- Atheists’ Use of Money Not Burdensome
- Personal Liability For Unpaid Overtime
- Hyperlinks Are Virtual Footnotes
Atheists’ Use of Money Not Burdensome
In Newdow v. United States, the U.S. District Court for the Southern District of New York recently dismissed the plaintiffs’ complaint that the words “In God We Trust” on U.S. currency is unconstitutional.
The plaintiffs consisted of eleven Atheist and Secular Humanist individuals, as well as two associations, the New York City Atheists and the Freedom from Religion Foundation. They sued the United States of America, the Secretary of the Treasury, the Acting Director of the United States Mint, and the Director of the Bureau of Engraving and Printing, claiming that the defendants’ issuance of U.S. currency bearing the words “In God We Trust” violates the Establishment Clause and the Free Exercise Clause of the U.S. Constitution, as well as the federal Religious Freedom Restoration Act (“RFRA”).
According to the decision, the plaintiffs challenged the statute that requires the inscription of “In God We Trust” on all coins and printed currency, enacted in 1955. In 1956, Congress established “In God We Trust” as the National “motto,” and Congress reaffirmed this in 2002. Nonetheless, the plaintiffs alleged that the inclusion of the motto on currency substantially burdened their practice of Atheism and Secular Humanism, and sought an injunction preventing the defendants from issuing currency containing it.
The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….” The U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971) set forth a three-part part to determine whether the Establishment Clause has been violated: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Here, the Court recognized that although the Lemon test has faced criticism, the Second Circuit’s prior instruction to the district courts is to apply it “until it is reconsidered” or “explicitly rejected by the Supreme Court.”
The parties did not dispute that only the first parts of the Lemon test — those relating to the purpose and effect of the statute — were applicable to this case. The purpose test utilizes “the objective observer standard, which asks how the government’s purpose would be perceived by an objective observer.” The Court noted that the Supreme Court has repeatedly assumed, without directly stating, the motto’s secular purpose and effect, and all circuit courts that have considered this issue — the Ninth, Fifth, Tenth, and D.C. Circuits — have found no constitutional violation in the motto’s inclusion on currency. Among the many examples, the Court cited Lynch v. Donnelly, wherein the Supreme Court held that a city’s Christmas display of a crèche passed the purpose and effect Lemon test by comparing the crèche to the motto on the U.S. currency, and noting that “[o]ther examples of reference to our religious heritage are found in the statutorily prescribed national motto ‘In God We Trust,’ which Congress and the President mandated for our currency ….” The Court further recognized that “the following year, when the Supreme Court held that a crèche display in a different setting was unconstitutional, the majority declined to revisit the discussions of ‘ceremonial deism’ from Lynch, because of ‘an obvious distinction between crèche displays and references to God in the motto’ distinguishing ‘a specifically Christian symbol, like a crèche’ from ‘more general religious references,’ which are constitutionally permissible.” Despite the plaintiff’s urging, the Court refused to disregard the Lemon test and the opinions of the Supreme Court, which “taken together, support only one conclusion: the inclusion of the motto on U.S. currency satisfies the purpose and effect tests enunciated in Lemon, and does not violate the Establishment Clause.”
Turning to the Free Exercise Clause (also in the First Amendment), the Court recognized that it “encompasses both ‘freedom to believe and freedom to act on one’s beliefs.’ Absent some demonstration that ‘the purpose of the defendants’ challenged actions was to impugn … or to restrict their religion practices … a Free Exercise claim will be sustained only if the ‘government has placed a substantial burden on the observation of a central religious belief,’ without ‘a compelling governmental interest justif[ying] the burden.’”
In addressing the RFRA, the Court noted that it similarly “provides that the federal government ‘shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability’ unless it demonstrates that such practice ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’ The Second Circuit instructs that ‘substantial burden is a term of art in the Supreme Court’s free exercise jurisprudence’ and it ‘exists when an individual is required to ‘choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion … on the other hand.’”
The plaintiffs argued that the Free Exercise Clause was violated because “they are forced to ‘[b]ear a religious message they believe to be untrue and completely contrary to their sincerely held religious belief’ or ‘utilize a relatively burdensome alternative method.’” They also alleged a violation of RFRA because “the motto’s placement on currency has forced them to ‘bear a religious message,’ ‘proselytize,’ and ‘further anti-Atheist religious prejudices.’” The Court addressed these arguments as follows:
Here again, as with the arguments presented with respect to the Establishment Clause, Plaintiffs’ claims are not violative of constitutional guarantees and they fail to demonstrate the “substantial burden” required by the Free Exercise Clause and RFRA. Put another way, there is no showing of government coercion, penalty, or denial of benefits linked to the use of currency or the endorsement of the motto. Indeed, the case that Plaintiffs highlighted at oral argument appears to cut against their argument. In that case, Wooley v. Maynard, the Supreme Court held that requiring individuals to use license plates bearing the state motto “Live Free or Die” was unconstitutional. However, the Court specifically distinguished currency, not surprisingly finding that “currency, which is passed from hand to hand, differs in significant respects from an automobile …. Currency is generally carried in a purse or pocket and need not be displayed to the public. The bearer of currency is thus not required to publicly advertise the national motto.” While Plaintiffs may be inconvenienced or offended by the appearance of the motto on currency, these burdens are a far cry from the coercion, penalty, or denial of benefits required under the “substantial burden” standard. As such, the inclusion of the motto on currency does not present a violation to the Free Exercise Clause or RFRA.
Thus, the court held that the plaintiffs had not stated a claim under the stablishment Clause, the Free Exercise Clause, or RFRA, and granted the defendants’ motion to dismiss.
Personal Liability For Unpaid Overtime
A Federal Court in New York recently ruled that a corporate employer, as well as the individual owner and an officer of that corporation, as individuals, were liable to an employee for unpaid overtime wages, as well as liquidated damages equal to at least the amount of unpaid wages, for violations of the Federal Fair Labor Standards Act (“FLSA”) and the New York State Labor Law (“NYLL”).
These federal and State laws were created to establish the standard work week, minimum wage, guaranteed “time-and-a-half” for overtime in certain jobs, and to prohibit oppressive child-labor, among other things.
In Switzoor v. SCI Engineering, P.C., 2013 WL 4838826 (S.D.N.Y. 2013) the defendant, SCI, was subcontracted by the New York State Department of Transportation (“NYS DOT”) to paint and clean 12 bridges in Queens County. The plaintiff, Guru Switzoor, was hired by SCI as a “Chief Inspector” for this project, at an hourly wage of $48.00, and an overtime wage equal to one and one-half times that amount — $72.00 per hour worked over forty hours per week. The NYS DOT and SCI, however, disagreed as to Switzoor’s job title. The NYS DOT classified Switzoor as only a “Senior Inspector” and therefore only reimbursed SCI $33.42 per regular hour, and $50.13 per overtime hour worked by Switzoor.
As a result, eventually Switzoor’s pay was reduced to the NYS DOT reimbursement level of pay. Switzoor claims that this reduction was unilateral by SCI, but SCI claims that the parties reached a mutual agreement on the matter, in order to avoid his termination. According to Switzoor’s manager and supervisor, however, as an accommodation to Switzoor who expressed his need to receive the same income as before to meet his financial obligations, SCI agreed to pay him an additional $15 per hour, but expected Switzoor to perform new, additional services, which he did. When it came to overtime pay, however, SCI still based Switzoor’s rate off of the now reduced rate of $33.42 per hour, rather than including the extra $15 per hour in the calculation.
SCI argued that because the parties agreed to the reduction in salary, Switzoor’s motion for summary judgment on the issue of entitlement to overtime wages at the higher rate of pay — $72.00 per hour — should be denied. The Court disagreed.
First, the Court noted that an employee’s rights under the FLSA “cannot be abridged by contract or otherwise waived because this would nullify the purposes [of] the statute and thwart the legislative policies it was designed to effectuate.” Barrentine v. Arkansas – Best Freight Sys., 450 U.S. 728, 740 (1981). Second, the Court held that, even if Switzoor had agreed to his lower level of compensation, “once the additional  $15.00 was added for performance of new services, $48.00 became the new hourly rate from which his overtime rate should have been based.” Accordingly, summary judgment on Switzoor’s claim for overtime wages was granted under the FLSA and the NYLL.
The second issue was whether Switzoor was entitled to liquidated damages. “An employer who violates the FLSA’s overtime requirements is liable for any unpaid overtime compensation ‘and an additional equal amount as liquidated damages.’” The Court, however, has discretion to deny liquidated damages “if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of the [FLSA]’” Switzoor, at *5 (quoting, 29 U.S.C. § 260). The same basic standard is used under the NYLL. Courts have held that “good faith” in this context “requires that a defendant produce plain and substantial evidence of at least an honest intention to ascertain what the Act requires and to comply with it.” Switzoor, at *5 (quoting Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 71 (2d Cir. 1997). Here, the defendants failed to demonstrate any such “good faith.”
To the contrary, [defendants] acknowledged that [they] did not consult with counsel, the United States Department of Labor, the New York State Department of Labor, or anyone else with regard to whether the overtime rate of their inspectors needed to be time and a half. Furthermore, they have provided no evidence that they took any steps to confirm that they did not need to pay overtime on the additional $15.00 when they adjusted Switzoor’s compensation. “Such conduct, considered as a whole, demonstrates not a good faith effort to comply with the [FLSA and NYLL’s] requirements, but instead a complete disregard for them.”
Switzoor, at *5.
As a result, Switzoor was entitled to liquidated damages. Although some courts disagree as to whether a plaintiff can recover liquidated damages under both statutes — the FLSA and NYLL — the majority view is that recovery under both statutes is permitted, because they serve different purposes. Under the FLSA, liquidated damages “are considered compensatory rather than punitive in nature, whereas under the NYLL they constitute a penalty ‘to deter an employer’s willful withholding of wages due.’” Id.
The third issue decided by the Court was whether the sole individual owner of SCI and an officer of SCI — Switzoor’s direct manager and supervisor — were individually liable for these violations. Under the FLSA and NYLL, “employers” can be held liable. To be classified as an “employer” “an individual defendant must possess control over a company’s actual ‘operation’ in a manner that relates to a plaintiff’s employment. The individual, however, need not ‘have been personally complicit in FLSA violations.’” The Court held that because the officer and owner were responsible for Switzoor’s day-to-day operations, Switzoor was required to report to them, and they were involved in all dealings regarding Switzoor’s compensation from the beginning to end, that both the owner and the officer “had authority over management, supervision and oversight” and “exercised direct control.” Therefore, they were his “employers,” and were held individually liable for the FLSA and NYLL violations.
Hyperlinks Are Virtual Footnotes
In a recent law suit, Sheldon Adelson, Chairman and CEO of Las Vegas Sands Corp. (which owns the Venetian Casino in Las Vegas, and other casinos in the Chinese territory Macau), and well-known supporter of Republican candidates during the 2012 election cycle, brought action for defamation against the National Jewish Democratic Council (“NJDC”), along with other individual defendants. Adelson v. Harris, __ F.Supp.2d __ (S.D.N.Y. 2013).
Adelson claimed he was defamed by the NJDC when it published an article stating that “… in addition to his anti-union and allegedly corrupt business practices, Adelson ‘personally approved’ of prostitution in his Macau casinos.” The text “personally approved” was blue and underlined (unlike the remaining black text) and clicking on these words linked the reader to an Associated Press (“AP”) article entitled “Sheldon Adelson Approved ‘Prostitution Strategy’: Fired Former Sands Executive.” The AP article contained details of a lawsuit between a former executive of the Las Vegas Sands Corp. and Adelson in which the former executive declared that in response to taking measure to eliminate loan sharking and prostitution in the Chinese casinos, he was told that the “prostitution strategy had been personally developed and approved by Adelson.”
The tort of defamation consists of four elements which must be proved by the plaintiff: “(1) a false and defamatory statement by defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.” Here, the defendants argued that the “fair reporting privilege” granted them immunity from suit for defamation. Nevada, (whose substantive law was applied in this case because it had the strongest interest in its outcome) “has long recognized a special privilege of absolute immunity from defamation given to the news media and the general public to report newsworthy events in judicial proceedings.” Id. at 11. Although primarily invoked by media sources, the “fair reporting privilege” “extends to any person who makes a republication of a judicial proceeding from material that is available to the general public.” Id. However, in order to receive the benefit of this privilege, the defendant must demonstrate that it is (1) “apparent either from specific attribution or from the overall context that the article is quoting, paraphrasing, or otherwise drawing upon official documents and proceedings”; and (2) the statement must constitute a “fair and accurate” description of the underlying proceeding.”
As to the first element, the NJDC’s statement quotes from, and hyperlinks to, the AP news report that “accurately describes and quotes from the [former employee’s] Declaration.” “The Petition also repeatedly uses the phrase “reportedly” and “reports” when referring to the accusations in the  Declaration.” However, the main point of contention between plaintiff and defendants was whether “hyperlinking in this manner satisfies the attribution requirement of the fair and accurate report privilege.” The Court agreed with the defendants, holding that hyperlinking did give satisfactory attribution to the AP article, stating:
The hyperlink is the twenty-first century equivalent of the footnote for purposes of attribution in defamation law, because it has become a well-recognized means for an author or the Internet to attribute a source.
Moreover, protecting defendants who hyperlink to their sources is good public policy, as it fosters the facile dissemination of knowledge on the Internet. It is true, of course, that shielding defendants who hyperlink to their sources makes it more difficult to redress defamation in cyberspace. But this is only so because Internet readers have far easier access to a commentator’s sources. It is to be expected, and celebrated, that the increasing access to information should decrease the need for defamation suits.
The Court concluded that the second element of the “fair reporting privilege” was present, as the NJDC’s statement accurately quoted the AP Article, which in turn accurately quoted the former employee’s declaration in his lawsuit. As a result, the Court granted the defendants’ motion, and dismissed the case.