We have seen that, from a conservative perspective, the Alex Acosta Department of Labor is bad on immigration, bad on equal pay, and weak on at least one important wage and hour law issue. Now we learn that it is also bad on religious liberty.
We learn this from the case of Acosta v. Cathedral Buffet, Inc.; Ernest Angley. In this action, the Department of Labor sued a restaurant operated by the Grace Cathedral church in Cuyahoga Falls, Ohio. It claimed that the church and its minister Ernest Angley violated the federal Fair Labor Standards Act by not paying the minimum wage to church members who volunteered as workers at the restaurant.
The Obama administration DOL initiated the lawsuit, but Acosta’s DOL continued to pursue it. Indeed, as recently as last December it defended the action in the oral argument of an appeal by the church from a district court’s ruling.
Fortunately, the U.S. Court of Appeals for the Sixth Circuit ruled against the Acosta DOL in a unanimous decision. It reversed the district court, which had awarded nearly $400,000 against the defendants.
The U.S. Supreme Court has made it clear that to be considered an employee within the meaning of the FLSA, and thus be entitled to the minimum wage, a worker must first expect to receive compensation. It was undisputed that the volunteers who worked at Cathedral Buffet had no such expectation.
The Acosta DOL tried to argue its way around this problem by saying that Rev. Angley “coerced” church members into volunteering for work at the restaurant. He told church members that the restaurant was “the Lord’s buffet,” and that “[e]very time you say no [to working there], you are closing the door on God.” He also suggested that church members who repeatedly refused to volunteer were at risk of “blaspheming against the Holy Ghost,” an unforgivable sin. A church member testified that she volunteered to work because she “feared failing God.”
The Sixth Circuit rejected the Acosta DOL’s position that these facts mean the church volunteers are entitled to pay. It agreed that in some circumstances, a showing of coercion might be sufficient to overcome a volunteer’s lack of expected compensation and bring her within the protections of the FLSA. It concluded, however, that these circumstances are not present in this case because the type of coercion the FLSA is concerned with is economic in nature, not societal or spiritual.
In a brilliant concurring opinion, Judge Kethledge ripped the Acosta DOL. He wrote:
One hopes that the Department of Labor simply failed to think through its position in this case. Since initiating this litigation in 2015, the Department has argued. . .that volunteers at the Cathedral Buffet were in fact employees under the Fair Labor Standards Act because, the Department says, their pastor spiritually “coerced” them to work there.
That argument’s premise—namely, that the Labor Act authorizes the Department to regulate the spiritual dialogue between pastor and congregation—assumes a power whose use would violate the Free Exercise Clause of the First Amendment.
All in a day’s work for federal bureaucrats at Alex Acosta’s DOL.
To accommodate those who want easy access to Judge Kethledge’s stellar opinion, I present it below with only a few small edits:
By way of background, the Grace Cathedral Church operated the Cathedral Buffet, a nominally for-profit corporation that in fact never turned a profit, and that the church heavily subsidized (by more than $1 million between 2012). Instead, the record makes clear, the Buffet’s purpose was to allow the church’s members to proselytize among local residents who dined there. Although the Buffet had 35 full-time employees-all of whom, incidentally, have lost their jobs as a result of this lawsuit-much of its work was performed by volunteers from the congregation.
In the district court, the Department obtained injunctive relief and about $388,000 in damages on the theory that these congregants were employees (rather than volunteers) under the Act. Normally that determination is governed by economic criteria; whether the workers are economically dependent upon the defendant, whether the defendant can hire or fire them, whether the defendant substantially controls the terms and conditions of the work. [Citations omitted]
Here, per those criteria, the congregants are not employees, as our opinion today makes clear. But here the Department has divined spiritual criteria as well: “during Church services[,]” the Department contends, Rev. Angley “exerted undue pressure and influence upon the volunteers” by telling the congregation that a failure to volunteer would be “the same as failing God,” and that “God is not pleased with congregants who did fail.” Gov’t Br. at 40. Thus, the Department says, putative spiritual coercion can be a stand-alone basis for fines and injunctive relief under the Act.
One can agree that the Reverend’s comments were in poor taste, and yet see that the Department has no business regulating them. For the power that the Department purports to exercise here is out of bounds even under Employment Div. v. Smith, 494 U.S. 872 (1990). There, of course, the Court held that a neutral law of general applicability does not violate the Free Exercise Clause when the law burdens religious exercise only incidentally. . . . But here. . .the Department seeks to regulate spiritual conduct qua spiritual conduct, and to impose significant liability as a result.
The very criterion by which the Department would impose liability is expressly spiritual. Hence this is not a case, like Smith, where illegal conduct (there, smoking peyote) remained illegal even though it was religiously motivated. Instead, the Department’s position here is that otherwise legal conduct-such as volunteering at a church restaurant-becomes illegal if the worker’s pastor spiritually pressures her to engage in it. (Under this regime, one supposes, whether a pastor can invoke the Book of James-“a person is justified by works and not by faith alone[,]” James 2:24-might be determined on a case-by-case basis) The Department’s actions therefore “target religious conduct for distinctive treatment[,]” [citations omitted] and their burdens upon religious exercise would come by the design.
Nor is the Department even competent to make the spiritual judgment it purported to make here. “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith or the validity of particular litigant’s interpretations of those creeds.” Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 699 (1989). That same idea of centrality perforce lies beneath any judgment about spiritual coercion. And bureaucrats are no better than judges at making that judgment. Hence it is beyond the ken of federal agencies, or the courts, to determine that congregants were spiritually coerced even though the congregants themselves say they were not-which is what 134 members of Grace Cathedral said under oath here.
Thus, the coercion that matters is not anything that Rev. Angley said to his congregation on a Sunday morning. What matters, rather, is the Department’s own attempt to coerce religious leaders-of any faith-not to exhort their followers on spiritual grounds to engage in conduct that is otherwise legal. For “the Free Exercise Clause protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” [Citations omitted]
The coercion here would take the form of a check in the amount of $388,507.90, “payable to ‘United States Department of Labor-Wage and Hour Division[.]'” Judgment and Order Regarding Injunction at 2. That coercion affects not only Rev. Angley-who along with the Buffet was ordered to pay that amount-but also the congregants themselves; since, even if they return any moneys to Angley or the Buffet, “Defendants shall immediately remit such amount to the U.S. Department of Labor[.] Id. at 3.
What is perhaps most troubling about the Department’s position in this case, however, is the conceit of unlimited agency power that lies behind it. The power of a federal agency is no more than worldly. The Department should tend to what is Caesar’s, and leave the rest alone.