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October 16, 2007
Religious Comp Time and Federal Employment
Here is a situation I was not aware of until I saw this article in the Washington Post:
When Mark Elengold retired as a top government drug regulator in 2005, he received $18,733 in his final paycheck, on top of his normal salary. The money was not a bonus, overtime pay or compensation for unused vacation hours. Rather, it was for time he had reserved to go to synagogue but had not actually used for that purpose during his three-decade career.
In bureaucratic parlance, Elengold's payment was for "religious compensation time," a little-known benefit created by a 1978 law that allows civilian federal employees to work small amounts of overtime, bank those hours and use them to take time off for religious observances without spending their vacation leave.
While the goals of the law were broadly supported at the time and have been promoted by the Bush administration, government and congressional investigators have found evidence in recent years that the religious benefit has sometimes been used improperly to pad vacation time and retirement cash-outs.
Early in the Bush administration, the Navy determined that three civilian managers in Rhode Island had accrued hundreds of hours of religious leave and used the time to play golf, gamble, run marathons and travel to Europe. They banked their regular vacation leave so that they would be eligible for large cash payouts upon retirement.
The nonchalant attitude of one of these Navy managers is galling and captured when "asked whether he considered a golf tournament to be a religious observance, one of the workers told Navy investigators: 'They could be for some people.'"
Nothing knew about government waste and fraud, but what concerns me here is that the government is paying workers to attend the religious observance of their choice. Although the program is neutral among different religions, it is not neutral between religion and non-religion, and thus seems to violate the Establishment Clause. Indeed, an employee has to prove his faith before setting aside religious comp time:
They must identify in writing the specific religious observances they plan to use the time for, and they must expend all the banked hours at such observances before accruing new religious leave.
Now under current Supreme Court government spending on religion cases, like the Zelman school-voucher case, all you need to survive Establishment Clause scrutiny is a neutral program which gives private choice to the individual how to spend the money. I never bought this approach and see it as just a clever way of washing the government taint of federal money that is going for religious purposes.
Although not convinced it would be successful, I would certainly like to see a non-religious federal employee challenge this program on constitutional grounds.
PS
October 16, 2007 in Public Employment Law | Permalink
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Comments
Although the program is neutral among different religions, it is not neutral between religion and non-religion, and thus seems to violate the Establishment Clause.
Does Title VII also violate the Establishment Clause, since it requires employers to accommodate employees' religious practices but not their non-religious pursuits?
Posted by: AF | Oct 16, 2007 10:59:54 AM
I'm confused. Public employees, including federal employees, generally have the right to earn "comp time" in lieu of pay for overtime (see FLSA section 207(o) for state and local employees, and there's a mostly equivalent section in Title V for federal employees). Given that employees who earn comp time under these provisions can use that time for whatever they want, why is this separate section (which I'll confess I never heard of) even needed?
Posted by: Joseph Slater | Oct 16, 2007 11:09:35 AM
AF, great question.
This is what we might refer to as the "play in the joints" between the free exercise clause and establishment clause. If Title VII did not permit religious accommodation at all, there would certainly be a free exercise problem. But, on the other hand, providing a benefit to religion and not one for non-religion, suggests governmental discrimination in favor of religion.
Perhaps the difference between Title VII and the religious comp program is that Title VII defines religion very broadly to include any sincere belief in one's own scheme of things, while the federal regulations require you to narrowly "identify in writing the specific religious observances they plan to use the time for, and they must expend all the banked hours at such observances before accruing new religious leave."
The latter instance seems to be more about favoring religion in that an atheist could not take religious comp time, but might be able to advance an argument under Title VII for accommodation.
Another thing that strikes me is that the religious comp time case concerns paying government money directly to individuals to have time off for religious purposes, while religious accommodation, at least in the private sector (and only indirectly in the public sector) does not.
Paul
Posted by: Paul | Oct 16, 2007 11:11:42 AM
JosephSlater: It appears the federal law applies to non-overtime eligible employees, who would not otherwise be eligible for comp time.
Paul: In my view, the federal program is rather easily constitutional under current law. The play in the joints between the Free Exercise and Establishment Clauses means that "[r]eligious accommodations . . . need not come packaged with benefits to secular entities." Cutter v. Wilkinson, 544 U.S. 709, 724 (2005). Such accommodations can be characterized as discrimination against non-religion, but as long as they are relatively small, they are not the sort of discrimination prohibited by the Establishment Clause as currently interpreted.
Limiting the benefit to specific religious observances does not seem to change the analysis or distinguish this federal program from Title VII. The specificity requirements appears to be designed to prevent abuses (of the sort that seem to be occurring anyway), not to limit the benefit to specific religions or even to organized or deistic religions in general.
Note as well that the program is not a direct bonus for religious observance, but an opportunity to bank overtime. The weirdest thing about the program to me is that you can get paid for unused time -- this seems directly in conflict with its purpose, which is to allow religious observance without financial sacrifice. Note, however, that the lump-sum payments go to people who don't practice religion, not to those who do, so if anything, the advantage goes to the non-religious (query whether non-religious employees can bank leave for a religious activity they think might be kind of interesting -- eg attending an Ethical Culture meeting or checking out a new church of which they are not members -- but then "change their minds" and keep the time).
Posted by: AF | Oct 16, 2007 12:29:49 PM
Good question, Joe. I don't know the specifics of this program, but a few differences from what you mention come to mind--at least with regard to the way the system worked when I was a federal employee. First, not all employees can earn comp time. The agency must specifically permit comp time schedules and no agency must do so (except for, obviously, religious practices). Second, even if you're in a comp time schedule, the amount of time you can bank is limited, which apparently isn't the case for the religious program.
Posted by: Jeff Hirsch | Oct 16, 2007 12:43:32 PM
One last thing on this topic. Justice O'Connor, concurring in Estate of Thornton v. Caldor (US 1985) stated:
"I do not read the Court's opinion as suggesting that the religious accommodation provisions of Title VII of the Civil Rights Act of 1964 are similarly invalid. These provisions preclude employment discrimination based on a person's religion and require private employers to reasonably accommodate the religious practices of employees unless to do so would cause undue hardship to the employer's business. Like the Connecticut Sabbath law, Title VII attempts to lift a burden on religious practice that is imposed by private employers, and hence it is not the sort of accommodation statute specifically contemplated by the Free Exercise Clause. The provisions of Title VII must therefore manifest a valid secular purpose and effect to be valid under the Establishment Clause. In my view, a statute outlawing employment discrimination based on race, color, religion, sex, or national origin has the valid secular purpose of assuring employment opportunity to all groups in our pluralistic society. Since Title VII calls for reasonable rather than absolute accommodation and extends that requirement to all religious beliefs and practices rather than protecting only the Sabbath observance, I believe an objective observer would perceive it as an anti-discrimination law rather than an endorsement of religion or a particular religious practice."
On the other hand, the religious comp time provision has both a religious purpose and effect.
Thanks to Roberto Corrada for the pointer.
Posted by: Paul | Oct 17, 2007 10:20:08 AM
