Shaliehsabou v. Hebrew Home of Greater Wa

• Citation: 369 F.3d 797
• Decision Date: 24 May 2004
• Docket Number: No. 03-1314.,03-1314.
• Parties: Ferman SHALIEHSABOU, Plaintiff-Appellant, v. HEBREW HOME OF GREATER WASHINGTON, INCORPORATED, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

369 F.3d 797

Ferman SHALIEHSABOU, Plaintiff-Appellant, v. HEBREW HOME OF GREATER WASHINGTON, INCORPORATED, Defendant-Appellee.

No. 03-1314.

United States Court of Appeals, Fourth Circuit.

Filed: May 24, 2004.

ORDER

Appellant filed a petition for rehearing en banc.

A member of the Court requested a poll on the petition for rehearing en banc. The poll failed to produce a majority of the judges in active service in favor of rehearing en banc.

Judges Luttig, Michael, Motz and King voted to rehear the case en banc. Chief Judge Wilkins and Judges Widener, Wilkinson, Niemeyer, Williams, Traxler, Gregory, Shedd and Duncan voted against rehearing en banc. Judge Williams wrote an opinion respecting the denial of rehearing and Judge Luttig wrote an opinion dissenting from the denial of rehearing.

The Court denies the petition for rehearing en banc.

Entered at the direction of Judge Williams.

WILLIAMS, Circuit Judge, respecting the denial of rehearing en banc:

The points raised by my colleague in dissent from the denial of rehearing en banc are, in essence, responses to the panel opinion, to which I refer the reader. See Shaliehsabou v. Hebrew Home, 363 F.3d 299 (4th Cir.2004). I see no reason to elaborate further at this late point in time. See, e.g., Jones v. Buchanan, 325 F.3d 520, 538-39 (4th Cir.2003) (Luttig, J., dissenting) ("[T]he formal release of an opinion of law on behalf of the court is the final step in the court's deliberative process, not the first or merely another along the way toward the final decision.").

LUTTIG, Circuit Judge, dissenting from the denial of rehearing en banc:

In a landmark opinion, which the majority does not even realize to be such, the majority holds that Ferman Shaliehsabou, an employee compensated for his work in "activities performed for a common business purpose," is beyond the coverage of section 7(a) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a), because he falls within the terms of a "ministerial" exception to the Act's otherwise expansive definition of the term "employee." No court has ever excluded an employee from the coverage of the FLSA on this basis. No court of appeals has ever done so. No district court has ever done so.

Indeed, neither this court, nor any other appellate court, has ever held that a "ministerial" exemption to the FLSA exists in any prior decision. Our court seemed to assume that one existed in Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir.1990). But in that case we did not even state that such an exemption exists, much less adopt such an exemption. Id. at 1396-97 (noting that employer argued that employees fell within ministerial exemption to FLSA, discussing derivation of exemption, but never adopting such an exemption). And we certainly did not so hold: the court rejected the argument that the employees in that case would fall within any such exemption.

It is for good reason that no court has ever held there to be a "ministerial" exception to FLSA's coverage. The exemption of "ministerial" employees from the protections of the FLSA — which the majority recognizes and construes broadly in its opinion — does not find a single word of support in the text of the Act or in the Labor Department's rules and regulations interpreting it. As such, the majority's recognition of the exemption flies in the face of the Supreme Court's express direction that "[t]o extend an exemption to other than those clearly and plainly within its [the FLSA's] terms and spirit is to abuse the interpretive process and to frustrate the announced will of the people." See A.H. Phillips, Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095 (1945).

For these reasons, which I set forth in detail below, I dissent from the court's refusal to rehear this case en banc.

I.

A.

Although the majority does not acknowledge the novelty of its holding, the "ministerial" exception to the definition of "employee" on which it rests its exclusion of Shaliehsabou, has no basis in the statutory text of the FLSA. The Act defines "employee" in "exceedingly broad" terms, see Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 295, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985), to "mean any individual employed by an employer," 29 U.S.C. § 203(e), and the term "employ" in similarly broad terms to mean "to suffer or to permit to work." 29 U.S.C. § 203(g). Thus, where an individual is "suffered or permitted to work" by an employer in expectation of compensation for that work, he is an "employee." See Alamo Found., 471 U.S. at 302, 105 S.Ct. 1953. As the Supreme Court has made clear, "the test for employment under the Act is one of economic reality," id. at 301, 105 S.Ct. 1953, i.e. whether the persons in question undertook the covered activities "in expectation of compensation," see id. at 302, 105 S.Ct. 1953. The fact that an individual is a "ministerial" employee or that his primary duties are religious in nature has no bearing on this determination.

The "ministerial exemption" also has no basis in any of the dozens of statutory exemptions from the FLSA included in the Act itself. Despite the breadth of the FLSA's definition of "employee," the FLSA specifically provides that the term "does not include" certain agricultural employees, 29 U.S.C. § 203(e)(3), and volunteers for state public agencies, § 203(e)(4). In addition, the Act expressly exempts from its coverage "executive, administrative, and professional" employees, 29 U.S.C. § 213(a)(1), agricultural employees, § 213(a)(6), babysitters, § 213(a)(15), computer programmers and software engineers, § 213(a)(17), newspaper deliverers, § 213(d), and even certain home wreath makers, id., among others. See also 29 U.S.C. §§ 213(a)(1)-(17), 213(b)(1)-(30), 214(h)-(j). But it does not exclude "ministerial" employees from the definition of "employee" and it provides no exemption for "ministerial" employees. See Powell v. United States, 339 U.S. 497, 517, 70 S.Ct. 755, 94 L.Ed. 1017 (1950) (providing that the FLSA's "specificity in stating exemptions strengthens the implication that employees not thus exempted ... remain within the Act").

In sum, the FLSA is completely bereft of any language that even conceivably could be construed to create the "ministerial exception" to the definition of "employee" recognized, and relied upon, by the majority. For this reason alone, the majority's holding is in obvious conflict with a long line of Supreme Court precedent, directing that the FLSA be construed "liberally to apply to the furthest reaches consistent with congressional direction," Alamo Found., 471 U.S. at 296, 105 S.Ct. 1953, and exemptions from its coverage strictly limited to those "clearly and plainly within its terms and spirit." A.H. Phillips, Inc., 324 U.S. at 493, 65 S.Ct. 807; see also Powell v. United States, 339 U.S. at 517, 70 S.Ct. 755. As the Court has explained many times, "[w]hen Congress provides exceptions in a statute, it does not follow that courts have authority to create others. The proper inference... is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth." United States v. Johnson, 529 U.S. 53, 58, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000); TRW, Inc. v. Andrews, 534 U.S. 19, 28, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001); Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 64 L.Ed.2d 548 (1980).

And what is more, even were one concerned about the FLSA's regulation of religious activities, the recognition of a "ministerial" exemption to the term "employee" would not be necessary. As the Hebrew Home admits in its Response to Shaliehsabou's Petition for Rehearing, "most of the `employers' of [ministerial employees] (e.g. churches) are not covered under the FLSA because they are not `enterprises engaged in commerce or the production of goods for commerce.' 29 U.S.C. § 203(r)." Appellee's Response to Petition for Rehearing En Banc at 2; see also id. at 6 ("The scarcity of reported decisions is undoubtedly due to the fact that the vast majority of `ministerial' personnel are employed by institutions — such as churches — that are not FLSA-covered `enterprises.'"). And, even where religious organizations are "engaged in commerce," the FLSA, by its own terms, "reaches only the `ordinary commercial activities' of [those] organizations and only those [employees] who engage in those activities in expectation of compensation." Alamo Found., 471 U.S. at 302, 105 S.Ct. 1953 (citing 29 C.F.R. § 779.214). Quite clearly then, even absent a judicially-created "ministerial" exception, the Act does not cover employees engaged in the vast majority of activities that religious organizations perform.

In this case, however, Congress has provided unequivocally that the activities of the Hebrew Home at issue here, activities performed "in connection with the operation of ... an institution primarily engaged in the care of ... the aged (regardless of whether or not such ... institution ... is operated for profit or not for profit)," "shall be deemed to be performed for a business purpose," and, therefore, subject to the provisions of the FLSA. 29 U.S.C. § 203(r)(2). This provision may not extend to all employees of the Hebrew Home; for instance, it may be held that a rabbi does not act "in connection with the operation" of the Home because he works in a purely spiritual capacity and not "in connection with" any of the Home's operational activities. But, as both the majority and the Hebrew Home fully acknowledge, the activities performed by Shaliehsabou are on the other side of this divide because preparation of food in which a mashgiach participates, unlike the spiritual work of a rabbi, clearly is undertaken "in connection with" the operation of the Hebrew Home. See 29 U.S.C. § 203(r)(2); 29 C.F.R. § 779.214.

B.

The basis for the majority's holding that "ministerial" employees are not "employees" within the meaning of the FLSA is a single...