After the United States Supreme Court’s decision in Alamo Foundation v Secretary of Labor, 471 US 290 (1985) held that persons working for food, clothing and shelter were in fact employees because of their economic dependence entitled to the Minimum Wage, occasional confusion resulted about whether church volunteers were employees.  Because church volunteers were not economically dependent, i.e., could walk away and never return, they were not employees entitled to payment.

In Acosta v Cathedral Buffet, Inc., Slip Op. (6^th Circuit 2018), the United States Court of Appeals for the 6^th Circuit was confronted with a Department of Labor (“DOL”) conclusion that because the church volunteers were spiritually or socially coerced by the pastor to serve as volunteers in the church owned restaurant that they were in fact employees entitled to the Minimum Wage.  The DOL had to reach that conclusion because it could not realistically claim the church member volunteers were economically dependent for sustenance as had been the workers in the Alamo case. The 6^th Circuit concluded that spiritual or social coercion, if it existed, was not envisioned by the Fair Labor Standards Act (“FLSA”).  As a result, church volunteers could not pursuant to the FLSA be employees.

The Concurring Opinion questioned whether the DOL had fully contemplated the implications of inquiring into spiritual or social coercion if such existed.  The Concurring Opinion noted such an inquiry would require an inquiry into the religious imperatives for the volunteers contrary to the Ecclesiastical Abstention Doctrine of the First Amendment.  Music worship leaders that must hold together church choirs and bands week after week forever can attest to the necessity of the spiritual guilt trip.  But, such persuasion, if it is coercive, is not recognized as a prerequisite to a conclusion a worker is an employee rather than a volunteer.  (However, the Concurring Opinion did not ask the same question of the federal trial court.)

The Daily Oklahoman, the general circulation newspaper in central Oklahoma, noted the 6^th Circuit’s decision in an op-ed piece in the April 23, 2018 edition.  The Oklahoman concluded church volunteers could simply find another church.  Somehow that did not occur to the DOL or the federal trial court which was reversed by the 6^th Circuit.

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