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U.S. Supreme Court: Religious Institutions Can Discriminate Against Employees

U.S. Supreme Court: Religious Institutions Can Discriminate Against Employees

If you work for a religious institution, you may not have any protection against discrimination or harassment at work. Normally, federal laws such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, and state laws like New Mexico’s Human Rights Act, forbid discrimination based on race, national origin, gender, age, sexual orientation, and disability.  In Our Lady of Guadalupe School v. Morressey-Berru, ___ S.Ct. ___, the United States Supreme Court held last week that religious institutions can discriminate against its lay school teachers without any legal consequence.  These groups have a right to decide matters of “church government” without government interference.  The Court interpreted employment decisions as the kind of “internal management decisions” that are protected under the First Amendment of the Constitution.  It also provided a new framework for looking at these claims that will make it harder for employees to bring any kind of discrimination or harassment claim against religious institution employers in the future.

In the past, courts would look at a series of factors to decide whether an employee fell under a “ministerial exception” or not. If the employee was a “minister,” then the courts would not intervene in a religious institution’s employment decisions, regardless of whether there was blatant discrimination or otherwise unlawful harassment.  In the Our Lady of Guadalupe School case, the Supreme Court made it clear that it will not apply any “rigid test” to determine whether or not someone is a “minister.”  Instead, the Court explained that future cases will allow an employer to present “all relevant circumstances” to determine whether or not the employee is sufficiently involved in the organizations’ ministry in a particular religion.

As Justices Sotomayor and Justice Ginsburg explained in their dissent, this decision will expose thousands of religious school teachers to discrimination and harassment without consequence.  For example, a woman can be forced to endure sexual harassment, a man may be harassed for contracting cancer, and a person who expresses their LGBTQ identity may be fired on the spot.

In Our Lady of Guadalupe School, both employees were elementary school teachers who were “lay” teachers, not formal ministers.  One sued her employer for age discrimination, and the other sued for disability discrimination. Because both of them had some duties that involved teaching religious education to their students, the Court decided that they qualified as “ministers” and could not sue their employers for discrimination.  It did not matter to the Court that these teachers mostly taught non-religious subjects, had no religious title or significant religious training.  Also, the Court didn’t question how the employer decided whether the teachers were important to their ministerial mission.  This could lead to the loss of protection for religious school janitorial staff, bus drivers and cafeteria workers if they are classified as “ministerial” employees as well.

Contact Deena Buchanan to schedule a consultation at (505)900-3559

Contact Deena Buchanan to schedule a consultation at (505)900-3559

The Buchanan Law Firm represents employees in discrimination and harassment cases and provides counsel to employers who have questions about legal compliance.  If you have questions about how this decision may affect you, call us at (505) 900-3559. New York City office: (212) 583-7400

Employers Beware: Breaking Wage Laws May Be On Your Own Dime

Court Rules Insurance Did Not Apply to Wage Claims

Albuquerque, New Mexico Attorney: Deena Buchanan

Breaking Wage LawsWhen employers are sued for breaking wage and hour laws, they face both the high costs of defending themselves in litigation, plus potentially crippling damages awards to the employees. Some employers believe that if they purchase Employment Practices Liability Insurance (“EPLI”) or other kinds of business liability insurance, that their insurance company will pick up the tab.  Not so, for a California employer who was recently sued in a class action lawsuit that alleged it didn’t pay its employees for not paying overtime, minimum wage, and for meals and rest breaks as required by California law and the federal Fair Labor Standards Act.

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While this case does not govern in New Mexico, it provides a very important lesson to all employers.  While EPLI coverage is important and can provide both legal costs and payment of various employment claims, not all claims are covered. The language of each insurance policy is critical, and New Mexico courts will examine the policy language carefully to determine whether there is insurance coverage for a disputed claim.  Wage and hour claims are often excluded from these policies because they are so expensive.  The bottom line: employers should make sure they comply with all wage and hour laws, and if they do not, the risk may be on them.

Buchanan Law Firm represents employees and counsels employers on wage and hour matters.  If you have questions about your rights or obligations under wage and hour rules, call us at 505-900-3559.

Family First Coronavirus Response Act (“FFCRA”) Leave

The United States Department of Labor’s Wage Hour Division: FFCRA

Family First Coronavirus Response Act (“FFCRA”) Rules on Parental Leave Due to Summer Camp Closures

Parents now may be entitled to leave due to summer camp or summer enrichment program closures. The United States Department of Labor’s Wage Hour Division announced new guidance today for families who need to take leave under the Family First Coronavirus Response Act (“FFCRA”) due to summer camp closures during the COVID-19 pandemic.  Read the full guidance here for more information.

Family First Coronavirus Response Act (“FFCRA”) due to summer camp closuresUnder the FFCRA leave, eligible parents may take up to two weeks of paid sick leave and up to twelve weeks of expanded family and medical leave (10 weeks of this may be paid).  This depends upon whether the employer is covered by the FFCRA.  Parents may qualify for this leave if they are unable to work or tele-work because their child’s school or childcare provider is closed.  The FFCRA also applies to summer camps and summer enrichment camps, but employees must provide the employer with some detailed information as to why this care is not available to them. Read More

Contact Deena Buchanan to schedule a consultation at (505)900-3559

Contact Deena Buchanan to schedule a consultation at (505)900-3559

In general, employees who request FFCRA leave must tell their employer they need the leave.  They need to give a statement as to why they need the leave, and why they are unable to work.  Additionally, the employee must give the name of their child, the name of the school or “place of care”, and a statement that there is no other suitable person available to care for the child.  See 29 C.F.R. Section 826.100(e). Read More

LGBTQ discrimination is now illegal under Title VII

 LGBTQ discrimination is now illegal under Title VII. The U. S. Supreme Court Supreme Court: federal law protects LGBTQ workers from discrimination

LGBTQ discrimination is now illegal under Title VII. The U. S. Supreme Court issued its opinion in Bostock v. Clayton County today, confirming the law of the land. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” For many years, courts debated whether sexual orientation was protected under the sex discrimination rules.

States like New Mexico had resolved this question on their own by specifically outlawing discrimination and harassment based on “sexual orientation” and “gender identity” in state laws like the New Mexico Human Rights Act. While the EEOC had issued guidance in 2015 that sexual orientation discrimination was prohibited under the Civil Rights Act,  many federal courts refused to enforce the law that way because there was no guidance from the Supreme Court. The Supreme Court resolved all doubts today when it held that this discrimination is illegal under federal law.  Employers must now treat all LGBTQ individuals equally in the workplace or risk federal lawsuits and EEOC enforcement.

Buchanan Law Firm can help you understand your rights and obligations under Title VII and state discrimination laws. Call us for an appointment today (505)900-3559.

Getting ready to reopen your business in Albuquerque, New Mexico?

ABQ attorneys offer these tips for dealing with Covid-19 liability issues:

By Collin Krabbe  – Technology reporter , Albuquerque Business First, May 18, 2020,

A few months ago, if you had asked Albuquerque business attorney Larry Donahue if an illness such as the flu would open your company to legal liabilities, he would have offered a short response. Read More

Deena-Buchanan-New-Mexico-employment-personal-injury-medical-malpractice-lawyerWhile many business owners may be eager to get employees back to work, not taking the right precautions could be costly, especially if people start becoming infected. In the event of a wrongful death suit, damages “can easily be in the millions,” said Albuquerque employment attorney Deena Buchanan, managing partner at Buchanan Law Firm.


Here are the top tips from three Albuquerque attorneys on mitigating the risk of being sued by an employee or customer after reopening:

1) “Consider the state guidelines as the floor, not the ceiling,” to protect yourself from someone who says they caught coronavirus at your business.

  • In addition to the state’s measures, businesses that reopen during the pandemic should work to find solutions specific to their operation that may further stop the spread of coronavirus, said Buchanan.
  • “The question is whether you are taking reasonable precautions,” she said. “You also have to think about how your individual business works.”
  • Businesses where people are in close contact — such as salons and gyms — may be able to reduce liability by using virtual payment tools and closing off sections of an indoor space, Buchanan said.

2) Read — and understand — Families First Coronavirus Response Act.

  • The federal FFCRA requires some employers to provide employees with paid sick or expanded family and medical leave for certain reasons related to the coronavirus.
  • If an employee is quarantined or experiencing symptoms and seeking a diagnosis, employers must provide two weeks of paid sick leave at the employee’s regular rate of pay, according to the U.S. Department of Labor.
  • If an employee needs to care for an individual being quarantined, or child whose school or care provider is unavailable because of reasons related to the coronavirus, employers must provide two weeks of paid sick leave at two-thirds the employee’s regular rate of pay, according to the FFCRA. Those caring for a child are eligible for up to an additional 10 weeks of paid expanded family and medical leave.
  • The law applies to “certain public employers, and private employers with fewer than 500 employees,” according to the DOL.

3) Keep an “incident log,” which will strengthen your case in the courtroom.

  • Being able to provide a log of every coronavirus-related incident — like that time you asked an employee or customer to leave because they seemed ill — will bode well for your business in court, Donahue said.
  • “Usually when there is a lawsuit, the facts are often disputed,” said Donahue. A log “allows the business to prove when [an incident] actually happened, what was actually said and what was really done.”

4) Make sure any incidents are reported to the right authorities, and be conscious of employee privacy.

  • Employers will want to make sure they report all incidents of Covid-19 exposure to the correct authorities, said Albuquerque employment lawyer and University of New Mexico lecturer Amelia Nelson.
  • Certain entities can disclose health information without an individual’s permission if doing so is necessary to protect the public health, according to the U.S. Department of Health and Human Services.
  • Nelson expects the laws regarding the disclosure of health information to change as the economy reopens, and said companies should consult with a legal professional before taking action.