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The Eleventh Circuit, affirmed the district court, holding that RDV was not Morrison's employer based on the three factors set forth in Welch v. Laney, 57 F.3d 1004 (11th Cir. 1995). Those factors include 1) whether the employment took place on the alleged employer's premises; 2) how much control the alleged employer asserted over the employee; and 3) whether the alleged employer had the ability to hire, fire, or modify employment conditions. Finding that RDV's lease agreement with Magic Carpet for use of its planes and accompanying crews greatly limited its control over these arrangements, the court construed the first factor in RDV's favor. Likewise, the court found that Morrison's evidence under the second Welch factor, including the perquisites given to Morrison by RDV and the uniform Morrison was required to wear, did not amount to the level of direct control inherent in an employment relationship. Furthermore, the court found that RDV's influence over Magic Carpet's employment decisions, while great, did not amount to an ability to hire and fire Morrison directly. On the issue of whether RDV could be deemed Morrison's “integrated employer, the Eleventh Circuit found that, with the exception of a the existence of a degree of common ownership or financial control among RDV, Amway, and Magic Carpet, the characteristics of such relationship, including common management, interrelation between operations, and centralized control of labor relations were absent in this case. Finally, the court found that RDV, Amway, and Magic Carpet could not be considered Morrison's “joint employers” in that RDV did not share plaintiff's service with Magic Carpet, nor did it exert any direct control over either Morrison or Magic Carpet.

School District's Religion Policy Violated Establishment Clause

The Eighth Circuit has held that a school district's policy forbidding its employees from participating in religious programs held on school grounds was viewpoint discriminatory and in violation of the Establishment Clause of the First Amendment. Wigg v. Sioux Falls School District 49-5, 2004 WL 1948682 (8th Cir. Sept. 3).

Barbara Wigg, currently a second- and third-grade teacher at Laura B. Anderson Elementary School (Anderson Elementary), sued Sioux Falls School District 49-5 and Superintendent Dr. John Keegan for refusing to allow her participation in a Christian-based after-school organization, The Good News Club (the Club), at any of the district's schools. The Club, sponsored by the Child Evangelism Fellowship, required participating children to provide permission slips signed by a parent. While the school district had maintained a “Community Use of School Facilities” Policy, allowing both school-sponsored groups and community organizations, such as churches and non-sectarian youth groups, to use its facilities, it had also adhered to a “Religion in the Schools and at School Activities” Policy, prohibiting its employees from taking part in both school-sponsored religious activities and those taking place on school grounds. The district court found that while the school district's decision regarding Wigg's participation in the Club at Anderson Elementary was constitutional, its refusal to allow her participation at other district schools could not be upheld.

Concluding that the school district's Religion Policy was viewpoint discriminatory in violation of the Establishment Clause, the Eighth Circuit affirmed the district court's order allowing Wigg to participate in the Club at other district schools and reversed its decision prohibiting Wigg from participating at Anderson Elementary. The court regarded Wigg's participation in the Club as private speech in that it did not occur during a school-sponsored event: Wigg's speech was not affiliated with the school district, students were only allowed participation with parental consent, and nonparticipating students left the building before the Club meetings commenced. Recognizing the difference between government speech endorsing religion (which is prohibited by the Establishment Clause) and private speech endorsing religion (which is protected by the Free Speech and Free Exercise Clauses), the court found the school district's Religion Policy overbroad in its application to employees' private religious speech. By limiting employee participation in the Club, the school district had impermissibly discriminated based on the subject matter of the speech, a per se constitutional violation.

Client of Company Not Considered 'Employer' Under FMLA

The Eleventh Circuit has held that a company's client cannot be held liable under the Family and Medical Leave Act of 1993 (FMLA), as the client cannot be considered the employee's “employer,” “integrated employer,” or “joint employer” under the statute. Morrison v. Magic Carpet Aviation, 2004 WL 1970052 (11th Cir. Sept. 8).

RDV Sports, Inc. owns the National Basketball League's Orlando Magic. RDV contracted with Magic Carpet Aviation, Inc. to fly the Orlando Magic and its staff throughout the country. David Morrison, a pilot for Magic Carpet, filed suit under the FMLA against Magic Carpet, Inc., Amway Corp. (of which Magic Corp. was a wholly owned subsidiary), RDV, and Morrison's supervisor individually. The gravamen of Morrison's claim was that he was denied his FMLA rights when his supervisor allowed him only 2 weeks' mental health leave and fired him for requesting additional time off. Noting that the FMLA covers only employers with at least 50 employees within a 75-mile radius of the worksite, and finding that Magic Carpet and Amway (as Morrison's joint employers) did not meet that threshold, the district court granted defendants' motions for summary judgment. The district court further held that the employees of RDV could not be counted for purposes of reaching the 50-employee threshold because, as a matter of law, RDV Sports was not Morrison's “employer,” “integrated employer,” or “joint employer.” Morrison appealed this latter holding.

The Eleventh Circuit, affirmed the district court, holding that RDV was not Morrison's employer based on the three factors set forth in Welch v. Laney , 57 F.3d 1004 (11th Cir. 1995). Those factors include 1) whether the employment took place on the alleged employer's premises; 2) how much control the alleged employer asserted over the employee; and 3) whether the alleged employer had the ability to hire, fire, or modify employment conditions. Finding that RDV's lease agreement with Magic Carpet for use of its planes and accompanying crews greatly limited its control over these arrangements, the court construed the first factor in RDV's favor. Likewise, the court found that Morrison's evidence under the second Welch factor, including the perquisites given to Morrison by RDV and the uniform Morrison was required to wear, did not amount to the level of direct control inherent in an employment relationship. Furthermore, the court found that RDV's influence over Magic Carpet's employment decisions, while great, did not amount to an ability to hire and fire Morrison directly. On the issue of whether RDV could be deemed Morrison's “integrated employer, the Eleventh Circuit found that, with the exception of a the existence of a degree of common ownership or financial control among RDV, Amway, and Magic Carpet, the characteristics of such relationship, including common management, interrelation between operations, and centralized control of labor relations were absent in this case. Finally, the court found that RDV, Amway, and Magic Carpet could not be considered Morrison's “joint employers” in that RDV did not share plaintiff's service with Magic Carpet, nor did it exert any direct control over either Morrison or Magic Carpet.

School District's Religion Policy Violated Establishment Clause

The Eighth Circuit has held that a school district's policy forbidding its employees from participating in religious programs held on school grounds was viewpoint discriminatory and in violation of the Establishment Clause of the First Amendment. Wigg v. Sioux Falls School District 49-5, 2004 WL 1948682 (8th Cir. Sept. 3).

Barbara Wigg, currently a second- and third-grade teacher at Laura B. Anderson Elementary School (Anderson Elementary), sued Sioux Falls School District 49-5 and Superintendent Dr. John Keegan for refusing to allow her participation in a Christian-based after-school organization, The Good News Club (the Club), at any of the district's schools. The Club, sponsored by the Child Evangelism Fellowship, required participating children to provide permission slips signed by a parent. While the school district had maintained a “Community Use of School Facilities” Policy, allowing both school-sponsored groups and community organizations, such as churches and non-sectarian youth groups, to use its facilities, it had also adhered to a “Religion in the Schools and at School Activities” Policy, prohibiting its employees from taking part in both school-sponsored religious activities and those taking place on school grounds. The district court found that while the school district's decision regarding Wigg's participation in the Club at Anderson Elementary was constitutional, its refusal to allow her participation at other district schools could not be upheld.

Concluding that the school district's Religion Policy was viewpoint discriminatory in violation of the Establishment Clause, the Eighth Circuit affirmed the district court's order allowing Wigg to participate in the Club at other district schools and reversed its decision prohibiting Wigg from participating at Anderson Elementary. The court regarded Wigg's participation in the Club as private speech in that it did not occur during a school-sponsored event: Wigg's speech was not affiliated with the school district, students were only allowed participation with parental consent, and nonparticipating students left the building before the Club meetings commenced. Recognizing the difference between government speech endorsing religion (which is prohibited by the Establishment Clause) and private speech endorsing religion (which is protected by the Free Speech and Free Exercise Clauses), the court found the school district's Religion Policy overbroad in its application to employees' private religious speech. By limiting employee participation in the Club, the school district had impermissibly discriminated based on the subject matter of the speech, a per se constitutional violation.