Attorneys argue over exemption of religious preschool teachers from labor laws

LOS ANGELES -- Attorneys for the state and a Jewish temple school clashed Tuesday over whether a trial court properly exempted the school's teachers from labor code requirements under the common law "ministerial exception" for religious organizations.

Following complaints by teachers at a preschool operated by Stephen S. Wise Temple in Bel Air, the California labor commissioner sued, alleging lack of meal breaks, overtime, and other labor violations.

The temple successfully moved for summary judgment under the ministerial exemption, which shields religious organizations from certain laws when enforcement would impinge on First Amendment protections for religious practices. The state appealed that decision by Los Angeles County Superior Court Judge Ernest Hiroshige.

David M. Balter, appearing for the state before a 2nd District Court of Appeal panel, made a two-fold argument that the teachers are not ministers and that the enforcement of wage laws does not tread on an organization's religious functions anyway. Thus, he said, the exception does not apply.

Though there are religious elements to the curriculum, the teachers are not ministers and they do not perform core religious functions, Balter argued.

"The state believes that is a false conflict," he said. "The state of California isn't coming in here saying teachers have to eat pork on lunch breaks."

Balter, who is assistant chief counsel for the state's Division of Labor Standards Enforcement, added the school employs teachers who are not Jewish and some who are not religious at all. Further, he said in briefs and oral arguments, the temple does not present teachers at the preschool as spiritual leaders.

Appearing for the respondents, Jeremy Rosen of Horvitz & Levy LLP pointed to the fact that teachers are given materials to teach children about religious holidays, receive guidance from rabbis, and partake in required meals on holidays. These details, among others, make them ministers because they are fulfilling the mission of the school, he said.

Rosen also said every decision on the matter had found that the ministerial exception applies to labor laws.

"It's ironclad and very broad where it applies," he said, adding that though wage and hour law is not inherently religious, the state was interfering with the relationship between a religious institution and ministerial staff. Julie Su v. Stephen S. Wise Temple, B275426 (Cal. App. 2nd Dist. Filed June 3, 2016).

Both sides repeatedly referenced the U.S. Supreme Court's decision in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012). In that case, the court ruled unanimously that federal discrimination laws do not apply to religious organizations' selection of religious leaders.

In that decision, Chief Justice John Roberts rejected the Equal Employment Opportunity Commission's position that the ministerial exception applies only to leaders with "exclusively religious functions" and adopted a holistic approach based on the employees' duties.

While the plaintiff spent the majority of her time on non-religious work and taught lay subjects, she was ordained in the Lutheran faith and performed "important religious functions."

In arguing the teachers at Stephen S. Wise Temple are not ministers, Balter said as little as 4 to 6 percent of their duties were religious and called the case the "polar opposite" of Hosanna-Tabor. He also differentiated the Supreme Court case by pointing out it was a retaliation case and more directly related to the relationship between a religious organization and a ministerial employee.

"It's not just about religious duties; those duties have to be primary," he said and then compared the holistic approach taken in Hosanna-Tabor to the Borello multifactor test for independent contractors.

Throughout the hearing, the justices lobbed hypotheticals at both sides to see what functions workers needed to perform, or what circumstances were necessary, for the application of the exception.

Justice Luis A. Lavin asked Rosen if workers at the temple would be exempted from legally mandated vaccinations. He responded it would be "probably outside" the exception.

In a later response, Rosen said janitors or other support staff would not fall under the exception but reiterated the teachers, as ministers, perform an essential religious function of the school and are exempt.

Lavin similarly asked Balter if his argument that labor law enforcement does not tread on religious function and thus does not invoke the exception would mean a Catholic church might be required to provide a priest with meal breaks and overtime when applicable.

"Yes," Balter responded.

Balter also portrayed the temple school as a primarily commercial enterprise because it is open to the public regardless of religion and charges for attendance and is therefore subject to state labor law.

"When a religious organization engages in a commercial activity, they have to play by the same rules," he said.

Rosen rejected that reasoning and asked, "If you send a plate around at church, does that make it a commercial activity?"

"There is an inherent burden when the state interferes in employment, and that is a burden that the First Amendment prevents here," he later said.

In rebuttal, Balter warned that extending the ministerial exception to the teachers in this case would lead to a "parade of horribles."

"What they are essentially asking is that all teachers at religious schools are exempt from labor laws," he said.