Whistleblowing and Ministries
We previously summarized key personnel policies that we recommend for all ministries (Five Key HR Policies, June 2019), one of which involved workplace "whistleblowing." How, to whom, and when employees should report workplace conduct that makes them uncomfortable are important questions. It is likewise worthwhile to understand the potential employment law risks and consequences of employee whistleblowing. Here, we address the topic of whistleblowing in the ministry context in more detail.
Internal and External Whistleblowing
"Whistleblowing" is a familiar term, useful as shorthand. But the term is somewhat ill-suited to the employment context. Employers (generally speaking)
want employees to report perceived wrongdoing so it can be rectified. Yet they don't typically want employees to think of themselves as whistleblowers. That label suggests that, because he or she has concerns, the employee is an outsider—adverse to and even perhaps disloyal to the organization. In reality, if an employer wants to be alerted to potential misconduct, and employees are willing to report it, their interests are aligned, not competitive. No shrill whistles required.
Sometimes employees don't keep concerns within the organization, however, and report them to outside authorities or governing bodies—i.e., external reporting. They
may do so because concerns previously raised internally haven't been addressed to their satisfaction or because they are fearful of repercussions. That does seem like "whistleblowing" in the familiar sense of the word. Nonetheless, ministries that value transparency should accept that either internal or external concern reporting is acceptable. In other words, whatever avenue an employee chooses to speak up, the end result is an opportunity to address a potential problem. While internal reporting is encouraged, at least as a first step, external reporting is also commendable.
Policies and Training
Surveys suggest that
concern-reporting policies are not prevalent in ministries, and it could be that the small size of so many ministries accounts for that finding. Organizations with just a handful of employees often prefer to rely on each other's trustworthiness, and most workers know what everyone else is up to. Moreover, it is often clear to employees in small workplaces to whom they should report concerns.
Any sizeable ministry should consider having a concern-reporting policy. As an initial matter, we do not recommend that the policy be named a "whistleblower" policy. (For more on that topic, see Why your whistleblower policy should not be called that.) While no policy fits all workplaces, each should check these boxes:
- summary of the purpose of the policy; ministries can emphasize their high standards of conduct and the doctrinal bases for those standards;
- statement that all employees have a duty to report perceived misconduct;
- types of misconduct/concerns within the scope of the policy;
- how the policy coordinates with similar workplace policies (particularly, reporting harassment, conflicts of interest);
- clear direction on how employees should report concerns and the options they have for doing so; and
- assurance of confidential treatment
of the employee's identity and non-retaliation.
In addition, leadership needs to know how to respond to and resolve employee concerns. The employer's response plan need not be part of the HR policy but should be proceduralized. The procedures should address the need to address concerns confidentially, establish aspirational timelines for resolving concerns, assign responsibility for investigating and closing out concerns, and ensure that the employee who reported the issue receives feedback on its resolution.
Drop boxes, toll-free hotlines, and other avenues that permit anonymous
reporting are sometimes appropriate. Hotlines are likely more useful to organizations with relatively large workforces. On the other hand, and practically speaking, anonymity is often impossible in a small workforce. In any event, ministries are not required to offer anonymous reporting avenues or even to encourage anonymous reporting. It can be difficult to fully understand (much less resolve) anonymous concerns because undisclosed sources are simply not available to provide additional or continuing input.
Finally, training on employee concern-reporting policies is a must for organizations that have them. Training will help ensure that workers at all
levels on the organization chart know to whom and what to report, understand that retaliation against employees who report concerns (aka shooting the messenger) will not be tolerated, and appreciate the organization's commitment to upstanding conduct and transparency.
It is a relatively common question: What can be done if an employee reports a concern that is meritless, or worse, intentionally false?
Concern-reporting policies encourage just that: employees will speak up
about concerns they have. Employers should not expect employees suspicious of a workplace practice or occurrence to investigate the matter on their own and "prove it" before they report it. A meritless concern is still a concern, even though an investigation will conclude that it is not substantiated.
The best tool an employer has in responding to a worker who repeatedly "cries wolf" about non-issues is patience. What will best serve the employer in this situation is documentation that each concern was treated as genuine and resolved. If it continues, employee misbehavior of this kind at some point merits corrective action, but any action
should be devised with regard for the action's potential impact on workplace morale. If workers know that a colleague has raised concerns, and they then see that the colleague has been disciplined, they might think the worst: that workers who speak up are likely to be punished.
Employers may discipline employees who intentionally report false information—that is, information that is objectively untenable and that the employee subjectively understood was false. This situation is uncommon, and hopefully rarer still in ministries. As a general rule, employers should avoid focusing on the motive underlying a worker's decision to report a concern:
it's the concern, not the motive, that matters, and in some instances an employee may have both legitimate and questionable motives. If, however, the employer can objectively establish that the employee reported a concern in bad faith, disciplinary action can be taken. Of course, each such situation needs to be considered on a case by case basis.
Viability of Whistleblower Claims against Ministries
Federal and state statutes offer a multitude of protections for employees who report workplace wrongdoing. Many laws only apply to government employers or to corporations, far fewer to private
organizations, and fewer still to small entities such as churches. Some state laws are broad enough to cover ministries. In particular, state courts by and large recognize a right by an employee to bring a "retaliatory discharge" action based on the claim that he or she was discharged in retaliation for reporting wrongdoing.
On the other hand, the ministerial exception blocks discrimination claims by a "minister" against a religious employer (see Mitigating Risk with the Ministerial Exception (March 2019)). In theory, at least, a minister can no more successfully prosecute a whistleblower retaliatory discharge claim than he or she could challenge a discharge premised on age, race, or similar discrimination allegations. However, very few courts have addressed the precise legal issue whether the ministerial exception or similar First Amendment doctrines block a claim by a minister that he was discharged in retaliation for reporting wrongdoing. (See the sidebar for further discussion.)
A case currently before the Illinois
Supreme Court may provide clarity on that issue in light of the U.S. Supreme Court's very recent affirmation of the ministerial exception (see Supreme Court Delivers Clear Victory to Religious Schools (July 2020)). The Illinois case arose from the Catholic Diocese of Joliet's discharge of the principal of a Catholic school within the diocese. The principal, Rehfield, alleged that her termination constituted a retaliatory discharge and violated the Illinois Whistleblower Act.
Specifically, she claimed that she was fired because she called the police to report what she considered to be threats against the school by a student's father. The trial and appellate courts dismissed Rehfield's claims, reasoning that the ecclesiastical abstention doctrine prohibited
judicial second-guessing of the diocese's decision. Rehfield has appealed. She argues, among other things, that the U.S. Supreme Court's recent ministerial exception decisions did not involve and do not extend to whistleblower retaliation claims. Our assessment is that the state Supreme Court is likely to agree with the diocese and uphold the dismissal of the complaint.
If you have any questions about this topic, please contact us.
This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.