FLSA and Weather Issues; The

Supreme
Court
Religion
Discrimination Decision
By: Lawrence P. Postol, Vice President For Legislative Affairs
Lpostol@seyfarth.com
FLSA and Weather Issues: When The Office Is Closed, Which Workers Do You Have To Pay
In the wake of Houstons recent flooding, countless businesses closed their doors, and
many individuals are coping with homes in disrepair. This is hardly the first time mother nature
has affected business. Snow, hurricanes and floods happen all too often, and business cannot
open, or the employees cannot get to work. So what does the Fair Labor Standards Act require
as far as paying workers?
Rules for Exempt Employees
Closed For Business. An office closure may not affect the salary of an exempt employee.
If the office is closed, employers may not make deductions from an exempt employees salary.
However, employers may require that exempt employees take vacation or paid time off (PTO)
to make up that time. If an employee does not have vacation or PTO days available, the
employer can allow her to take the PTO or vacation day anyway and make it up at a later time.

Open For Business. If the office is open, and the exempt employee decides to stay home,
employers may deduct that days wages from his pay without violating the salary-basis. Full day
absence deductions are allowed, but partial day absences and deductions are NOT allowed. If
the employee works any portion of the day, then the employer must pay him as though he
worked a full day. This includes any work performed remotely.
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Rules for Non-Exempt Employees

Whether the office is open or closed, employers are only required to pay non-exempt
employees for hours worked. However, inclement weather often results in traffic delays. If the
employee works during the delay (by taking phone calls or answering emails, for example), then
she must be compensated for time worked. But not all situations are as clear-cut. Consider, for
example, an employee who is stranded in an employers vehicle and instructed to safeguard the
vehicle. Or consider an employee who is instructed to transport or retrieve employees or
company goods and gets stranded during the storm. In each of these situations, it is likely that
the DOL or a court would later find that all of the time while the employee was stranded was
compensable time. The cost of defending the claim and then paying the amount owed would
exceed the cost of simply paying the amount in the first place. In these special circumstances, it
makes legal and practical sense to pay employees for this time.
Employees Who Volunteer For Clean-Up Or Recovery Work
It is an unfortunate truth that businesses are sometimes reduced to wreckage during
inclement weather. Some are fortunate enough to also experience the goodwill of employees
ready to help the company rebuild. Exempt employees who volunteer to help will not be entitled
to any additional compensation beyond their salary. But remember that too much time spent on
manual tasks or other tasks unrelated to their regular job duties could invalidate their exempt
status and allow them to collect overtime compensation.
Non-exempt employees must be paid for all time worked, even if they offer to work for
free, with one exception. Employers may accept free work from employees of government or

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non-profit agencies who volunteer out of public-spiritedness to perform work that is not at all
similar to their regular duties.
Impact of the Supreme Courts Ruling in EEOC v. Abercrombie & Fitch
On June 1, 2015, in a 8-1 ruling, the U.S. Supreme Court sided with the EEOC in the
religious discrimination case of EEOC v. Abercrombie & Fitch Stores, Inc. The Court recognized
that Title VII prohibits a prospective employer from refusing to hire an applicant in order to
avoid accommodating a religious practice that could be accommodated without undue hardship.
The Court then framed the question presented as whether this prohibition applies only where an
applicant has informed the employer of his need for an accommodation. The Supreme Court
answered No.
The Court rejected Abercrombies argument that an applicant cannot show disparate
treatment without first showing that the employer had actual knowledge of the applicants need
for accommodation. Instead, the Court held that an applicant need only show that his need for
an accommodation was a motivating factor in the employers decision. The Court held that the
rule for disparate-treatment claims based on a failure to accommodate a religious practice is
straightforward: An employer may not make an applicants religious practice, confirmed or
otherwise, a factor in employment decisions. Put another way - not ask, dont tell, does not
work for religious accommodations.
The Facts
Teenager Samantha Elauf, a Muslim who wore a headscarf for religious reasons, applied
for a sales floor position in an Abercrombie store. At the job interview, to which she wore the
headscarf, Ms. Elauf said nothing about the fact that she was Muslim. In the interview, she did
not bring up the headscarf, or say that she wore it for religious reasons, that she felt a religious

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obligation to do so, or that she would need an accommodation from the retailers Look Policy.
But her interviewer assumed that Ms. Elauf was Muslim, and wore the head-covering for
religious reasons and that influenced the companys decision not to hire her.
The Courts Below
The district court granted summary judgment for the EEOC but the Tenth Circuit
reversed and granted summary judgment to Abercrombie. The Tenth Circuit held that the burden
is on the applicant to advise the employer of a religious practice that conflicts with a job
requirement, because the applicant is uniquely qualified to know those personal religious beliefs
and whether an accommodation is necessary. The appeals court rejected the EEOCs argument
that the employer has a duty to attempt reasonable accommodation when the employer has notice
of the conflict from any source.
The Supreme Courts Analysis
In reaching its holding that an applicant need only show that his need for accommodation
was a motivating factor in the employers decision, the Court relied primarily on an analysis of
Title VIIs text.
The Court reasoned that Title VIIs disparate-treatment provision prohibits an employer
from using an applicants religious practice as a motivating factor in failing to hire the applicant.
The Court noted that Title VII does not impose a knowledge requirement, and declined to add
words to the law. Instead, the Court reasoned that the statutes intentional discrimination
provision prohibits certain motives, regardless of the employers knowledge.
In distinguishing between motive and knowledge, the Court held that an employer who
had actual knowledge of the applicants need for a religious accommodation, but did not have
that as a motive for refusing to hire the applicant, would not violate Title VII. By contrast, an

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employer whose motive in refusing to hire is the desire to avoid an accommodation even if
based on no more than an unsubstantiated suspicion that accommodation would be needed
may violate Title VII.
The Court acknowledged that if the applicant requested an accommodation, or the
employer was certain that the applicant followed a practice that would require accommodation, it
may be easier to infer motive, but held that neither is required for liability.
But the Court buried an important caveat in a footnote, declining to reach the question of
whether the motive requirement can be met without a showing that the employer at least
suspects that the practice in question is a religious practice. The Court ducked the question
because it was undisputed here that Abercrombie at least suspected that Ms. Elauf wore the hijab
for religious reasons.
Sidestepping Abercrombies concerns that without an actual knowledge requirement,
employers will be forced to ask about religion, or engage in stereotyping, the Court offered an
example that highlights the practical pitfalls for employers. The Court posited an employer who
thinks, but does not know for sure, that an applicant may be an orthodox Jew who will observe
the Sabbath and avoid Saturday work. In that case, the Court held, if the applicant actually
required the accommodation, and the employers desire to avoid it was a motivating factor in not
hiring the employee, the employer would violate Title VII.
The Court rejected Abercrombies defense that its Look policy was a neutral policy that
could not be discriminatory, emphasizing that Title VII demands more than mere neutrality with
regard to religious practices. The Court also rejected Abercrombies position that a claim based
on failure to accommodate an applicants religious practice must be raised as a disparate-impact,
rather than a disparate-treatment, claim.

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Concurrence & Dissent

Justice Alito concurred primarily to opine that he would hold that an employer cannot be
held liable for taking an adverse action because of an employees religious practice unless the
employer knows that the employee engages in the practice for a religious reason the question
the majority sidestepped. Only Justice Thomas dissented, reasoning that Mere application of a
neutral policy cannot constitute intentional discrimination, and therefore that the EEOC could
not advance a disparate-treatment claim in this case.
What Should Employers Do Now?
There is still a lot of wisdom in the longstanding advice to employers to avoid asking
applicants about religion, or making assumptions based on stereotypes. But in light of this
decision, an employer who has any reason to believe, or even suspect, that accommodation may
be necessaryfrom any sourcewill need to consider engaging in an interactive process with
the applicant.
Depending on the circumstances, that process may entail explaining to the applicant the
relevant work rule, inquiring as to whether the applicant could comply with the rule or would
require an accommodation, and analyzing whether any required accommodation is reasonable or
would impose an undue hardship.
Employers should consult counsel who specializes in this area for guidance on how to
meet the obligations imposed by the Courts ruling while minimizing the risk of other claims, as
well as ensuring compliance with state or local religious discrimination laws, which can vary
from federal law.

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Finally, employers should update their internal hiring practices training to ensure that
hiring managers and interviewers are aware of best practices following the Supreme Courts
ruling.

2015 by Lawrence Postol

Mr. Postol is the Vice President for Legislative Affairs on the NOVA SHRM
Board, and a partner in the Washington, D.C. office of Seyfarth Shaw LLP. If you
have any questions about the information in this article, you may e-mail Mr. Postol
at Lpostol@seyfarth.com or call him at 202-828-5385.
Disclaimer: This newsletter does not provide legal or other professional
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