CHICAGO – Federal labor regulators at the National Labor Relations Board have expanded the agency's reach within religious private schools, finding that faculty and others at the schools who don’t provide religious instruction should no longer be considered exempt from federal workplace rules.

These church-affiliated private schools have been exempted from the NLRB’s protective measure because of religious freedoms that have made them exempt from the National Labor Relations Act (NLRA). Recently, the NLRB has expanded its jurisdiction by concluding that some of the staff at these religious institutions do indeed fall under the NLRA, if they teach subjects such as math or English that are not necessarily religious in nature.

While these non-religious teachers and staff would fall under the NLRB's regulations, teachers who instruct in straightforwardly religious subjects still would not.

“Faculty members at private religious schools will likely fall under the jurisdiction of the National Labor Relations Act, unless they teach religious subjects,” David K. Broderick, an associate at Littler Mendelson P.C., told the Cook County Record. “This means that faculty can form a union, engage in protected concerted activity (group activity) to change terms and conditions of employment, file unfair labor practice charges against their employer, etc.

"In short, these employees can engage in any rights protected by the NLRA.”

To guide its jurisdiction with this new class of employers, the NLRB has developed a two-part test that was used for the first time with Pacific Lutheran University. Under the test, employees are exempt from the NLRA if the school can show not only that the school is a religious environment, but also that its faculty works to create that religious environment.

Recently, the NLRB used the two-part test with St. Xavier University, which is affiliated with the Roman Catholic Church, with campuses in Chicago and suburban Orland Park. In this case, the NLRB used its two-part test on the school’s part-time staff, except those involved in its nursing program. Here, it was determined that the majority of the faculty met the two-part test, as it was shown that the staff members didn’t contribute to the religious environment of St. Xavier and therefore were protected by the NLRA. The only part-time staff exempted under the test were those working within St. Xavier’s Religious Studies program.

While in this case much of the staff received NLRA protection, this may not always be the case when it comes to private church-based schools, because of the exemptions of the two-part test as outlined by the NLRB. Under the NLRA, a private church-affiliated school would be held to the same requirements as a traditional college or university for teachers of non-religious subjects.

“This is similar to how faculty is treated at non-religiously affiliated institutions,” said Broderick. “However, there is an exception for teachers that teach religious subjects.”

Offering NLRB protection to secular staff could open these private religious schools to litigation if they don’t follow the NLRB standards as set under the NLRA.

“Religiously affiliated institutions would be subject to claims filed under the NLRA with the National Labor Relations Board,” said Broderick.

Job descriptions become particularly important in determining if the staff of these religious-based schools fall under the NLRB jurisdiction and are covered under the NLRA, and the NLRB's stance may require these schools to update their information accordingly to avoid litigation now and in the future, he said.

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