute that prohibits sex discrimination in education programs receiving federal funding.
EEOC Adopts Broad Rule Requiring Workplace Accommodations for Pregnancy-Related Conditions—Including Abortion | JD Supra
On April 19, 2024, the Equal Employment Opportunity Commission (EEOC) published its final rule adopting an expansive view of what counts as a pregnancy-related condition that triggers employer accommodation obligations under the recently enacted Pregnant Workers Fairness Act (PWFA). Employers have 60 days to prepare before the new rule goes into effect.
Don't Count on Religious Freedom Arguments to Overturn Religious Worker Visa Denials | JD Supra
Churches and other religious organizations can file petitions to sponsor foreign workers for religious worker (R-1) status in the United States—a status that can last up to five years. However, poor planning and well-meaning but improper actions during the process can lead to rejections, a result that religious freedom arguments won’t necessarily reverse. A large church based in New Mexico recently learned that the hard way.
DOL Officially Returns to Stricter Independent Contractor Rule Under Fair Labor Standards Act | JD Supra
“Employee means any individual employed by an employer.” That’s not some sixth grader’s attempt to mask their failure to study for a vocab quiz: It’s what Congress gifted us with 85 years ago in the Fair Labor Standards Act (FLSA), which establishes the federal minimum wage and imposes overtime pay requirements. Is the FLSA’s definition of “employee” an elegant legislative masterpiece or an example of circular nonsense?
Labor Dept Floats $20,000 Increase to Salary Threshold for Overtime Exemption | JD Supra
In a much-anticipated proposed rule, the U.S. Department of Labor announced its intention to raise the minimum salary for workers to be exempt from overtime pay under the Fair Labor Standards Act. Congress enacted the FLSA 85 years ago to eliminate substandard wages, protect workers from excessive hours, and reduce overall unemployment. One way the FLSA is designed to achieve these goals is by requiring time-and-a-half pay for work over 40 hours in a week.
Appeals Courts Divide Over Application of LGBTQ+ Nondiscrimination Law to Religious Businesses | JD Supra
A federal court of appeals ruled last week that religious businesses may be partially exempt from Title VII — a statute that prohibits workplace discrimination because of sexual orientation, gender identity, and other protected characteristics — if they have faith-based policies about “homosexual and transgender conduct.” A for-profit Christian-owned healthcare business prohibited its employees from engaging in “sexually immoral” conduct and had a “sex-specific dress code that disallows...
Failure to Tie Request for Service Dog to Job Functions Dooms ADA Claim | JD Supra
A recent court decision confirms the complexity of evaluating employee accommodation requests involving service dogs under the Americans with Disabilities Act (ADA). A military veteran who experienced horrific suffering while serving in Iraq and Kosovo asked his employer, the Union Pacific Railroad Company, if he could keep his trained service dog with him during stints as a freight train engineer to help with post-traumatic stress disorder.
Longmont United Hospital v. NLRB – CourtListener.com
Longmont United Hospital v. NLRB, 22-1262 (D.C. Cir. 2023) Court of Appeals for the D.C. Circuit June 13th, 2023 Precedential None known 22-1262 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued April 14, 2023 Decided June 13, 2023 No. 22-1262 LONGMONT UNITED HOSPITAL, PETITIONER v.
Department of Labor Rolls Back Protections for Religious Federal Contractors | JD Supra
The U.S. Department of Labor (DOL) has officially rescinded a controversial 2020 rule that expanded religious exemptions under Executive Order No. 11246 for certain federal government contractors. Although the change may have limited direct impact, it sheds light on broader controversies about the scope of religious exemptions in Title VII and other employment nondiscrimination laws.
Supreme Court Poised to Increase Obligations for Accommodating Workers’ Religion | JD Supra
Earlier this month, the U.S. Supreme Court agreed to revisit the threshold for accommodating workers’ religious beliefs or practices that clash with workplace requirements. The current standard doesn’t require employers to accommodate a worker’s faith if doing so would impose more than a slight burden on the employer, but it’s likely the Court’s conservative majority will ratchet up that standard in response to calls for greater religious liberty protections in the workplace.
Independent Investigations and Decision-making Can Help Employers Avoid Liability
How to avoid liability — a practical business lesson in challenging Aesop's "cat paw" fable in the court of law. In one of Aesop’s fables, a monkey dupes a cat into pulling roasted chestnuts from a hot fire, promising the cat a share of the bounty. The flattered cat complies — burns its paw in the process — only to watch the monkey devour the whole snack.
Independent Investigations and Decision-making Can Protect Employers from Liability | JD Supra
In one of Aesop’s fables, a monkey dupes a cat into pulling roasted chestnuts from a hot fire, promising the cat a share of the bounty. The flattered cat complies — burns its paw in the process — only to watch the monkey devour the whole snack. This imagery has become engrained in the employment-law concept of “cat’s paw” liability, a theory by which employers can be held responsible for the discriminatory animus of biased supervisors. The Tenth Circuit’s recent decision in Parker v.
Court Blocks EEOC Guidance on Transgender Bathroom and Pronoun Policies | JD Supra
Last summer, the Equal Employment Opportunity Commission (EEOC) issued guidance for employers addressing — among other things — bathroom use and pronouns for transgender workers. A federal court has now blocked the EEOC from enforcing the guidance, ruling that the agency failed to follow proper implementation procedures. The EEOC’s guidance was intended to explain what the Supreme Court’s 2020 decision in Bostock v. Clayton County means for employers.
Wanna Get to Court? Now You Can: Supreme Court Refuses to Compel Arbitration for Airline Baggage Loaders | JD Supra
In a unanimous decision issued Monday, the Supreme Court refused to reroute an airline cargo loader’s underpayment claims to private arbitration. The case, Southwest Airlines v. Saxon, No. 21-309 (June 6, 2022), is a rare example of the high Court declining to enforce an arbitration agreement, but the decision’s narrow grounds mean it is unlikely to have a major impact on the validity of mandatory arbitration agreements in other contexts.
Freedom for Religious Hiring
Threats to Religious Hiring There are a variety of threats to religious hiring, both legal and non-legal. On the non-legal side, Christian leaders report it is difficult to find talented workers who fit their organizations’ religious criteria, particularly in specialized fields. In addition, the apparent increase in polarization amongst Christians makes it difficult for leaders to maintain a spiritually unified workforce.
Job Reassignment with Reduced Hours and Pay: “Punishment” or “Reasonable Accommodation”? | JD Supra
It’s been said that one person’s trash is another person’s treasure. A similar principle applies in employment law, where managers and workers sometimes develop contradictory perceptions about employment decisions. What a manager views as a reasonable accommodation (i.e., of an employee’s religion or disability), the employee might consider punishment or discrimination.
Significant Signals Disguised as Minor Clarifications? EEOC’s Updated Guidance on COVID-19 and Religious Accommodations Provides Further Insight | JD Supra
By now, many employers have received requests for religious accommodations from COVID-19 policies—primarily vaccination policies. The Equal Employment Opportunity Commission’s (“EEOC”) guidance thus far, as reported through prior blogs, has remained largely consistent with pre-COVID-19 religious accommodation law.
[Webinar] Employment Law: It’s Time for Your State-Law Checkup - January 28th, 9:00 am - 10:00 am MST | JD Supra
January 28th, 2022 9:00 AM - 10:00 AM MST Join us for a review of important state-level legal changes and trends affecting employers, including a look back at recent developments you may have missed. FEATURED SPEAKERS: Amy Knapp, Beth Ann Lennon, & John Terry Melcon Please contact events@shermanhoward.com with additional questions. JOINING INSTRUCTIONS: Instructions will be sent out in advance of the webinar. CONTINUING LEGAL EDUCATION: Continuing Legal Education accreditation is currently pending.
Don’t Go Down with the Ship: Sham Review Process Sinks Navy’s Religious Exemption Policy | JD Supra
In one of the more notorious challenges to COVID-19 vaccine mandates, a group of Navy Special Warfare servicemembers filed suit after the Navy denied their requests for religious accommodations. Last week, a federal court upheld the servicemembers’ challenge, characterizing the Navy’s religious exemptions process as mere “theater.” Employers faced with workers’ requests for religious accommodations—whether few or many—should take note to avoid being called out for similar charades.
Court Blocks Federal Vaccine Mandate for Health Care Workers | JD Supra
A district court has halted the federal vaccine mandate applicable to millions of workers in Medicare- and Medicaid-certified health care facilities, preventing the mandate from going into effect in ten states. The Missouri-based court ruled that the mandate at issue likely exceeds the authority delegated by Congress to the Secretary of Health and Human Services.
Political Dissent or Personal Preference Not a Basis for Religious Exemption from Vaccine Mandates | JD Supra
On October 25, 2021, the EEOC updated—again—its COVID-related “What You Should Know” technical assistance webpage. (See post regarding previous revisions.) This time, the EEOC added a handful of Q&As regarding religious objections to employer COVID vaccine mandates under Title VII. The EEOC clarified an issue many employers have been grappling with during the pandemic: An employer need not accommodate an employee’s vaccine objection when the objection is not based on a religious belief.
‘What God Has to Say about Our Bodies,’ ‘Embodied,’ ‘Wonderfully Made’
My body has been a gift and a torment to me. Some of my earliest boyhood memories are of throwing stones from the shore of Lake Superior far into the incoming waves. I had so much joy in the slingshot that God had given me for a left arm. My body also produces stones, kidney stones, and gallstones. These have caused excruciating pain, not to mention costly medical interventions. Our bodies are both gift and gall. They aid and ail us in ways that are deeply moral.
How an Unlikely Church Is Reaching Refugees
When Guy-Fleury Yedidiah landed at Dulles Airport, he was supposed to tell the customs officials he was on vacation. But the 20-year-old was scared to death—in reality, he was fleeing the Burundian government. Over the past several years, they had killed his grandma and shot at him because of his father’s work as a journalist. His family’s plan was for Yedidiah to escape into the United States on a tourist visa, then board a flight to his aunt and uncle in Canada.
What Was Martin Luther’s Breakthrough?
On October 31 we will celebrate the 504th anniversary of the day Martin Luther made his 95 theses public. But what exactly was Luther’s breakthrough? What realization did he come to that set the Western world on a course that would break the stranglehold of Roman Catholic authorities, produce Bibles in languages people could read, raise literacy rates across Europe, and birth thousands of new Christian denominations?
4 Ways to Cultivate Missional Prayer as a Family
My 4-year-old son clasped his hands together and squeezed his eyes shut. He scrunched up his face with intense focus. In his sweet little voice he prayed, “God, please send dreams about Jesus to Muslims. Amen.” He uttered the last word emphatically. My heart soared. Few things bring me more delight than hearing my boys pray—unprompted—for people across the world who don’t know Jesus yet.
Did Jesus Christ Have a Fallen, Sinful Human Nature?
That the Son of God assumed or took on human flesh in what we call the incarnation is beyond dispute in orthodox Christian belief. But what kind of “flesh” did the Son of God assume unto himself when he became human? Was it fallen, sinful flesh, like yours and mine? Or was it unfallen flesh, devoid of the inherent sinful impulses that we all experience? In other words, were the temptations that Jesus encountered (Heb.
I Was Discipled by . . . the Church
Somewhere along the way I picked up the idea that discipleship was about finding one mentor who could, with his wit and wisdom, heal my wounds and bring me closer to Jesus. I thought there’d be notebooks, coffee, and in-depth Bible studies. I imagined he’d be older, wiser, and profoundly interested in my life. Maybe you’ve found that kind of person—if so, great. But here is what actually happened: I was discipled by the church. My regular old normal church. I showed up and heard sermons.
How a Husband Isn’t Like Christ
A few weeks ago, I started reading a favorite book from childhood to my 5- and 3-year-old sons. Days on the Farm with Annette and Samuel is their first chapter book, and each evening my oldest son patiently waits for me to finish a section so he can study the simple line drawing that accompanies each story.
Review: ‘Letters of John Newton’ by John Newton
When a fellow pastor showed up at a meeting this summer wearing a T-shirt with the saying “No more drama,” I burst out laughing. It felt like so many pastors’ slogan in 2021, deep into a global pandemic: please, let’s tone down the drama. I love pastoring. To help people embrace faith, grow in character, and face real suffering never fails to edify me.
Faith & Work: How Can Pastors Encourage Congregants in Their Work Life?
How can pastors and congregants connect better over work? There are several ways that pastors and congregants can connect better over the topic of their work. Maybe just a quick vision casting or why… I think about my dad, a faithful churchgoer for 30 years, 40 years, 50 years, more than that, and the high school superintendent. He gave, he tithed regularly. He showed up to all the functions. He was a good member of his small church.
How God Helped Me Cope with Depression
We live in a world of pain, anguish, and torment, even though we only get glimpses of it—unless perhaps we work as a counselor or in emergency services. All around us are people in silent pain because of something in their nagging past, their anguishing present, or their dreaded future. Depression is no respecter of persons. Even one’s philosophical or religious views don’t seem to offer either immunity or susceptibility. Neither can depression be blamed on the modern technological age.
Ask the Economist: Should a Christian Invest in Bitcoin?
What can you tell me about Bitcoin? It sounds like monopoly money. Is it real? Is it safe to use? How can I think about it as a Christian? One of the biggest stories in financial markets in the last decade is the astronomic rise of Bitcoin and other cryptocurrencies. Some people think cryptocurrencies will revolutionize our world. Others think it’s a fraud. We need some basic economics to understand what is at stake.
Why Your Employer Can Deny Your ‘Religious’ Vaccine Exemption
I care deeply about religious liberty. As an attorney, I spend much of my time helping religious organizations understand and maximize constitutional protections and religious exemptions. But my passion for religious liberty is exactly why I’m concerned about the wave of requests for so-called religious exemptions from employer vaccine mandates—requests that pastors around the country are being asked to write or approve.
Seventh Circuit Expands Ministerial Exception To Hostile Work Environment Claims | JD Supra
Sitting en banc, the Seventh Circuit in Demkovich v. St. Andrew the Apostle Parish, No. 19-2142 (July 9, 2021), held that the so-called “ministerial exception” bars hostile work environment claims alleging minister-on-minister harassment. Previously, a three-judge panel of the same court ruled that the ministerial exception—which arises from the religion clauses of the First Amendment—applies to employment discrimination claims but not necessarily hostile work environment claims.
EEOC Issues Guidance Addressing Transgender Bathroom And Pronoun Policies | JD Supra
The EEOC marked the one-year anniversary of Bostock v. Clayton County—the landmark Supreme Court decision holding that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of sexual orientation and gender identity—by issuing informal guidance outlining workplace protections for LGBTQ individuals. Among other things, the guidance addresses issues related to bathroom use and pronouns for transgender workers.
Supreme Court’s LGBTQ Foster Care Decision Offers Little Clarity For Religious Employers | JD Supra
In Fulton v. City of Philadelphia, No. 19-123 (June 17, 2021), the Supreme Court unanimously ruled in favor of Catholic Social Services (CSS), holding that the “City of Brotherly Love” unconstitutionally excluded CSS from the City’s foster care licensing scheme based on the agency’s traditional religious beliefs about marriage.
Comparators Still Required In Gender-Identity Discrimination Cases | JD Supra
Last week, the Fifth Circuit issued a reminder that although the Supreme Court’s recent landmark decision in Bostock v. Clayton County held that the sex discrimination prohibited under Title VII includes discrimination on the basis of sexual orientation or gender identity, one thing Bostock didn’t do was change the legal elements required to prove discrimination.
Ninth Circuit Dumps Truckers’ Challenge To California’s New Independent Contractor Test | JD Supra
In a previous post, we talked about California shifting gears to the so-called “ABC test” for determining whether a worker is an employee or independent contractor in a law called “AB-5.” Compared to California’s previous standard, the ABC test classifies far more workers as employees. However, a provision in AB-5 says that where the ABC test can’t be applied in a particular context—because a court says so—California’s former “Borello” standard kicks back in.
Seventh Circuit: No Need For Walmart To Accommodate Religious Manager’s Schedule | JD Supra
Applying the Supreme Court’s longstanding rule that Title VII requires employers to accommodate religious practices unless doing so would impose more than a “slight burden,” the Seventh Circuit Court of Appeals rejected a Seventh Day Adventist’s claim that Walmart wrongfully refused to accommodate his inability to work on Saturdays in EEOC v. Walmart Stores East, L.P., No. 20-1419 (7th Cir. Mar. 31, 2021).
When Is Your Employee Handbook A Contract? | JD Supra
Many employers attempt to write their employee handbooks to avoid creating contractual obligations toward workers. But as the City of Plainview, Minnesota, recently discovered, this isn’t always easy to accomplish.
Ministerial Exception Doesn’t Cover Christian College Professors, But Does Cover Catholic School Principals? | JD Supra
Even after the Supreme Court’s recent decision that the so-called “ministerial exception” barred employment discrimination claims brought by a pair of Catholic school teachers, lower courts continue to wrestle with the scope of this exception in the religious education context.
Adverse Action Required In Religious Failure-To-Accommodate Claims? | JD Supra
A federal district court in Colorado has reaffirmed that an adverse employment action is required to state a religious failure-to-accommodate claim under Title VII, notwithstanding the Tenth Circuit’s recent en banc ruling that an adverse action is not required for failure-to-accommodate claims in the disability context (see previous post).
DOL Promises To Roll Back Protections For Religious Federal Contractors | JD Supra
Last week, the U.S. Department of Labor (DOL) filed a notice in federal court announcing that it “intends to propose rescission” of a controversial 2020 rule broadening religious exemptions under Executive Order 11246 for certain federal contractors. The notice was filed in response to a lawsuit by several states—Colorado among them—challenging the rule as arbitrary and capricious.
EEOC Updates Guidance On Religious Discrimination And Exemptions For Religious Employers | JD Supra
The Equal Employment Opportunity Commission voted on January 15, 2021, to finalize long-awaited revisions to its Compliance Manual covering religious bias in the workplace and addressing protections for religious employers. The revised guidance—last updated in 2008—takes into account recent court decisions and flags a handful of emerging issues. The lion’s share of the changes to the Compliance Manual relate to protections for religious employers.
OFCCP Addresses Protections For Workers With Controversial Religious Views | JD Supra
On January 8, 2021, the Office of Federal Contract Compliance Programs, which enforces Executive Order 11246, published an opinion letter clarifying workplace religious liberty protections for employees whose religious views might be considered controversial or offensive. Among other requirements, EO 11246 makes it unlawful for federal contractors and subcontractors to fail to provide reasonable religious accommodations absent a showing of undue hardship.
Consolidated Appropriations Act, 2021: Key Unemployment Provisions | JD Supra
The federal government used the recent new stimulus bill to extend assistance to the COVID unemployed. The programs created to provide new or supplemental unemployment benefits have been extended into March and possibly beyond, and the stimulus bill created additional benefits for some workers. Employers should refresh their understandings of these programs, how they affect departing employees, and how available unemployment benefits play into employment retention decisions...
DOL Says Ministerial Exception Applies To FLSA Claims | JD Supra
In Opinion Letter FLSA2021-2, issued on January 8, 2021, the U.S. Department of Labor (DOL) confirmed that the so-called “ministerial exception” applies to the wage-and-hour requirements of the Fair Labor Standards Act (FLSA). Ordinarily, the FLSA requires that employers pay their covered employees a minimum wage for each hour worked, as well as an overtime premium when an employee works more than 40 hours in a week, and exempts certain executive, administrative, and professional employees.
Federal Tax Credits May Be Available For 2021 Colorado Public Health Emergency Leave | JD Supra
On December 23, 2020, the Division of Labor Standards and Statistics in the Colorado Department of Labor and Employment (“CDLE”) announced that all Colorado employers must supply up to 80 hours of Public Health Emergency Paid Sick Leave (“PHE leave”) to employees beginning January 1, 2021, pursuant to the Healthy Families and Workplaces Act (“HFWA”). Read our Advisory about this new guidance here.
Tenth Circuit Reverses Itself: Adverse Action Not Required To State ADA Failure-To-Accommodate Claim | JD Supra
Sitting en banc, the Tenth Circuit Court of Appeals recently ruled that an adverse employment action is not a required element of a failure-to-accommodate claim brought under the Americans with Disabilities Act (“ADA”). In Exby-Stolley v. Bd. of Cty. Comm’rs, No. 16-01412 (10th Cir. Oct.
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