Freedom of Religion = Freedom from Workers' Comp?

Tuesday, May 7, 2013 | 0

When Jakob Hutter founded the Hutterian Brethren Church in the 1530s, he was not worried about workers' comp (which would not exist for another 350 years). He just wanted the freedom to practice his communal religion in what is now Germany/Austria. He incurred the wrath of Ferdinand I, who, in the name of the gentle Jesus, arrested and tortured Hutter and then burned him at the stake. An inauspicious beginning to what has proven to be a stubborn, if marginal sect.

The Hutterites eventually fled Europe and found their way to the western United States and Canada. Montana has about 30 Hutterite communities in the conservative Lehrerleut tradition, each involving about 100 or so members. Community members do not own property or earn wages, they do not pay for clothing and shelter and they receive free medical care, including care for any disabling injuries. (The Hutterites, surprisingly, do have a website.) For many years they worked on their farms and, like the Amish in Pennsylvania (blogged here), they were exempt from workers' comp.

As the Lehrerleuts branched out into construction work beyond their own communities, the issue of unfair competition was raised by secular contractors. As a direct result, the Montana Legislature passed HB 119, which defined religious communities as "employers" and community members as "employees." The Lehrerleuts sued (although normally participation in lawsuits is a violation of their faith). A deeply divided court ruled against the Lehrerleuts: they must participate in the state's workers' comp system. The next step will be an appeal to the U.S Supreme Court.

A Bad Match

The complex relationship between employment laws and religious groups is far beyond the scope of this blog. We focus, instead, on the interesting conundrums raised by trying to force the Hutterites into the comp system. To put it mildly, this is an awkward fit.

First and foremost, the Hutterites do not pay wages. Without wages, there can be no comp premiums, as these are calculated by multiplying class rates times payroll. Perhaps the court would require that the Hutterites take the total cost of a job, subtract materials and consider the remainder "payroll." But even so, this would be an approximation for what is an exacting requirement for other employers.

Then there is the issue of filing a claim. Every member of the Hutterite community signs a pledge not to file claims against the community and not to sue anyone for anything. Thus, even if a comp policy were to exist, it would never be used. To make this point even more dramatic, the majority of the Montana justices pointed out that the Hutterites were free to excommunicate any member who did file a claim. What an odd concession: the justices did not bother to explain how this would not be retaliation.

NOTE TO INSURERS: Write this policy! Even in the event of catastrophic injury, no claim will be filed.

And if Hutterites are subject to workers' comp, what about the Fair Labor Standards Act and OSHA requirements? The Montana court has not imposed these virtually universal standards on the Hutterites, but why not? What happens to the minimum wage when there are no wages? Can you limit hours worked when there is no payroll to track? How will you monitor underage community members operating equipment?

No Simple Solution

Forcing the Hutterites into the comp system may sound simple, but surely it is not. The majority quotes retired Supreme Court Justice Sandra Day O'Connor, who rejected a challenge brought by Native Americans to enjoin a United States forest service road through sacred areas:

However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government activities from social welfare programs to foreign aid to conservation projects will always be considered essential to the spiritual well-being of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions.