Employment Law for Ministries

  
 

Five Key HR Policies

We start with this question: Why have employment policies at all? Employment relationships in most places are “at will” by default, so employers may discipline and discharge employees as they see fit. As long as obvious laws aren’t broken (e.g., race discrimination), employers have latitude in shaping their workforces, so why be hamstrung by policies that might be honored more in the breach than by compliance?

Those are rhetorical questions, of course. Employment and Human Resources policies are useful for many reasons, not least in that they publicize the employer's expectations, and thereby advance the employer’s objectives.

While HR policies are important, rightsizing is equally so. A 100-page “handbook” might establish more rules and set more expectations than anyone would pay close attention to. It is a mistake, usually, to simply copy en masse from another organization’s policies.  Better to choose what’s meaningful for your workplace and stop there.

With that in mind, here are five HR policies that a church or other religious organization should have and should update as needed. We consider them key for ministries because they are useful for any size workforce and because they are particularly important should employment litigation arise.

Anti-Harassment

The parameters defining unlawful workplace harassment have always been fuzzy. Unwelcome attention is prohibited, but only if it rises to the level of being severe or pervasive. Hugging can get you in trouble. Today the lines are even more blurry.  Because the media is reluctant in reporting on harassment stories to opine whether the alleged behavior crossed a legal line, they casually use the buzz phrase “sexual misconduct” without defining what that means.

Although the line separating acceptable attention and impermissible harassment is thin, having a written policy is a key defense to harassment claims. In many instances, evidence that the employer has an anti-harassment policy and the alleged victim failed to use it can provide a complete defense to liability. An effective anti-harassment policy should include guidance on what type of conduct is prohibited and spell out the procedure employees who experience or observe harassment should follow. A written anti-harassment policy is one that no employer should be without.

Conduct and discipline

As noted above, establishing workplace expectations advances an employer’s aims. Workers know what is expected of them and they (hopefully) oblige. Policies (or codes of conduct) should spell out the important expectations, such as honesty, attendance, punctuality, collaboration, and the like. For religious groups, expectations may and should include lifestyle standards congruent with church orthodoxy and scriptural or canonical beliefs. Correspondingly, the policies should be clear about the consequences of failure to satisfy expectations and standards, including discipline. Progressive discipline policies help ensure that the employer will impose discipline methodically and uniformly, although these policies should provide latitude for imposing discipline that fits individual circumstances.

Whistleblowing

No religious organization wants illegal conduct taking place under its figurative nose that nonetheless escapes detection. If and when the wrongdoing eventually comes to light, the consequences can cripple a ministry. Yet, workers are naturally uncertain what to do if they suspect wrongdoing, especially wrongdoing by a superior. Many will hesitate even if conscience tells them to speak out if high level personnel are implicated in fraudulent activity, unethical behavior, or unlawful conduct. Policies encouraging workers to report concerns and spelling out safe ways to do so are the way to combat uncertainty and hesitation. In addition, policies condemning inappropriate conduct such as fraud help foster a workplace culture that values and embraces transparency and compliance.

Leave policy

Being clear about when employees are expected to be around is critical. Most employees are keen to whether an employer is being “fair” (i.e., consistent) in allowing workers time off, whether paid or unpaid. Vacation and paid time off policies let employees know the benefits they’re entitled to and how they can use them. Many religious organizations have both full-time and part-time positions, and a well written leave policy will clarify what workers are entitled to paid time off.

Classification

In our April newsletter we discussed wage and hour law and noted that most employers must comply with minimum wage and overtime pay requirements. Underpaying presents sizable risks if it is systemic, including the risk of class action lawsuits. Mitigating those risks requires properly classifying workers. Fundamentally, employers need to distinguish between employees, on the one hand, and volunteers or independent contractors on the other. Employees need to further be categorized as exempt or not exempt. Special rules apply to clergy. Finally, expectations whether a worker is a part-time employee or a full-time one should be clear.

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We do not suggest in highlighting the above policies that other policies are dispensable. State laws, staff size, and other factors will determine the scope of any employer's employment policies. In addition, certain practices and procedures will be of significant importance to religious organizations. For example, although the costs may constrain the smallest organizations, it is prudent for churches, schools, and other institutions to conduct background checks on staff members who regularly interact with the elderly, teens, or young children.

Please let us know if you have any questions about this information.

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.