Donovan v. Tony and Susan Alamo Foundation
| Decision Date | 01 March 1984 |
| Docket Number | Nos. 83-1463,82-2549,s. 83-1463 |
| Parties | 26 Wage & Hour Cas. (BN 1083, 26 Wage & Hour Cas. (BN 862, 99 Lab.Cas. P 34,473 Raymond J. DONOVAN, Secretary of Labor, U.S. Department of Labor, Plaintiff/Appellee/Cross-Appellant, v. TONY AND SUSAN ALAMO FOUNDATION, Tony Alamo, Susan Alamo and Larry Larouche, Defendants/Appellants/Cross-Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Roy Gean, Jr., Roy Gean, III, Gean, Gean & Gean, Fort Smith, Ark., for defendants/appellants/cross-appellees.
Francis X. Lilly, Deputy Sol. of Labor, Karen I. Ward, Associate Sol., Special Appellate and Supreme Court Litigation, Charles I. Hadden, Appellate Litigation, Elaine D. Kaplan, James E. White, Regional Sol., U.S. Dept. of Labor, Washington, D.C., for plaintiff/appellee/cross-appellant.
Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and DUMBAULD, * Senior District Judge.
The questions in this case are whether the Fair Labor Standards Act and its minimum wage, overtime, and record-keeping provisions (29 U.S.C. 201 et seq.), properly construed, apply to certain persons engaged in working for a religious organization, and whether, if so, such application conflicts with the religious guarantees of the First Amendment. We answer the first question affirmatively, the second in the negative.
The Secretary of Labor, under 29 U.S.C. 217, brought an action against appellants the Tony and Susan Alamo Foundation, a California corporation, and three of its officers individually 1, alleging violations of the minimum wage, overtime, and record-keeping provisions of the Act [29 U.S.C. 206(b), 207(a), 211(c), 215(a)(2), and 215(a)(5) ] over a period of years. 2
The foundation engages actively in evangelism and is recognized by the IRS as a religious and charitable organization under 26 U.S.C. 501(c)(3).
Certain persons are admittedly employees of the foundation, and controversy regarding such "outside employees" relates chiefly to factual questions as to whether and how much overtime they worked. As to these matters the findings of the District Court 567 F.Supp. 556 are not "clearly erroneous." Rule 52(a) FRCP.
The genuine and substantial controversy in the case relates to the status of some 300 persons designated as "associates" of the foundation. The organization's evangelical work has been carried on among derelicts, drug addicts, and criminals. As part of their rehabilitation they perform useful work in the thirty some commercial businesses operated by the foundation. They also receive lodging, food, transportation, and medical care provided by the foundation. They claim to be volunteer workers and to expect no compensation. They do expect to receive (and indeed otherwise many of them could not live without resort to public assistance or crime) the aforementioned benefits of lodging, food, transportation, and medical care.
The questions in this case are difficult and delicate. Perhaps the key to their determination is the familiar maxim of Justice Holmes that all questions are ultimately questions of degree and must be decided on their particular facts. 3
It is clear, on the one hand, that an individual such as a prosperous lawyer ringing the bell for the Salvation Army on the street at Christmas time for a few hours is not an "employee," but a volunteer donating his time to the advancement of a worthy cause. The same is true of persons caring for children on Sunday during church services, or preparing and serving meals at a church dinner.
and that St. Paul was a tentmaker, 5 and that champagne and chartreuse owe their origin to the extra-religious activities of monastic orders.
Yet it is equally clear that there comes a time when secular endeavor must be recognized as such, and passes over the line separating it from the sacred functions of religious worship.
Perhaps the distinction somewhat resembles that between the essentially governmental activities of a State as a State, and its activities of a commercial or proprietary nature. When a State sells liquor or bottled water, or runs a railroad, it casts aside its sovereign attributes and competes on the same footing as other entrepreneurs in the market place. South Carolina v. U.S., 199 U.S. 437, 461, 463, 26 S.Ct. 110, 116, 117, 50 L.Ed. 261 (1905); New York v. U.S., 326 U.S. 572, 575, 579, 582, 66 S.Ct. 310, 311, 313, 314, 90 L.Ed. 326 (1946); National League of Cities v. Usery, 426 U.S. 833, 845, 96 S.Ct. 2465, 2471, 49 L.Ed.2d 245 (1976); EEOC v. Wyoming, --- U.S. ----, 103 S.Ct. 1054, 1060-82, 75 L.Ed.2d 18 (1983).
The same metamorphosis or transmogrification occurs when a religious organization turns from the things of God to the things of Caesar. 6
Upon careful reflection we are impelled to conclude that the foundation's activities in the case at bar have overstepped the dividing line and become subject to the requirements of the Fair Labor Standards Act.
The extensive scope and substantial character of the foundation's commercial operations are elaborated in Judge Overton's opinion. In California the foundation furnishes contract labor crews, engages in the manufacture and retail sale of clothing, and runs a service station supplying gasoline to motorists.
In Arkansas the foundation's commercial dealings include, inter alia, advertising, landscaping, service stations, restaurants, production and sale of candy, manufacture and retail sale of clothing, groceries, vehicle repairs, record keeping, construction, plumbing, sand and gravel, construction, electrical contracting, ready-mixed concrete, hog farms, feed and farm supplies, real estate development, motor carrier transportation of freight, and other commercial ventures. 7
It must be emphasized that these businesses serve the general public, in competition with other private entrepreneurs. The gas stations, for example, serve any motorist, and are not limited to fueling vehicles used for transportation of foundation associates on their travel in connection with their evangelical efforts. The grocery stores, clothing stores, and restaurants serve the public at large, not merely associates of the foundation. The foundation's motor trucks are not confined to private carriage of supplies for the foundation's own needs, but are common carriers holding out service to the public generally.
Under the "economic reality" test 8 it would be difficult to conclude that the extensive commercial enterprise operated and controlled by the foundation was nothing but a religious liturgy engaged in bringing good news to a pagan world. By entering the economic arena and trafficking in the marketplace, the foundation has subjected itself to the standards Congress has prescribed for the benefit of employees. The requirements of the Fair Labor Standards Act apply to its laborers.
It remains to consider whether application of the Fair Labor Standards Act to "associates" of the foundation in the case at bar violates the religious guarantees of the First Amendment.
The First Amendment's provisions touching religious liberty are twofold. Not only is the individual free from all governmental coercion to participate against his will in the support of any religion (either directly, as by compulsion to attend ceremonies, or indirectly, as by compulsion through taxation to make contributions), but also is free from all governmental coercion interfering with his participation in the support (directly or indirectly) of any religion which he does choose of his own will to embrace. 9
As stated by Justice Owen J. Roberts in Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940):
The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.... On the other hand, it safeguards the free exercise of the chosen form of religion.
It has become customary to describe these two facets of constitutional protection as the Establishment Clause and the Free Exercise Clause, respectively. 10
Both types of guarantee were contained in the celebrated Virginia Act for Establishing Religious Freedom 11 drafted by Thomas Jefferson 12 and pushed through the Virginia legislature by James Madison in 1786 before he left the legislative arena at Richmond to gain new laurels on the national scene at the Philadelphia convention of 1787 as Father of the Federal Constitution. 13 The major role played by Madison in securing enactment of the Bill of Rights, and in particular the religious clauses of the First Amendment, has been repeatedly recognized. 14
The operative portion of the Virginia statute provided:
"That no man shall be compelled to frequent or support any religious worship, place, or ministry, whatsoever, nor shall be enforced, restrained, molested or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities..." 15
In Establishment Clause cases a three-part test has been elaborated by the Supreme Court. Government action passes muster under this clause if: (1) the statute has a secular legislative purpose; (2) its principal or primary effect must neither advance nor inhibit religion; (3) it must not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971).
Measured by this standard, the Fair Labor Standards Act in the case at bar does not run afoul of the...
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