Employment Law and the Church

By David O. Middlebrook

Most churches are employers. In addition to clergy, they may employ a secretary, custodian, music director or business administrator. Therefore a church may be subject to a number of laws pertaining exclusively to employers.

The import of these laws is reviewed below with a focus on Federal employment law. It is important to recognize that most states and some local governments have enacted employment laws which may mirror Federal statutes discussed or may enlarge the regulations of the Federal Government.

Historically employers were granted broad latitude in the area of hiring and firing employees. This authority was granted to them by a doctrine in the law called the "Employment At Will Doctrine." Under the Employment At Will Doctrine an employer has the right to fire an employee at any time with or without notice, and with or without cause. Presently the Employment At Will Doctrine is still a viable legal doctrine but it has been weakened over the years by numerous court decisions and Federal law. As a church administrator you should understand that the Employment At Will Doctrine is modified by court decisions; Federal and State laws and regulations; and employment contracts.

Termination for good cause

An employer may always discharge an employee for good cause, even if an employment contract provides for a definite term of employment. Good cause for discharging an employee is defined as the employee's failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances. An employee's act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship. The standard for measuring an employee's job performance is whether the employee performed the duties involved "substantially" or "reasonably well," rather than whether the employee achieved specific results, unless the employment agreement required specific results.

In general, an employee has an implied duty to do no act that would tend to injure the employer's business or reputation. A breach of this obligation justifies the employee's discharge. Similarly, an employer has good cause for discharge if an employee's conduct toward fellow employees or others with whom the employee has contact interferes with the employer's business discipline.

Note, however, if an employer discharges an employee for a stated reason, the employer may not later defend the termination in court using another ground that the employer knew or should have known at the time of the discharge.

Exceptions to the doctrine

It can be argued that no area of the law has undergone more expansion in recent years than the area of laws regulating private employers in their relationship to their employees. Churches should recognize that not only has Congress enacted the laws but state legislatures and local governments have also enacted laws affecting the employment relationship. A church's failure to take into consideration such laws and regulations exposes the church to a significant risk of liability as it relates to employment decisions.

State laws
An employer's right to fire an employee is subject to certain limits under statutory and case law. Many states have imposed various limitations on an employer's right to discharge an employee. Examples of these limitations include: (a) workers' compensation; (b) state military service; (c) court appearances or jury service; (d) union membership or nonmembership.

Federal laws
1. Title VII of the 1964 Civil Rights Act

This states: It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion, sex, or national origin.

It applies to your church if your church meets the 15-employee requirement or the "affecting commerce" requirement.

A church must have 15 or more full or part time employees for each working day in each of 20 or more calendar weeks in the current or proceeding calendar year. But note that under the ruling in Walters v. Metropolitan Educational Enterprises, Inc., 95-259 and 95-779 (Jan. 14, 1997), all employees on a weekly payroll should be counted in determining whether an entity can be sued under Title VII, regardless of how many days employees actually work or get paid in a given week.

The "affecting commerce" requirement is subject to determination by the court. In some cases, merely using the services of out of state vendors, or engaging in telephonic interstate conversations, theoretically, could result in a decision by a judge that the church is involved in affecting commerce.

As such, any church that employs 15 or more full or part time employees should consider itself covered by Title VII. Further, as a "safe harbor" approach, all churches should consider complying with Title VII rather than subjecting themselves to a lawsuit that would require them to prove that they are not within its jurisdictional requirements.

The Equal Employment Opportunity Commission enforces Title VII. If your church or ministry is notified that a complaint has been filed with the Equal Employment Opportunity Commission, it is recommended that legal counsel be immediately consulted to assist in the investigation and response procedure. Under no circumstances should the charge be ignored or the allegation be minimized.

Title VII, Section 702 of the Civil Rights Act specifically exempts religious corporations, associations, educational institutions or societies with respect to the employment of individuals. Therefore, a church may discriminate on the basis of religion in all employment decisions.

2. Age Discrimination in Employment Act (ADEA)

Congress enacted the "Age Discrimination in Employment Act" (ADEA) in 1967. It applies to employers with 20 or more employees in an industry affecting commerce. The ADEA prohibits employers from discriminating on the basis of age against employees or employee applicants who are or over 40 years regarding hiring, firing, compensation, or terms, conditions or privileges of employment. As a general rule there is no upper limit on age. Therefore, it is a violation of the ADEA, except under very narrow circumstances, for an employer to force an employee into retirement, even if that employee has qualified under a pension or retirement benefit plan.

Further, it is a violation for an employer to fail to provide the same insurance and retirement benefits for all employees of all ages. Any church or ministry considering a reduction in force ("RIF") must also consider the implications of such a RIF on employees covered by the ADEA or the Older Worker Benefit Protection Act of 1990. It is strongly recommended that any consideration of performing a RIF be made only with the assistance of competent legal counsel.

3. Americans With Disabilities Act (ADA)

The ADA provides that no employer that has 15 or more employees may discriminate against any "qualified individual with a disability" in regard to "job application procedures, the hiring, the advancement, or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment." The term "disability" is defined by the Act as a "physical or mental impairment that substantially limits one or more of the major life activities of such individual."

If a qualified applicant is disabled, the law requires an employer to make "reasonable accommodations" to employ the disabled applicant unless those accommodations would impose an "undue hardship" on the employer.

The ADA also prohibits discrimination in public accommodations. However, churches are specifically exempted from this provision. Church administrators should be familiar with state or local laws regarding this issue.

Churches that are covered by the Americans with Disabilities Act may not discriminate against an individual because he or she has AIDS or because that person has a family member with the disease. Additionally, most states and some local ordinances prohibit discrimination against persons with AIDS.

4. Fair Labor and Standards Act (FLSA)

The Fair Labor and Standards Act (FLSA), most generally referred to as "wage and hour laws," is a very large and complex area of the law. Additionally, most states have enacted their own wage and hour laws of which churches should be very familiar. Churches should work closely with legal counsel and their CPA to determine categories of "exempt" and "non-exempt" employees and to conform compliance with various provisions of the wage and hour laws promulgated by the FLSA. Churches that operate day care centers or church schools should be especially concerned about compliance with FLSA requirements.

5. Family Medical & Leave Act (FMLA)

This legislation enacted and effective as of August, 1993, requires employers with 50 or more employees to provide up to 12 weeks of unpaid leave to eligible employees because of the birth or adoption of a child or because of a serious health condition of the employee or the employee's child, parent or spouse.

"Eligible employees" covered by the Act must have been employed at least 12 months by the covered employer and have worked at least 1250 hours during the previous 12-month period. Note that the Act does not require covered employers to provide paid leave for employees qualified under the Act. Violations of the law can result in damages for lost wages, salary benefits, compensation, court costs and attorney's fees.

Churches or ministries with 50 employees or more should work closely with legal counsel to assure compliance with the technical requirements of the law and to avoid violation of its mandates.

6. Immigration Law (IRCA)

The Immigration Reform and Control Act was enacted in 1986. All churches and religious organizations are subject to the rules contained within the Act. The IRCA applies to all employers employing one or more persons. Therefore all churches are required to comply with the statute's regulations.

The law requires employers, including churches, to do five things:

• Complete the top half of Form I-9 on or before the date the employee starts work.
• Check original documents establishing every new employee's identity and eligibility to work.
• Complete the bottom half of Form I-9 by certifying that you inspected the original documents verifying the employee's identity and eligibility to work.
• Retain every Form I-9 for at least three years.
• Present a Form I-9 for inspection to an Immigration and Naturalization Service or Department of Labor officer upon request. (NOTE: I-9 is not filed with the government. The burden is placed upon the employer to retain the document for inspection by the appropriate government employee).

All employees, whether U.S. citizens or not, are required to complete an I-9 Form and provide the required documents. Self employed or contractual workers are not required to complete and I-9 Form. The I-9 Form need only be completed by people you actually hire and not by job applicants. Failure to comply with the law will result in monetary penalties. Employers that knowingly hire illegal aliens face fines up to $10,000 for each illegal alien hired. (This is only an overview of the law. If you have specific questions, consult with a qualified attorney who is familiar with the complete requirements of IRCA and the church's obligations under it.)

7. Pregnancy Discrimination Act (PDA)

In 1978, Congress enacted the "Pregnancy Discrimination Act" which amended Title VII and broadened sex discrimination to include discrimination on the basis of pregnancy, childbirth and related medical conditions. This Act does not require paid or unpaid maternity leave but does require that pregnancy be treated the same as any other medical condition. If your church or ministry has more than 50 employees, then the "Family Medical and Leave Act" is implicated and you may have additional obligations to pregnant employees.

The pastor-church exception

The First Amendment guarantee of religious freedom is so strong the courts of this country are hesitant to interfere in a church's decision regarding the employment of a minister. Consequently the Federal employment laws previously discussed provide very little, if any, protection from unfair or discriminatory employment practices by churches.

Absent an employment agreement, churches are free to consider a pastor's sex, age and race in making employment decisions. This is because to permit pastors to bring suit against the church and bring into question the church's employment decisions would give rise to serious constitutional questions and would necessarily lead to entanglement between the church and the State which is forbidden by the First Amendment.

If you have specific questions, please consult with a qualified attorney who is familiar with the complete requirements of federal and state employment laws.

David O. Middlebrook is a partner in the Irving, TX law firm of Brewer, Brewer, Anthony & Middlebrook. He is an attorney for the American Center for Law and Justice of Texas, Inc.

Caring For Children With Special Needs The Americans with Disabilities Act (ADA) requires that reasonable accommodation should be given to people with disabilities. The law covers children with disabilities seeking reasonable accommodation in a child-care setting including a church nursery. In addition to making physical changes, such as installing ramps, wide doors and ADA standardized restrooms, church administrators may need to provide for a child's special physical, emotional or psychological needs. Other special needs may include assistance in feeding, following special dietary requirements (if snacks or food are served), giving medicines and/or performing medical procedures and ensuring that special equipment operates or is used properly. Wheelchair-accessible ramps at North Phoenix Baptist Church Preschool in Phoenix, AZ are ADA-Compliant. Church administrators need to remember, before admitting a child with developmental disabilities, they should be able to answer the following questions: Does the child's disability require more care than you reasonably are able to provide? Do the church nursery attendants have the skills and abilities needed to perform medical or other duties required for the child's care? Is the facility equipped to meet the health and safety needs of this child? Is the extra time that will be devoted to taking care of this child more than you can handle without putting the other children at increased risk or without causing you to neglect their needs? In deciding whether to admit a child with special needs, church administrators as well as nursery providers should meet with the child's parents and health-care providers to discuss the particular needs of the child. They should tell you the special requirements the church will need to meet and specific procedures staff will need to do. They also should be able to give administrators an idea of how much of the staff's time the child's special needs will take. In addition, the parents or health-care professionals should be able to help train the church's staff to perform any required medical procedures as well as provide written instructions for procedures, schedules for administering medicine and menus to any special eating requirements. If the nursery is large enough, the child may need to be placed with younger children that are at the same developmental level as the child. The child's health care professional should be able to help you with this and other decisions that need to be made. In addition, both the parents and the health-care professionals should serve as consultants whom nursery staff can call for advice to make sure the child's special needs are being met. The ADA requires that every effort to reasonably accommodate the disabled be made. In most cases, such accommodation is compatible with a safe and healthy environment in which all children in the nursery can thrive. As a provider responsible for all the children in the church's care, administrators should ensure that the extra demands for a child with special needs are supported with additional resources and the support the child needs.