Written by Noel Sterett and Amy Parrish
Proverbs 26:10 teaches us that hiring just “any passerby” or “passing fool” is akin to an archer wounding people at random. Indeed, in many instances a bad hire may be a fatal blow to an otherwise healthy church —stunting the growth of the church, discouraging the congregation, and draining precious time and resources. And even when a “bad hire” is recognized, the damage is too often compounded by a “bad fire.” Here are ten ways your church can protect itself in hiring and firing decisions:
PROTECTION ONE: JOB DESCRIPTIONS
There should be a written job description for every paid position which should contain a description of the essential functions for the job and the requirements (physical, spiritual, etc.) of the person who will fill the position. A job description will also help during the employment relationship, annual reviews, and may protect the church in the case of termination. Churches may want to consider developing a standard application form for open positions in order to prevent any appearance of discrimination. A standard application form would include consents, authorizations, and waivers for any background and reference checks.
PROTECTION TWO: SCREENING THOROUGHLY
Background checks are advised because generally the law recognizes a cause of action against an employer for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons. Volunteers are often considered employees for purposes of negligent hiring.
PROTECTION THREE: DO NOT DISCRIMINATE IN HIRING
While religious organizations are generally liable under Title VII of the Civil Rights Act of 1964 for employment discrimination, federal law provides that religious organizations are entitled to consider an applicant’s religious beliefs.
PROTECTION FOUR: FOLLOW CHURCH & DENOMINATION PROCEDURES
Be sure to follow the church’s bylaws and/or the church’s denominational standards when hiring, and be sure the church has appropriate bylaws which actually correspond to how the church operates.
PROTECTION FIVE: UNDERSTAND & COMMUNICATE AT-WILL EMPLOYMENT
If your church plant is in an “at-will” employment state like Illinois, you should communicate this policy to your employees at the time of employment. Churches must be careful in drafting all manuals, handbooks, applications, recruiting materials, and other documents to ensure consistency with this policy.
PROTECTION SIX: PUT EVERYTHING IN WRITING
Remember, the contract, the ethical conduct policy, and the bylaws are legal documents. They have specific legal consequences and should be prepared carefully. Employment contracts and benefits should be outlined in writing, approved and saved for the church’s records. Written employment contracts should address:
- Faith Statement
- Code of Conduct based on biblical standards
- Compensation, including whether the Pastor is allowed to accept compensation for work outside the congregation, such as speaking engagements, and what should be done with gratuities for presiding at weddings, funerals, etc.
- Benefits and Retirement Benefits
- Terms of employment
- Supervision and reporting
- Procedures for termination
- Dispute Resolution
PROTECTION SEVEN: CONSIDER AN EMPLOYEE HANDBOOK
Or, at the very least an Ethical Conduct Policy addressing Confidentiality, Financial Integrity, and Sexual Misconduct. Churches may consider developing employee handbooks for their employees. There is no requirement that employers have employee handbooks. If a church chooses to use an employee handbook, it must be clear, accurate, and up-to-date. Employment handbooks typically cover:
- The at-will employment policy;
- General employment issues such as hiring, orientation and training, working hours, preference for notices, performance appraisals, discipline policies, promotions, outside employment, employee classification, layoff, termination, and retirement;
- Compensation and pay practices, including compensatory time and overtime;
- Benefits, including holidays and vacations, retirement and savings plans, and educational assistance;
- Expense reimbursement;
- Safety and health issues;
- Meals and rest breaks, sick days, personal days, short term absences and long term absences;
- Personal behavior issues such as use of e-mail and internet; use of drugs, smoking, sexual harassment; and
- Access to personnel files and updating personnel information.
Employee handbooks should be worded in permissive rather than mandatory terms. They should explain what is generally or typically done rather than what is always done. This language ensures flexibility as situations warrant.
PROTECTION EIGHT: DISTINGUISH BETWEEN EMPLOYEES & VOLUNTEERS
Fair Labor Standards Act of 1938 Requires that covered employers pay (1) at least the minimum wage and (2) time-and-a-half for hours worked in excess of 40 in any given workweek, including on-call time if the person’s activities are restricted during that time. Employers are liable for unauthorized overtime if they permit the employee to work, even if the overtime was not specifically authorized. FLSA standards require that minors must be above 14 or 16 years of age to work in nonhazardous occupations and at least 18 years of age to work in hazardous occupations. Employers must classify their employees as either exempt from FLSA (e.g. salaried professionals and administrative personnel) or nonexempt (e.g. hourly skilled and non-skilled staff). The FLSA is administered by the Department of Labor.
Full Time v. Part Time
Since the FLSA sets a 40 hour work week as standard, this is typically considered full time, but churches can extend full time status to employees working as few as 30 hours per week. Full time status generally entitles employees for benefits. Part time employees are either ineligible for benefits or benefits are conferred on them on a partial or pro rata basis.
PROTECTION NINE: SUPERVISE & CONDUCT PERIODIC EVALUATIONS
Be honest and fair in evaluations and performance reviews and document the same, and be proactive in trying to avoid problems before it is necessary to terminate. Any time a supervisor is discussing employment issues with a Pastor, two members of the congregation should be present. Any time there is a disciplinary issue, two members of the congregation should be present. Avoid a he said/she said scenario. “Take two or three with you.” Matthew 18:19-20. The supervisors should also request feedback from the employee/Pastor. The evaluation process is a good time to discuss any ways in which the Church has not lived up to its commitments.
PROTECTION TEN: TERMINATE THOUGHTFULLY
Even in at-will employment state, an employer’s discretion is not absolute, and the at-will status cannot be relied on as a complete defense in some specific areas. The at-will employment policy is complex and subject to several court-created limitations. See Protecting At Will Employees Against Wrongful Discharge: The Duty To Terminate Only in Good Faith, 93 Harv.L.Rev. 1816, 1824, et seq. (1980). One specific exception to at-will employment is retaliatory discharge. A plaintiff can state a claim for retaliatory discharge if he or she can prove that the discharge was in retaliation for something the employee did. Another exception to at-will employment is defamation. Duncan v. Peterson, 359 Ill. App. 3d 1034 (Ill. App. 2d Dist 2005).
In general, when terminating a pastor/employee:
1. Pray for guidance.
2. Follow the procedures in place.
3. Do not act alone.
4. Never act out of anger. Make sure you investigate thoroughly before acting and keep notes of your investigation.
5. Do not rush to action. When you need to act in an emergency, suspend with pay rather than terminating right away.
6. Act based on job-related factors, not on personality or other factors not related to the job
7. Be consistent. Discrimination claims thrive where similar circumstances are not treated similarly.
8. Document your decision in writing. Remember that whatever you write may later be used against you in a lawsuit.
9. Be willing to admit if you/church were wrong. If confronted with facts showing that you erred, change them and write an apology stating the wrongful accusations or actions.
10. Be professional and act with grace. Many lawsuits are filed for reasons of revenge.
* This article was adapted from our five part series on how to protect church plants from legal "weeds".
- “Protecting the Church as Non-Profit Corporation: Counsel, Strategies and Tactics,” Erik Stanley, Alliance Defense Fund Regional Litigation Academy, November 17 & 18, 2009.
- "Employment Issues, Not-for-Profit Corporations," Kathryn M. Vanden Berk, IICLE 2007
- “Hiring and Firing Decisions for Churches in Illinois,” Andy Norman, Mauck & Baker Church and the Law Seminar 2005
- “Pastor Evaluation Process/Contract,” Whitman H. Brisky, Mauck & Baker Church and the Law Seminar 2006
- "Church Planting Landmines: Mistakes to Avoid in Years 2 Through 10," Tom Nebel & Gary Rohrmayer
Also see: This Legal Weed Could Choke Out Your Church Plant
Protect Your Church: Corporate Form and Bylaws
Three Church Practices Every Church's HR Should Implement
Posted on Fri, April 12, 2013
by Mauck & Baker filed under