Shaliehsabou v. Hebrew Home

PUBLISHED
Filed: May 24, 2004

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

FERMAN SHALIEHSABOU, 
Plaintiff-Appellant,
v.
 No. 03-1314
(CA-02-284-AW)
HEBREW HOME OF GREATER
WASHINGTON, INCORPORATED,
Defendant-Appellee.


ORDER

Appellant filed a petition for rehearing en banc.

A member of the Court requested a poll on the petition for rehear-
ing en banc. The poll failed to produce a majority of the judges in
active service in favor of rehearing en banc.

Judges Luttig, Michael, Motz and King voted to rehear the case en
banc. Chief Judge Wilkins and Judges Widener, Wilkinson, Nie-
meyer, Williams, Traxler, Gregory, Shedd and Duncan voted against
rehearing en banc. Judge Williams wrote an opinion respecting the
denial of rehearing and Judge Luttig wrote an opinion dissenting from
the denial of rehearing.

The Court denies the petition for rehearing en banc.

Entered at the direction of Judge Williams.
2 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON
For the Court,

/s/ Patricia S. Connor
Clerk

WILLIAMS, Circuit Judge, respecting the denial of rehearing en
banc:

The points raised by my colleague in dissent from the denial of
rehearing en banc are, in essence, responses to the panel opinion, to
which I refer the reader. See Shaliehsabou v. Hebrew Home, 363 F.3d
299 (4th Cir. 2004). I see no reason to elaborate further at this late
point in time. See, e.g., Jones v. Buchanan, 325 F.3d 520, 538-39 (4th
Cir. 2003) (Luttig, J., dissenting) ("[T]he formal release of an opinion
of law on behalf of the court is the final step in the court’s delibera-
tive process, not the first or merely another along the way toward the
final decision.").

LUTTIG, Circuit Judge, dissenting from the denial of rehearing en
banc:

In a landmark opinion, which the majority does not even realize to
be such, the majority holds that Ferman Shaliehsabou, an employee
compensated for his work in "activities performed for a common
business purpose," is beyond the coverage of section 7(a) of the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 207(a), because he falls
within the terms of a "ministerial" exception to the Act’s otherwise
expansive definition of the term "employee." No court has ever
excluded an employee from the coverage of the FLSA on this basis.
No court of appeals has ever done so. No district court has ever done
so.

Indeed, neither this court, nor any other appellate court, has ever
held that a "ministerial" exemption to the FLSA exists in any prior
decision. Our court seemed to assume that one existed in Dole v.
Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990). But in
that case we did not even state that such an exemption exists, much
less adopt such an exemption. Id. at 1396-97 (noting that employer
argued that employees fell within ministerial exemption to FLSA, dis-
 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON 3
cussing derivation of exemption, but never adopting such an exemp-
tion). And we certainly did not so hold: the court rejected the
argument that the employees in that case would fall within any such
exemption.

It is for good reason that no court has ever held there to be a "min-
isterial" exception to FLSA’s coverage. The exemption of "ministe-
rial" employees from the protections of the FLSA — which the
majority recognizes and construes broadly in its opinion — does not
find a single word of support in the text of the Act or in the Labor
Department’s rules and regulations interpreting it. As such, the major-
ity’s recognition of the exemption flies in the face of the Supreme
Court’s express direction that "[t]o extend an exemption to other than
those clearly and plainly within its [the FLSA’s] terms and spirit is
to abuse the interpretive process and to frustrate the announced will
of the people." See A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 493
(1945).

For these reasons, which I set forth in detail below, I dissent from
the court’s refusal to rehear this case en banc.

I.

A.

Although the majority does not acknowledge the novelty of its
holding, the "ministerial" exception to the definition of "employee"
on which it rests its exclusion of Shaliehsabou, has no basis in the
statutory text of the FLSA. The Act defines "employee" in "exceed-
ingly broad" terms, see Tony & Susan Alamo Found. v. Secretary of
Labor, 471 U.S. 290, 295 (1985), to "mean any individual employed
by an employer," 29 U.S.C. § 203(e), and the term "employ" in simi-
larly broad terms to mean "to suffer or to permit to work." 29 U.S.C.
§ 203(g). Thus, where an individual is "suffered or permitted to work"
by an employer in expectation of compensation for that work, he is
an "employee." See Alamo Found., 471 U.S. at 302. As the Supreme
Court has made clear, "the test for employment under the Act is one
of economic reality," id. at 301, i.e. whether the persons in question
undertook the covered activities "in expectation of compensation," see
id. at 302. The fact that an individual is a "ministerial" employee or
4 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON
that his primary duties are religious in nature has no bearing on this
determination.

The "ministerial exemption" also has no basis in any of the dozens
of statutory exemptions from the FLSA included in the Act itself.
Despite the breadth of the FLSA’s definition of "employee," the
FLSA specifically provides that the term "does not include" certain
agricultural employees, 29 U.S.C. § 203(e)(3), and volunteers for
state public agencies, § 203(e)(4). In addition, the Act expressly
exempts from its coverage "executive, administrative, and profes-
sional" employees, 29 U.S.C. § 213(a)(1), agricultural employees,
§ 213(a)(6), babysitters, § 213(a)(15), computer programmers and
software engineers, § 213(a)(17), newspaper deliverers, § 213(d), and
even certain home wreath makers, id., among others. See also 29
U.S.C. §§ 213(a)(1)-(17), 213(b)(1)-(30), 214(h)-(j). But it does not
exclude "ministerial" employees from the definition of "employee"
and it provides no exemption for "ministerial" employees. See Powell
v. United States, 339 U.S. 497, 517 (1950) (providing that the FLSA’s
"specificity in stating exemptions strengthens the implication that
employees not thus exempted . . . remain within the Act").

In sum, the FLSA is completely bereft of any language that even
conceivably could be construed to create the "ministerial exception"
to the definition of "employee" recognized, and relied upon, by the
majority. For this reason alone, the majority’s holding is in obvious
conflict with a long line of Supreme Court precedent, directing that
the FLSA be construed "liberally to apply to the furthest reaches con-
sistent with congressional direction," Alamo Found., 471 U.S. at 296,
and exemptions from its coverage strictly limited to those "clearly and
plainly within its terms and spirit." A. H. Phillips, Inc., 324 U.S. at
493; see also Powell v. United States, 339 U.S. at 517. As the Court
has explained many times, "[w]hen Congress provides exceptions in
a statute, it does not follow that courts have authority to create others.
The proper inference . . . is that Congress considered the issue of
exceptions and, in the end, limited the statute to the ones set forth."
United States v. Johnson, 529 U.S. 53, 58 (2000); TRW, Inc. v.
Andrews, 534 U.S. 19, 28 (2001); Andrus v. Glover Constr. Co., 446
U.S. 608, 616-17 (1980).

And what is more, even were one concerned about the FLSA’s reg-
ulation of religious activities, the recognition of a "ministerial"
 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON 5
exemption to the term "employee" would not be necessary. As the
Hebrew Home admits in its Response to Shaliehsabou’s Petition for
Rehearing, "most of the ‘employers’ of [ministerial employees] (e.g.
churches) are not covered under the FLSA because they are not
‘enterprises engaged in commerce or the production of goods for
commerce.’ 29 U.S.C. § 203(r)." Appellee’s Response to Petition for
Rehearing En Banc at 2; see also id. at 6 ("The scarcity of reported
decisions is undoubtedly due to the fact that the vast majority of ‘min-
isterial’ personnel are employed by institutions — such as churches
— that are not FLSA-covered ‘enterprises.’"). And, even where reli-
gious organizations are "engaged in commerce," the FLSA, by its
own terms, "reaches only the ‘ordinary commercial activities’ of
[those] organizations and only those [employees] who engage in those
activities in expectation of compensation." Alamo Found., 471 U.S.
at 302 (citing 29 C.F.R. § 779.214). Quite clearly then, even absent
a judicially-created "ministerial" exception, the Act does not cover
employees engaged in the vast majority of activities that religious
organizations perform.

In this case, however, Congress has provided unequivocally that
the activities of the Hebrew Home at issue here, activities performed
"in connection with the operation of . . . an institution primarily
engaged in the care of . . . the aged (regardless of whether or not such
. . . institution . . . is operated for profit or not for profit)," "shall be
deemed to be performed for a business purpose," and, therefore, sub-
ject to the provisions of the FLSA. 29 U.S.C. § 203(r)(2). This provi-
sion may not extend to all employees of the Hebrew Home; for
instance, it may be held that a rabbi does not act "in connection with
the operation" of the Home because he works in a purely spiritual
capacity and not "in connection with" any of the Home’s operational
activities. But, as both the majority and the Hebrew Home fully
acknowledge, the activities performed by Shaliehsabou are on the
other side of this divide because preparation of food in which a mash-
giach participates, unlike the spiritual work of a rabbi, clearly is
undertaken "in connection with" the operation of the Hebrew Home.
See 29 U.S.C. § 203(r)(2); 29 C.F.R. § 779.214.
6 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON
B.

The basis for the majority’s holding that "ministerial" employees
are not "employees" within the meaning of the FLSA is a single
exchange on the House floor during a 1966 debate over an amend-
ment to the definition of the term "enterprise" in a proposed reform
bill to the Act.1 See Slip Op. at 9; Shenandoah Baptist Church, 899
F.2d at 1396. While the exchange unquestionably demonstrates that
one (and possibly even two) Members of the House believed that
"members of a religious order" were not "employees" within the
meaning of the Act, it fails miserably as an expression of congressio-
nal intent. As both this court and the Supreme Court have recognized
numerous times, "[t]he remarks of individual legislators, even spon-
sors of legislation, . . . are not regarded as a reliable measure of con-
gressional intent." Roy v. County of Lexington, South Carolina, 141
F.3d 533, 539 (4th Cir. 1998); West Virginia Univ Hosp., Inc. v.
Casey, 499 U.S. 83, 98-99 (1991); Weinberger v. Rossi, 456 U.S. 25,
35 (1982). This is especially true in a case such as this one, where the
meaning of the statutory text is perfectly clear, see, e.g., Bath Iron
1
Shenandoah Baptist Church quoted the following exchange, which
the majority credits in its opinion for providing the foundation for a
"ministerial exemption":
Mr. PUCINSKI. Let us consider a parochial elementary school,
in which the nuns do the work in the cafeteria. Would they have
to be paid a minimum wage?
Mr. COLLIER. No, they would not be covered.
Mr. BURTON of California. Mr. Chairman, will the gentleman
yield?
Mr. COLLIER. I am delighted to yield to the gentleman from
California.
Mr. BURTON. As I understand, it is not the gentleman’s inten-
tion to include members of a religious order under the definition
of an employee, and therefore a nun would not be considered an
employee. Therefore, a minimum wage would not be required to
be paid a nun. Am I correct in my understanding of the gentle-
man’s intention?
Mr. COLLIER. That is correct. I did not intend to cover them.
Shenandoah Baptist Church, 899 F.2d at 1395 (quoting 112 Cong. Rec.
11371 (1966)).
 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON 7
Works Corp. v. Director, 506 U.S. 153, 166 (1993); Regan v. Wald,
468 U.S. 222, 237 (1984); Pennsylvania R.R. Co. v. Internat’l Coal
Mining Co., 230 U.S. 184, 199 (1913); the debate in which the rele-
vant exchange occurred did not concern the term it is offered to modify;2
and Congress modified the definition of the term at issue immediately
following the debate in which the relevant exchange took place, but
not in the way suggested by the exchange.3 See 29 U.S.C. § 203(e)(3),
Pub. L. 89-601.

Nevertheless, apparently premised on this single exchange, the
Wage and Hour Division of the Labor Department has taken the posi-
tion in its Field Operations Handbook that,

Persons such as nuns, monks, priests, lay brothers, minis-
ters, deacons, and other members of religious orders who
serve pursuant to their religious obligations in the schools,
hospitals, and other institutions operated by their church or
religious order shall not be considered to be ‘employees.’
2
At the time of the exchange, Congress was debating whether to
amend the term "enterprise," in a proposed reform to the FLSA, to
include public and private elementary and secondary schools; it was not
considering the meaning of the term "employee," in which the majority
locates a "ministerial exemption." Thus, Congress’ eventual adoption of
the amendment, expanding the definition of "enterprise," indicated noth-
ing whatsoever about whether Congress shared the view of the sponsor
of the amendment on the proper construction of the term "employee."
Indeed, it is doubtful that many, if any, of the other Members of Con-
gress who voted on the amendment were even aware that the exchange
had taken place.
3
After Congress adopted the amendment adding elementary and sec-
ondary schools to the proposed reform of the FLSA, it enacted into law
the entire bill of which it became a part. The enacted legislation to the
FLSA carved out certain exceptions from the otherwise expansive defini-
tion of "employee," but, again, included no exception for "ministerial"
employees or members of a religious order. See 29 U.S.C. § 203(e)(3),
Pub. L. 89-601. Put another way, immediately following the debate in
which the exchange relied upon by the majority took place, Congress
voted to limit the scope of the term "employee," but it did not adopt the
exclusion of "ministerial" employees suggested in the exchange.
8 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON
See Field Operations Handbook (FOH), Wage and Hour Division,
U.S. Dep’t of Labor, § 10b03 (1993). This assertion ultimately pro-
vides little support for the existence of such an exception to the defi-
nition of "employee," however. The Supreme Court has squarely held
that positions taken solely in enforcement manuals, such as the Field
Operations Handbook, are not entitled to "Chevron-style deference."4
See Martin v. Occupational Safety and Health Review Comm’n, 499
U.S. 144, 157 (1991) (providing that the Labor Department’s Field
Operations Manual for OSHA is not entitled to Chevron deference);
Christensen v. Harris County, 529 U.S. 576, 586 (2000) (explaining
that "interpretations contained in policy statements, agency manuals,
and enforcement guidelines . . . do not warrant Chevron-style defer-
ence"). They are entitled to respect, but "only to the extent that [they]
ha[ve] the power to persuade."5 Christensen, 529 U.S. at 586. The
Handbook provides no rationale at all for its exclusion of "members
of religious orders" from the FLSA’s broad definition of "employee,"
and, therefore, has no persuasive power beyond the exchange on the
House floor on which it was based.
4
Even were we required to accord positions taken in the Field Opera-
tions Handbook deference under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), we could not do
so here because, as detailed above, this interpretation is clearly forbidden
by the plain language of the Act, id. at 842-43, and, assuming it ever
could, see I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 452-53 (1987)
(Scalia, J., concurring), the legislative history in this case does not
approach the level of certainty necessary to support an agency interpreta-
tion in the face of such statutory clarity. Ante at 4-5.
5
By the Department of Labor’s own account, the Handbook is "not
used as a device for establishing interpretative policy." See Field Opera-
tions Handbook, Foreword at 1; United States v. Mead Corp., 533 U.S.
218, 230 (2001). The interpretations announced therein are not devel-
oped after notice-and-comment rulemaking, see Mead Corp., 533 U.S. at
230, and, as the interpretation included in the Field Operations Hand-
book conclusively demonstrates, are not intended as part of the Labor
Department’s official rules and regulations — an intention confirmed by
the fact that the Labor Department’s official regulations, as expressed in
the Federal Register and the Code of Federal Regulations, provide no
similar exemption for "ministerial employees." Rather, they are meant
only to provide guidance for employees of the Wage and Hour Division
charged with enforcing the FLSA.
 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON 9
In short, there is no foundation for a "ministerial exemption" to the
FLSA in the text of the Act itself — either in its definition of "em-
ployee" or in the many, statutory exemptions from its coverage — or
in the Labor Department’s rules and regulations, interpreting it. And
the minimal support that the exemption does find in the legislative
history and the Labor Department’s Field Operations Handbook only
underscores the weakness of the legal basis for the exemption.

II.

And yet, the majority not only accepts such an exemption from the
FLSA without so much as questioning the soundness of its founda-
tion, but expands the contours of the exemption far beyond that which
even the exemption’s shaky foundation can support. In so doing, the
majority rejects the only conceivable basis for a ministerial exemption
in sources related to the Act itself, and, instead, adopts wholesale the
contours of the constitutionally-required exception of "ministerial"
employees from the coverage of Title VII and other civil rights laws.

A.

Although it lacks any credible support in the FLSA, the exemption
of "ministerial" employees from the FLSA adverted to in the
exchange on the House floor and described by the Labor Depart-
ment’s Field Operations Handbook, see ante at 3-8, is, at least, nar-
row. See also Shenandoah Baptist Church, 899 F.2d at 1397 n.15.
The exchange on the House floor, which gave rise to the exemption,
suggested (at most) that "members of a religious order" would not be
considered to be "employees" under the FLSA. See note 2. Even more
narrowly, the exemption detailed in the Field Operations Handbook,
and based on this exchange, provided that, "[1] members of religious
orders who [2] serve pursuant to their religious obligations [3] in the
schools, hospitals, and other institutions operated by their church or
religious order shall not be considered to be ‘employees.’" FOH,
§ 10b03.

Though the majority does not even realize that it does so, the "min-
isterial exemption" it embraces in its opinion simply ignores these
sources from the FLSA and, thereby, eviscerates the limitations that
they place on the scope of a "ministerial" exemption from the Act. To
10 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON
fall within the terms of the "ministerial" exemption adopted by the
majority, an employee need not be a "member of a religious order,"
as the exchange on the House floor indicates he would, or "serve pur-
suant to his religious obligation," see FOH at § 10b03, or work in an
"institution[ ] operated by [his] church or religious order," as the
Field Operations Handbook requires. Rather, the majority holds that,
so long as (1) an employee’s "primary duties consist of teaching,
spreading the faith, church governance, supervision of a religious
order, or supervision or participation in religious ritual and worship,"
see Slip Op. at 10, and (2) that employee is employed by a
"religiously-affiliated" institution "marked by clear or obvious reli-
gious characteristics," see Slip Op. at 16, he is exempt from the cover-
age of the FLSA.

In application, the relative difference in scope between the exemp-
tion for employees whose "primary duties" are religious in nature
adopted by the majority and that described on the House floor and in
the Field Operations Handbook is breathtaking. Applying the "minis-
terial" exemption from the Title VII context, which is embraced by
the majority, courts have excluded employees of "religiously-
affiliated organizations," as far afield as non-ordained faculty at a
seminary, EEOC v. Southwestern Baptist Theological Seminary, 651
F.2d 277, 283 (5th Cir. 1981); professors of religion at religiously-
affiliated universities, EEOC v. Catholic Univ., 83 F.3d 461 (D.C.
Cir. 1996); press agents and other employees charged with the distri-
bution of a religious message, Alicea-Hernandez v. Catholic Bishop
of Chicago, 320 F.3d 698 (7th Cir. 2003); choir directors and part-
time music teachers, EEOC v. Roman Catholic Diocese of Raleigh,
213 F.3d 795, 800 (4th Cir. 2000); Starkman v. Evans, 198 F.3d 173
(5th Cir. 1999); and chaplains in religiously-affiliated hospitals, see
Scharon v. St. Luke’s Episcopal Presbyterian Hosp., 929 F.2d 360
(8th Cir. 1991). And in this case the majority excludes Shaliehsabou,
an employee charged with supervising the preparation of foods in the
kitchen of a nursing home to ensure that those foods are in compli-
ance with Jewish dietary laws. Needless to say, none of these employ-
ees would have been excluded had the employer been required to
demonstrate, as the Department of Labor’s Field Operations Hand-
book mandates, that the employee in question was a member of a reli-
gious order, serving pursuant to a religious obligation, and that the
 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON 11
employer was not simply affiliated with a religious organization but
operated by it. See FOH, § 10b03.

While the majority characterizes its holding that the "ministerial
exemption" to the FLSA is "coterminous in scope" with that recog-
nized to Title VII as a "common sense approach" to construing the
two exemptions, Slip Op. at 10, even a cursory review of the grounds
for such a holding reveals it to be anything but. Most fundamentally,
the legal foundation for a "ministerial" exemption to the FLSA, such
as it is, is plainly unrelated to the basis on which the exemption of
"ministerial" employees from the coverage of Title VII rests; and this
distinction requires that the two exemptions be interpreted differently.
As the majority acknowledges, "the Title VII ministerial exception is
based on constitutional principles and not on ‘congressional debate’
and Labor Department guidelines as is the FLSA exception." Slip Op.
at 10. It is clear from the discussion above, ante at 7-9, that the "con-
gressional debate and Labor Department guidelines," on which a
"ministerial exemption" to the FLSA, if one exists, must be based,
describe an exemption the narrow terms of which cannot be recon-
ciled with the expansive scope of the exemption compelled by consti-
tutional concerns in the Title VII context and adopted by the majority
for the FLSA.6 Therefore, to hold, as the majority does, that the two
exemptions are coextensive in scope, is not merely to set the contours
of the "ministerial exemption" to the FLSA arbitrarily, though it is
that; it is to exaggerate the scope of the exemption to such an extent
that it is demonstrably at odds with even the highly questionable
grounds that give rise to it in the first place.

B.

The reasons the majority provides in support of its holding that the
6
Underlining this conflict in the substantive content of the two respec-
tive exemptions are the irreconcilable principles that animate their con-
struction. Whereas it is "well-settled" that exemptions to the FLSA,
including, if it exists, the "ministerial" exemption, are to be narrowly
construed, see, e.g., Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295
(1959); Shenandoah Baptist Church, 899 F.2d at 1397, "the ministerial
exception to Title VII is robust where it applies," Roman Catholic Dio-
cese, 213 F.3d 795, 801 (4th Cir. 2000).
12 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON
two exemptions are coextensive only highlight that holding’s indefen-
sibility.

The majority’s primary argument in support of its holding that the
two exemptions are coterminous is that "we implicitly have held"
such already. Slip Op. at 10. It is not even arguable that we have held
such, however — even "implicitly." The majority reasons that,

we have relied on Title VII ministerial exception cases in
[Shenandoah Baptist Church], and we have cited both
[Shenandoah Baptist Church] and Title VII cases together
in support of the proposition that "[t]he ministerial excep-
tion operates to exempt from the coverage of various
employment laws the employment relationships between
religious institutions and their ‘ministers.’"

Slip Op. at 10 (citing EEOC v. Roman Catholic Diocese of Raleigh,
N.C., 213 F.3d 795, 800 (4th Cir. 2000)) (emphasis added). The pre-
cedent relied upon by the majority suggests nothing of the sort. First,
in Shenandoah Baptist Church, we did not "rely on Title VII ministe-
rial exception cases" for our holding; in fact, we did not even discuss
such cases other than to explain that the two Title VII cases identified
by the employer were factually distinct and, therefore, irrelevant. See
Shenandoah Baptist Church, 899 F.2d at 1396; id. at 1396 n.13. The
majority’s other purported proof, the inclusion of Shenandoah Baptist
Church in a string citation of cases in support of the proposition that
"the ministerial exception operates to exempt from coverage of vari-
ous employment laws the employment relationships between religious
institutions and their ‘ministers,’" Slip Op. at 10, is even less persua-
sive. The case in which the citation appears, Diocese of Raleigh, was
a Title VII case, and neither the scope — nor, for that matter, the exis-
tence — of a "ministerial" exemption to the FLSA were even before
the court. It goes without saying that dicta in such a case cannot
impart to Shenandoah Baptist Church a meaning that it cannot sup-
port on its own terms. Thus, the majority’s insistence that our prior
precedent required its holding that the ministerial exemption to the
FLSA is coterminous with the exemption to Title VII cannot be sup-
ported by the evidence that it relies upon.
 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON 13
Next, the majority suggests that it must construe any exemption
from the FLSA for "ministerial" employees to be coextensive with
that for Title VII in order to "avoid answering a difficult constitu-
tional question — i.e., whether the First Amendment would otherwise
compel an exception to the FLSA coextensive with that recognized as
constitutionally mandated in the Title VII context." Slip Op. at 11.7
This passing suggestion cannot be taken seriously. Even if there were
"serious constitutional concerns" about the application of the FLSA
to "ministerial" employees of the Hebrew Home, it would not be open
to the majority to rewrite the FLSA to avoid those constitutional prob-
lems in this case. As the Supreme Court has recognized time and
again, "the canon of constitutional avoidance has no application in the
absence of statutory ambiguity." See United States v. Oakland Canna-
bis Buyers’ Cooperative, 532 U.S. 483, 494 (2001); Rayburn, 772
F.2d at 1166.

But, here, it is perfectly clear that the application of the FLSA to
employees like Shaliehsabou at the Hebrew Home does not raise "se-
rious constitutional concerns" in the first instance, which is doubtless
why Hebrew Home did not even suggest as much in its brief to the
court. The Supreme Court has explicitly held that the application of
the record-keeping provisions of the FLSA to religiously-affiliated
organizations such as the Hebrew Home, engaged in "commercial
activities undertaken with a business purpose," "bear[s] no resem-
blance to the kind of government surveillance the Court has previ-
ously held to pose an intolerable risk of government entanglement
with religion." Alamo Found., 471 U.S. at 305; Shenandoah Baptist
7
The majority also offers that construing the two exemptions to be
coterminous "creates continuity between the FLSA and Title VII, two
employment laws of general applicability," Slip Op. at 11, and, similarly,
that "courts are [ ] familiar and comfortable with examining the duties of
an employee when determining the scope of exceptions under the
FLSA." Slip Op. at 11. The majority does not attempt to explain the rele-
vance of these observations to the proper construction of the exemption
to the FLSA, however, and it is difficult to even imagine what role they
would play. Neither "continuity" between exemptions in the FLSA and
Title VII, nor the similarity of exemptions within the FLSA, would be
desirable in the least where such comes at the cost of fidelity to congres-
sional intent.
14 SHALIEHSABOU v. HEBREW HOME OF GREATER WASHINGTON
Church, 899 F.2d at 1399 (same). This holding would apply equally
to the application of the FLSA’s overtime provisions. Like the impo-
sition of the sales and use tax at issue in Jimmy Swaggart Ministries
v. Board of Equalization of California, 493 U.S. 378 (1990), the
requirement that the Hebrew Home pay employees, like Shaliehsa-
bou, overtime does not require the government — or the court — to
question the Hebrew Home’s religious beliefs, inquire into the reli-
gious nature of the activities that Shaliehsabou performs, or to
become involved in any way in the governance or functioning of the
institution. See Jimmy Swaggart Ministries, 493 U.S. at 395-97. In
fact, as the Court observed in Jimmy Swaggart Ministries, it is ironi-
cally the majority’s theory, "under which government may not [apply
the terms of the FLSA to] ‘religious core’ activities but may [apply
the FLSA to] ‘nonreligious’ activities," that "require[s] government to
. . . ‘determine which [activities] are religious and which are secu-
lar.’" Id. at 396-97.

III.

In sum, the majority recognizes an exemption from the FLSA for
"ministerial" employees without support in the text of the Act and in
direct violation of Supreme Court precedent — and without even a
hint of recognition that it does so. Then, equally unaware, it vests that
exemption with a life of its own, untethering the scope of the exemp-
tion from the only (precarious) basis for its existence and holding it
instead to be coextensive with the unrelated exception from Title VII
for "ministerial" employees.

Because the court’s novel holding is unsupportable on any ground
that I can imagine, I would rehear the case en banc, and I dissent from
the full court’s unwillingness to do so.