Exemptions Apply in Nonprofit Workplace

Q I had a lunch interview with a man from a religious nonprofit organization. Diplomatically, I asked if he believed that the fact that I was not a member of that religious organization would preclude me from being an effective employee. Although he did not say no, he avoided answering me directly.

Needless to say, I was taken aback by his response. I got a vague thank you letter, saying he would try to let me know about the progress of the search. The position has been open for a year.

What does the law say about this?

--G.B., Costa Mesa

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A Although federal and state laws prohibit discrimination on the basis of religion, there are exemptions for various religious organizations.

Under California law, for example, a religious association or corporation that is not organized for private profit is not considered an “employer,” and therefore is not subject to the state’s restrictions against discrimination.

In addition, the federal law that prohibits discrimination does not apply to a religious corporation, association, educational institution or society with respect to employing individuals of a particular religion to perform work connected with carrying on the organization’s activities.

In fact, there is a specific exemption written into the federal law that permits religious institutions or organizations to may base relevant hiring decisions on religious preferences.

Federal law also provides that it is not unlawful for an employer to employ an individual on the basis of his or her religion when it is reasonably necessary to the normal operation of the particular business.

Because your question does not detail the type of organization, it is not possible to determine whether the organization would be subject to these exemptions.

If you wish to pursue the matter, I suggest you contact the Equal Employment Opportunity Commission at the number in the local phone book.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

Alcoholism May Count as Physical Disability

Q I started a new job in April 1997 as a vice president for a company with about 12 employees.

When I was hired, the president made it clear that I was considered an exempt employee. I missed work during most of July and August because of a serious mental condition (called a dissociative disorder) that resulted in depression, anxiety and alcohol abuse (which my employer doesn’t know about).

Around the middle of August, I was notified in writing that my exempt status was voided, retroactive to July 1. Can the company change my exempt status, either for the future or retroactively?

--J.M., Westminster

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A Your case is extraordinarily complicated. It does not appear that your employer breached an express or implied employment contract by reclassifying you.

Nor do you have a case against your employer for discriminating against you because of a mental disability. The laws that protect employees from discrimination because of long-term, chronic or recurring dissociative disorders or depression apply only to employers with 15 or more employees. Since your company has just 12 employees, you will not be able to sue for mental disability discrimination related to your dissociative disorder and accompanying depression and anxiety.

There is a slim chance, however, that you may be able to claim physical disability discrimination related to alcoholism.

Unlike state and federal laws governing mental disability discrimination, California law forbids employers with as few as five employees from discriminating because of an employee’s physical disability. Under new state guidelines, alcoholism can constitute a physical disability if medical evidence establishes that it resulted from a physical impairment or a combination of mental and physical causes.

As disabled employees, alcoholics are protected from demotions and other adverse job actions based on their record of alcoholism (but not intoxication at work), provided that they are able to perform the essential job functions with reasonable accommodation, such as time off or a change in schedule.

It appears from your letter, however, that you did not tell your employer about your alcohol problem. To prove disability discrimination, you will need to show that your employer had reason to know about your alcohol problem, and that your alcoholism contributed to your employer’s decision to demote you.

These are all difficult issues. I urge you to review your case with an employment attorney familiar with our disability laws.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

Physical Therapy and Exempt Status

Q Each week, I have to spend some time away from the job, undergoing physical therapy for an injury at work.

The time away from work is less than a day, but my employer is deducting it from my accrued sick leave.

Since I am an exempt employee, should this physical therapy time be deducted?

--H.H., Northridge

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A As an exempt employee, it is improper for your employer to deduct your physical therapy time. If your employer persists in making those deductions, you should consider contacting the California Labor Commissioner at (213) 620-6330.

--Kirk F. Maldonado

Employee benefits attorney

Riordan & McKinzie

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or, e-mail it to [email protected]. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.