Employment Essentials

A generation ago, most churches employed one pastor and possibly part-time help for custodial or clerical work. But times have changed. Now churches have several ministers on staff, paid custodians, facility engineers, sound and lighting engineers, day care staff, kitchen staff, music staff, and more.

As the size of a church’s staff grows so does its responsibility as an employer. Therefore, church leaders must be aware of the laws that govern hiring and firing to avoid litigation. A good dose of planning and common sense remains the best protection.

Rex Frieze, a church consultant and certified public accountant in Orlando, Florida, says that employment litigation involving churches is on the rise, both because churches are hiring more people and because churches are not immune to society’s litigation craze. “If people aren’t treated fairly, they know they can turn to the courts,” Frieze says.

Under the Law

So what laws apply to churches as employers? In most cases, the same ones that apply to any business. And Stephen Chawaga, an attorney at Monteverde McAlee & Hurd in Philadelphia, Pennsylvania, (see “The Ten Deadly Lawsuits,”) points out that as churches employ more people their responsibilities change.

“Churches may find themselves subject to different laws

as they grow in size,” he says. “For example, some occupational health and safety statutes generally apply to businesses with more than 15 or 20 employees and that will include churches, even if they haven’t noticed that they have slipped over that line.”

Nonetheless, there are a couple of major exemptions for churches when it comes to hiring and firing. Churches, unlike businesses, are allowed to hire and fire based on religious matters. For example, a decade ago in Benton Harbor, Michigan, the Fairplain Assembly of God fired an employee of its Wee Care Day Care because her supervisors discovered she was living with her fiance.

The Michigan attorney general’s office filed suit against the church, claiming that the worker had been unlawfully discriminated against based on marital status. However, the church’s attorney, David Kallman, said that the day care center was a ministry of the church, and, as such, the church’s prohibition of unmarried cohabitation by employees was an enforceable rule. The state eventually dropped the suit.

The other major exception granted to churches in employment matters involves ordained personnel. Laws about the separation of church and state prohibit the state from getting entangled in matters of religion. Michael Snapper, an attorney with Miller, Johnson, Snell & Commiskey in Grand Rapids, Michigan, says that

the courts often have declined to get involved in the relationship between a church and its minister because that relationship is wrapped up in matters of theology and religion.

Common-sense Guidelines

In many cases, legal problems can be prevented by simply planning ahead and using common sense.

Provide written job descriptions. A formal job description for every position prevents confusion down the road. Without a job description, frustrated employees and managers have nowhere to turn for objective guidelines on what type of performance is expected.

“The employee gets disgruntled, morale suffers, and even if there isn’t a legal problem, it tarnishes the church’s reputation,” Frieze says.

Have more than one person involved in hiring decisions. Some churches have a personnel committee to deal with hiring issues while other churches leave it up to the minister. Chawaga suggests having at least a couple of people involved in the hiring process.

“It’s all too easy to delegate that to the pastor,” he says. “[But] then the person hired winds up working with other people who may or may not have the same view of the job. Even if the minister has the final hiring-and-firing power, it behooves him or her to involve other people.”

Don’t discriminate. When interviewing prospective employees, churches may not discriminate on the basis of race, color, sex, marital status, disabilities, or age. The only exception to these general standards, as mentioned above, is religion.

Despite this exemption, some churches don’t like to hire employees from within their congregation. Jay Sage, church administrator for the past five years at Community Church of Vero Beach, Florida, explains why his church doesn’t hire from within.

“One of the reasons is that if an employee doesn’t perform adequately, it creates an unpleasant situation and families may become involved,” he says. “I myself am not a member at this church. If people see me at a church function, it’s human nature to pull me aside to ask about this or that. So by worshiping elsewhere my worship time is free and apart from my work.”

Check references. While it may seem obvious, Frieze says churches still need to be reminded to contact prior employers and references before hiring someone.

“Someone will come in based on an ad in the paper,” he says, “and because the pastor is too busy he or she will hire that person on the spot.”

Frieze points out that even church members should be screened. Especially if children are cared for on the church premises, he says, every employee must be screened. “If these people are working with or near children, you have a responsibility. If you don’t screen an employee, you’ve exposed yourself to liability,” he says.

Chawaga agrees. It isn’t that a church is responsible every time an employee does something wrong, he says, but the church can be held liable if someone should have foreseen the problem. Two cases show the distinction. The Second New St. Paul Baptist Church in the District of Columbia was sued because some children were sexually assaulted by the church janitor. The Court of Appeals said that the janitor was not acting within the scope of his employment, and there was no proof of negligent hiring. So the church was not held responsible.

However, in Virginia, the Victory Tabernacle Baptist Church was found in part to be negligent after a church employee sexually assaulted a child. The mother of the child alleged that the church should have foreseen the problem when it hired the employee because he had recently been convicted of aggravated sexual assault on a young girl.

Orientation and Reviews

Once an employee is screened and hired, proper orientation to the job is essential. “I’ve found that some people have the misconception that working in the church is going to be a breeze,” church administrator Sage says. “A proper orientation will relieve them of that notion. We have 2,000 members, deadlines, lots of programs. It gets hectic, and we have pressures just like in any business.”

Both Sage and Frieze recommend a 90-day period of probation. “After 90 days there has to be a meeting of mutual sharing to see how all the parties feel it’s going,” Frieze says. “That way, everyone is forced to be on the same page.”

Frieze recommends an additional meeting six months later. And every employee should be evaluated once a year, from the senior pastor right on down. Sage adds that there should be a written record of all evaluations.

A Civil Termination

When termination is necessary, a church should handle the employee with care. “You’d think a church would be sensitive to this,” says Chawaga. “Civility and consideration at the time of termination can go a long way in preventing lawsuits. Avoid giving an employee who is already embarrassed something to seize on and commence litigation.”

Chawaga says that, as when hiring and reviewing, more than one person should

be involved in a termination situation. “That provides witnesses and a second voice,” he says.

Outside Help

Sage says that one of the best things his church has done is make use of employment agencies. The staff has grown to 60 at Community Church, including preschool staff, teaching staff at the academy of performing arts, clerical and custodial staff, and ministry staff. “An agency prescreens the applicants and the employee is on the agency payroll for 90 days before they go on our payroll. It gives us time to see how someone works out,” he says.

For ministry and supervisory staff, Sage says they use the services of the Omnia Group in Tampa, Florida (813-254-9449; www.omniagroup.com). “[Omnia] provides a personality-type evaluation that we ask people to take before we hire them. We give [Omnia] a job description and a profile of the supervisor so we can see how the [prospective employee’s] profile matches up to the needs of the job and the supervisor. Applicants fill in the form, we send it to Omnia, and within 24 hours they fax back to us whether or not they recommend hiring.”

Frieze Consulting (800-992-5013; www.friezeconsulting.com) offers a resource library (print or CD-ROM) featuring 700 pages of examples of church policies. Frieze says his company will also go to churches to review their policies and procedures and can provide telephone consultations.

Whether a church gets outside help or not, Frieze urges church leaders to be aware of their responsibilities as employers. “In a church we have to be even more cautious because of the testimony we’re trying to fulfill,” he says. “The church ought to treat employees with the highest standards of integrity.”

Gayla Postma (gpostma@attcanada.ca) is a freelance writer living in Morrisburg, Ontario.

From Church Staffing Essentials: Available for download at BuildingChurchLeaders.com. Click here for more information.