External Communications: Who May Speak for the Ministry?
Assume that a sensitive issue develops within a ministry organization. Assume further that a staff member decides to publicize the issue. Can the ministry prevent this and/or discipline the employee for doing so? More broadly, does the law limit the ability of ministry employers to designate who is allowed to communicate about internal matters with third parties, such as with members, supporters, or the press? Proclaiming the Good News is one thing; sharing bad news is something altogether different.
Most sensitive internal matters, of course, ought not to be repeated outside the confines of the ministry’s leadership. (Note that certain laws may mandate the reporting of abuse and similar matters to appropriate authorities.) Public commentary on indiscretions or misbehavior always presents the risk of invasion of privacy, libel or slander, and other claims, not to mention harm to an organization’s reputation (see our May 2019 Newsletter on Defamation). On occasion, negative or even scandalous information will surface publicly, and the ministry will understandably want to control its message on the topic by designating who may talk about it and what should be said.
On occasion, a staff member might not agree with leadership's approach and might decide to take matters into his or her own hands. They may claim that they have a "right" to "blow the whistle"—say by alerting the local press. Is that the case?
Legal Rights to Speak Out
While we’re all
familiar with the right of "free speech,” that right is not an issue here. Only the government is prohibited from infringing that right. Non-governmental workers do not have a constitutional right to discuss anything they want, whenever they want, with whomever they want.
So-called whistleblower laws nonetheless authorize some employees to speak out on certain matters. Many of these laws protect workers not only when they report wrongdoing internally—say to a manager or finance committee—but also when they publicly disclose alleged wrongdoing, such as by offering a titillating quote to the local newspaper. Whether those laws apply in a given circumstance
depends on many factors such as the business of the employer, the nature of the employee’s concern, the employee’s truthfulness in making a statement, and the manner and means chosen by the employee in speaking out. An employee disciplined or discharged for protected whistleblowing may seek appropriate remedies, including reinstatement to his or her job.
Fortunately, these laws as a general rule do not expose ministries to significant liability risks. Many whistleblower laws apply only in discrete contexts that are unlikely to involve ministries (e.g., laws protecting employees who report environmental law violations). The Occupational Safety and Health Act does broadly protect employees
who speak out about industrial safety issues and, according to OSHA regulations, “[c]hurches or religious organizations … are considered employers under the Act where they employ one or more persons in secular activities.” Yet personnel safety issues in ministry settings are rare, and OSHA retaliation claims against ministries are rarer still. The Sarbanes-Oxley Act protects employees who report financial improprieties, but only when an employee reports a federal offense to law enforcement. All in all, when it comes to disciplining a staff member for making unwise or unauthorized external comments about a ministry’s internal affairs, the likelihood that the employee will have a viable whistleblower claim is remote.
Moreover, if an employee were to file a whistleblower lawsuit, the ministerial exception might provide a defense against the claim. For example, a Michigan appellate decision in 2010 applied the ministerial exception to a Catholic school teacher’s whistleblower retaliation claim, stating: “Termination of a ministerial employee by a religious institution is an absolutely protected action under the First Amendment, regardless of the reason for doing so.”
For any ministry, a prudent step is to develop a policy designating who may speak publicly about internal affairs. The policy may be
integrated with confidentiality and/or social media policies. They may also take the form of stand-alone "spokesperson" or external communications policies. As to the content of the policy, ministries have latitude because, as just discussed, whistleblower laws have limited application in the ministry context. For example, a ministry may adopt a policy that a) affirmatively designates authorized spokespersons to speak on its behalf, and b) prohibits everyone else from making any public comments unless they are given permission to do so.
You may have heard stories in recent years that workplace confidentiality policies might be unlawful. It is true that the National Labor Relations Board (NLRB)
and the courts have scrutinized these policies to ensure that they are not so broad that they restrict employees from engaging in protected rights to discuss wages, to protest working conditions, to organize a union, and so on. Some policies that prohibited social media or other public postings about internal affairs have, indeed, been struck down on the ground that the mere existence of a company policy could chill workers from exercising their rights.
More recently, the NLRB has relaxed its viewpoint that these policies are unlawful and focus on whether the policy is "reasonable." In any event, the NLRB does not assert jurisdiction over employees of a religious organization who are involved
in carrying out the religious purpose of the organization, such as teachers in church-operated schools. (However, the agency has asserted jurisdiction over religious organizations that do not have a religious character, such as health care institutions.) For that reason, ministries need not be overly concerned about challenges to their confidentiality and media-reporting policies. It is nonetheless always wise to seek counsel before disciplining an employee for violating such a policy.
The flip side to prohibiting staff members from publicly commenting about internal matters is to provide them with a path that encourages them to resolve concerns within the organization. Reporting policies of
this type help to channel concerns to personnel who can effectively and discreetly address the concerns. For more information, see our June 2019 Newsletter, Five Key HR Policies.
Please let us know if you have any questions about this topic.
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.