Increasingly, disgruntled employees and former employees of religious organizations — as well as disgruntled clergy — are filing lawsuits in an effort to have the courts address their often bitter feelings toward their employer, church or denomination. As a general rule, the courts do not like to deal with lawsuits of this nature. The courts especially try to avoid dealing with disputes between clergy and churches because it is impossible to address these lawsuits without becoming entangled in the church's polity and ecclesiastical jurisdiction. Part of the protection of the First Amendment of the Constitution of the United States and many state constitutions is to prevent the courts from meddling in a church's internal polity. The courts are generally very respectful of that important protection.

Nonetheless, many churches, middle governing bodies, and other church e ntities have become increasingly interested in developing personnel policies that give guidance about how to handle particular types of common personnel problems. The Presbyterian Church (U.S.A.) Book of Order and the Personnel Policies for the General Assembly Council and Guidelines for Governing Bodies and Other General Assembly Entities provide an overall basis for fair and just treatment of employees. The Book of Order provisions are, of course, mandatory. The Personnel Policies document, a guideline, is available by calling Human Resources at 1-888-728-7228 ext. 5594. In addition, many churches and middle governing bodies have developed and continue to refine their own policies for addressing sexual abuse and sexual harassment. To address sexual abuse and sexual harassment, the 207th General Assembly (1993) adopted the Presbyterian Church (U.S.A.) Sexual Misconduct Policy and Its Procedures. This document sets out useful guidelines and samples. It is not mandatory upon middle governing bodies and the particular churches. It is available through the Office of the General Assembly. The Sexual Misconduct Policy is available for order through the Presbyterian Church (U.S.A.) Marketplace or by calling 1-800-524-2612. The cost is $1 per copy plus shipping and handling.

Employment law, especially regarding clergy and other church staff, is a rapidly evolving area. We welcome your suggestions and especially the policies and procedures used in your church, presbytery, or synod.

• Federal Laws Coverage
  • Posting Requirements
  • Military Service and the Call of Presbyterian Ministers
• HIPAA: Health Insurance Portability and Accountability Act Privacy Rules
• Potential Problems in Hiring and Firing Employees
  • Interviewing
  • Lay Persons
  • Examples of prohibited questions
  • Examples of permitted inquiries (job related)
  • Ministers
  • Background Checks in General
  • Background Checks for Ministers
  • Job Descriptions and Performance Management
  • Compensation
  • Terminations
• Funds and Assistance for Litigation Challenging the Presbyterian Church (U.S.A.) Constitution
• Advantages and Disadvantages of Personnel Policies
• Common Personnel Policies
• Anti-Harassment Policy
• Personnel Records
  • Access to Personnel Records and Confidentiality
  • Record Retention
  • Subpoena of Personnel Records
  • Employee Privacy
  • Privacy Issues Concerning HIV/AIDS
• Benefits Plan of the Presbyterian Church ( U.S.A.)
• Board of Pensions Publications
• Flexible Spending Accounts and Other Benefits
  • Parking Benefit

• Civil Rights Act of 1964 (Title VII) as amended: banned discrimination based on race, color, religion, sex, or national origin in employment; applies to companies of 15 or more employees. Sexual harassment is a form of sex discrimination. This law is enforced by the Equal Employment Opportunity Commission (EEOC) and the Department of Labor. There is a limited exception for religious organizations to enable them to restrict job positions to those of their own religious faith. In the leading case on the matter, the Supreme Court has given religious organizations very broad powers to require religious qualifications for their employees. Most states and cities have similar civil rights laws covering fewer employees. In addition some states and cities have included other protected categories such as sexual orientation and veteran status.
• Age Discrimination in Employment Act of 1967 (ADEA): generally prohibits discrimination against employees age 40 or older. The First Amendment to the Constitution of the United States protects a church's right to set a certain age for its ministers to retire. The ADEA applies to companies of 20 or more employees; prohibits employers from rejecting applications or firing employees on the basis of age. This law is enforced by the EEOC. Again, most states and cities have parallel laws prohibiting age discrimination and covering fewer employees.
• Older Workers Benefit Protection Act of 1990: amended the Age Discrimination in Employment Act to prohibit age discrimination with regard to employee benefits. This law is also enforced by the EEOC.
• Occupational Safety and Health Act of 1970 (OSHA): a regulatory system designed to aid worker safety; current threshold for required reporting is one employee or more engaged in secular activities. Employees performing or participating in religious services are not covered by OSHA. This law is enforced by Occupational Safety and Health. The Act covers organizations to the extent engaged in commerce (see discussion of Fair Labor Standards Act).
• Immigration Reform and Control Act of 1986: bans hiring non-U.S. citizens who do not possess the authorization to work in this country and provides fines up to $10,000 for each illegal immigrant hired and in some cases imprisonment; all employers (even of one person) must fulfill the document verification provisions of the Act. Failure to do so can result in penalties. The discrimination provisions apply to four or more employees. This Act makes it an offense to refuse employment to anyone whom the employer believes may be an illegal immigrant but turns out not to be; applies to companies with four employees or more. Employers are required to verify employment eligibility within three days of hire of a new employee by completing the I-9 form. It is important to keep copies of the evidence of employability: green card, passport, driver's license, Social Security card, birth certificate, or citizenship papers as set forth on the I-9 form. The I-9 form must be kept by the employer for the longer of the following: three (3) years after the date of hire or one (1) year after termination of employment. In the 1980s this law was unsuccessfully challenged on religious grounds. Churches must comply with the law. This law is enforced by the U.S. Citizenship and Immigration Service (USCIS). See additional immigration information in the Immigration chapter.
• Worker Adjustment and Retraining Notification Act of 1988 (WARN): this plant-closing legislation requires 60 days' written notice of large-scale layoffs and plant closings; applies to companies with 50 or more employees.
• Americans with Disabilities Act of 1990 (ADA): broad piece of legislation, covering both treatment of employees as well as architectural requirements for buildings; applies to companies of 15 or more employees. This Act requires employers to make reasonable accommodation for employees with disabilities that substantially limit one or more major life activities (caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working) absent a showing of "undue hardship" and expense on the employer. If significant risks to health and safety of others that cannot be eliminated by reasonable accommodation would arise from the employment of a person with a disability, the ADA does not require hiring of that individual. The protection afforded by the ADA applies to qualified individuals with a disability, meaning they can perform the essential job functions with or without accommodations. This law is enforced by the EEOC. The ADA contains provisions permitting churches to discriminate in hiring based on religion. There is also an exemption for churches relieving them of the requirement to comply with provisions related to building accessibility to public accommodations by the disabled, but this does not relieve a church of the responsibility to make a reasonable accommodation for a disabled employee. Recent U.S. Supreme Court decisions significantly limited the applicability of this law. Consult with your attorney to ensure compliance. Many states and cities have parallel laws that may cover fewer employees.
• Fair Labor Standards Act: overtime pay of time and one-half to non-exempt (non-managerial) employees working over 40 hours a week; also regulates child labor providing that anyone age 18 or older may work, but employees who are younger are subject to restrictions related to hazardous work and work hours, and provides for a minimum wage. There is a limited exception for religious camps operating no more than seven months a year. While churches that are not engaged in "interstate commerce" are not subject to the act, many activities fall into this gray area. Consult with your local employment attorney. The Department of Labor may view any entity with employees as covered by the Act, including churches. The operation of a day care facility, preschool, or school will subject a church to coverage by the Act. Further, the requirements of the Act cannot be avoided by classifying a worker as an independent contractor to avoid paying him overtime. Ministers are professional employees and are exempt from the overtime pay requirement. This law is enforced by the Department of Labor's Wage and Hour Division. New overtime rules took effect in August of 2004. Consult the U.S. Department of Labor Web site for further information and training. Many states also have wage and hour laws.
• Equal Pay Act: The Fair Labor Standards Act was amended by the Equal Pay Act to require equal pay for equal work, regardless of the employee's sex.
• Family Medical Leave Act of 1993: Eligible employees may take up to twelve weeks of unpaid, job-protected leave with continued benefits during a twelve-month period for the birth of a child, care of a newborn, placement for adoption, or foster care, to care for a spouse, son, daughter, or parent with a serious health condition, or the employee's own serious health condition. To be eligible the employee must have worked for the employer at least twelve months and at least 1,250 hours during the immediately preceding twelve months, at a work site where fifty or more employees are employed within seventy-five miles of the work site. There is no specific exception for churches, but if a church employs fewer than fifty employees it is not covered by the law. The employer's obligation is triggered by the employee's prior notice to employer of need to take leave under the Act or upon employer's learning that the leave is for purposes covered by the Act. The employer should require medical certification from the affected person's physician. "Serious health condition" covers inpatient care and continuing treatment by a health care provider. This law is enforced by the U.S. Department of Labor's Employment Standards Administration, Wage and Hour Division. Many states have family medical leave statutes. Due to the complexity of this law, it is a good idea to work with an attorney who specializes in employment law to ensure compliance.
• Personal Responsibility and Work Opportunity Reconciliation Act of 1996: generally referred to as federal welfare reform, contains a requirement that all employers report new hires to the employer's respective state agency. The appropriate state agency varies from state to state. One purpose of this law is to locate parents who avoid child support payment obligations by moving and changing jobs. There is no exclusion for small employers or religious organizations. The designated state agency may be a child support enforcement agency or state labor department.
• Unemployment: by virtue of inclusion in the Presbyterian Church (U.S.A.)'s Federal Group Tax Exemption Ruling, churches and middle governing bodies are exempt from federal unemployment tax. However, individual states may impose an unemployment tax on certain nonprofit organizations even though they are exempt from the federal tax. Organizations should consult their tax advisers concerning liability for the state unemployment tax.
• Worker's Compensation: This is a matter of state, not federal, law. There is no per se exemption for churches, and coverage depends upon the specific state law. It is important to determine who is considered a covered employee for state law purposes. This is also a very important area for insurance coverage. Consult your insurance agent about worker's compensation coverage for your church's employees.
• National Child Care Protection Act of 1993: This Act allows (does not require) states to require that certain child care providers make mandatory background checks on child-care workers (both employees and volunteers). States will have the right to designate certain organizations, such as day care centers, nurseries, schools, and possibly Sunday schools, as child-care providers. Churches and presbyteries should become aware of their state's requirements regarding the designation of child-care providers. The National Child Care Protection Act was amended in 1999 by the Volunteers for Children Act to enable (not require) child care providers designated by state law as qualified entities to contact an authorized agency of the state to request nationwide criminal fingerprint background checks. To find out if churches are designated as qualified entities in your state, contact a local attorney. There are advantages and disadvantages to any screening process; select a screening process that best suits the needs of your church.
• Pregnancy Discrimination Act: This Act prohibits discrimination against a female employee because she is pregnant. If she is able to work, she must be permitted to work under the same conditions as other employees. If she becomes unable to work for medical reasons, she must receive the same rights to benefits and leave as other workers who become unable to work.
• Employee Polygraph Protection Act: This Act applies to churches engaged in interstate  commerce and prohibits requiring or suggesting employees or job applicants submit to polygraph tests. Consult with your attorney to determine whether your church is engaged in interstate commerce and covered by the Act.
• Uniformed Services Employment and Re-employment Rights Act of 1994: Generally, this law provides that an employee who leaves to train or serve in the uniformed services must be re-employed upon return and has a right to certain benefits during absence and upon return, provided the employee's service does not exceed five years and the employee did not receive a dishonorable discharge. There is no exemption for churches or small employers. The employer is not required to re-employ under specified limited circumstances set forth in the Act. This law is enforced by the U.S. Secretary of Labor and may be referred to the U.S. Attorney General for further action. See also the section below titled Military Service and the Call of Presbyterian Ministers.

• The Fair Labor Standards Act (minimum wage and overtime)
Equal Employment Opportunity
• Occupational Safety and Health Act (OSHA)
• Employee Polygraph Protection Act
• Family Medical Leave Act (FMLA)

Posters for all of the above, except Equal Employment Opportunity, can be obtained at no charge from your local office of the U.S. Department of Labor. For a free poster covering Equal Employment Opportunity, contact your local office of the Equal Employment Opportunity Commission. Many states have posting requirements in addition to those required by federal laws. Consult with your attorney on posting requirements.

Two very good resources on this topic are on the Web. The Constitutional Services Department of the Office of the General Assembly has posted an Advisory Opinion about Presbyterian Church polity and how it intersects with a minister's military obligation. See Advisory Opinions Note 5 Chaplains Recalled to Active Duty.

In 1994, the Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted. This federal law secures a variety of rights to employees called to military service. In cooperation with other General Assembly offices, the Board of Pensions wrote USERRA Questions and Answers, a document covering 18 central issues. You can obtain this document by calling the Board of Pensions at (800)773-7752.

There are two categories of disclosures where local churches, as non-covered entities, may be affected by the HIPAA privacy rules. One instance is disclosure of protected health information of a church member and the second is disclosure of protected health information of an employee.

• Church Member's Protected Health Information. Again, a church with respect to its member is not a covered entity. The HIPAA privacy rules permit a hospital to provide the name, general condition, room number and religious affiliation in a directory accessible by clergy and permits this information to be given to those who ask for the patient by name, unless the patient has objected. It is not a violation of the HIPAA privacy rules for a minister to access the information in the hospital directory and then subsequently disclose the information to the congregation. If a member has notified the church that the member does not consent to such disclosure, any subsequent disclosure may amount to an invasion of the member's privacy. The best approach is to obtain a written consent from the member to make disclosures. However, if this is not practicable, then notice of the church's practice should be posted or placed in the church bulletin from time to time with an opportunity for members to notify the church if they object to disclosure of their information. A notice in the church bulletin might include the following:

When a congregation member is ill or injured, we inform fellow members and pray for you by name—seeking the comfort and healing of the Risen Christ. If you do not want members informed or your name and illness stated in these congregation prayers, please notify the pastor in a brief written note.

• Church Employee's Protected Health Information. The church, as an employer, may need to request disclosure of an employee's protected health information from a health care provider, for example, in connection with an employee's return to work after a medical leave. The church employer requesting the protected health information will be required to submit to the health care provider an authorization signed by the employee that in the provider's opinion complies with HIPAA. If the church employer does receive an employee's health information, this information should be used solely for the narrow purposes it was gathered. Otherwise, it should be held in a secured confidential file separate from the employee's personnel file.

For further information see the Department of Health and Human Services' Office for Civil Rights - HIPAA web site and "Are Prayer Lists Illegal?" Church Law & Tax Report, Vol. XVIII, No. 2, March/April, 2003. Church Law & Tax Report is a publication of Christian Ministries Resources. You can subscribe by calling (800)222-1840.

• Examples of Prohibited Questions
  1. What year did you graduate from high school? (Can learn of age)
  2. Could you enclose a photograph with your resume? (Can learn of race, national origin, sex, or age)
  3. Are you married? (Illegal inquiry about marital status)
  4. Have you ever been arrested? (Some groups are arrested at a higher rate than others and this question could lead to race discrimination.)
  5. What is your native language? (National origin discrimination)
  6. Are you handicapped? (Disability discrimination)
  7. How old are you? (Age discrimination)
  8. Do you plan to have children? (Sex discrimination)
  9. Are you pregnant? (Pregnancy discrimination)
  10. Do you have a drug or alcohol problem? (Disability discrimination)


• Examples of Permitted Inquiries (Job Related)
1. Have you ever been fired or otherwise had your employment involuntarily terminated?
2. There is a gap in the time frames shown on your resume. Tell me about that.
3. If hired, can you prove you are at least 18 years of age?
4. Can you show proof of eligibility to work in the United States?
5. Are you able to perform essential functions of this job with or without accommodation?
6. Would you be willing to travel?

If you need to compile applicant tracking information for affirmative action purposes, for example, do not ask for this information on the employment application unless it is on a perforated portion at the bottom that will be separated from the application and not available to the decision maker.

Of course, the Book of Order sets out many provisions applying to the employment and call of a minister. The call form is set out at G-14.05066.

"I hereby authorize any investigator of [Name of Church Employer] bearing this release to verify and obtain any information from schools, residential management agents, former and current employers, religious bodies, criminal justice agencies and individuals relating to my activities. This information may include, but it is not limited to, academic, residential, achievement, performance, attendance, personal history, disciplinary, criminal conviction records, and any judicial or ecclesiastical proceedings involving me as a defendant. I hereby direct and authorize you to release such information upon request to the bearer. I hereby release [Name of Church Employer], and any individual or group, including record custodians, from any and all liability for damages of whatever kind or nature which may at any time result to me on account of compliance or any attempts to comply, with this authorization."

See the discussion of the National Child Care Protection Act of 1993 set out earlier in this Personnel chapter.

Under the Book of Order the congregation elects a nominating committee that works with the committee on ministry of the presbytery. The committee on ministry is required by the Book of Order at G-11.0502d to advise with the nominating committee regarding the merits, availability, and suitability of any candidate or minister whose name is contemplated for nomination to the congregation, and shall have the privilege of suggesting names to the nominating committee. Once the nominating committee makes a selection, that selection is presented to the presbytery for approval through the committee on ministry. The Book of Order further requires the nominating committee to take care to consider a candidate without regard to race, ethnic origin, sex, marital status, age, or disabilities.

The nominating committee of the church and/or the committee on ministry of the presbytery should exercise reasonable care in checking the minister's background. Reference checkers should consult with the committee on ministry and/or the presbytery executive. If the reference and background checks reveal previous incidents of sexual misconduct, Richard Hammar's Pastor, Church and Law recommends the following factors be considered before hiring the minister:

"(a) the nature and severity of the previous misconduct; (b) the frequency of the previous misconduct; (c) how long ago the misconduct occurred; (d) whether the minister received counseling; (e) the competency and effectiveness of any counseling received; (f) the likelihood that the minister will repeat the same type of misconduct now; (g) the possibility of legal liability if a jury concludes, on the basis of all evidence, that the church or denomination was negligent in hiring the minister."

The performance appraisal should be conducted at least annually. Supervisors should manage employee performance throughout the year, documenting conversations with the employee regarding good and unacceptable performance. Any documentation should contain only facts, not generalizations or assumptions. For example, if a church staff person is tardy in arriving to work 3 out of 5 days each week, week after week, month after month, and the church has warned the staff person several times that repeated tardiness will not be tolerated, the tardiness — and the warnings to the staff person — should be documented in the person's personnel file. If the situation becomes intolerable and the church decides to terminate the person's employment, then the documentation in the file will serve as an important record of what transpired, when it transpired, and how it was handled. If the discharged staff person tries to challenge the decision, the detailed records will provide an important defense for the church in support of its decision. When performance management is an ongoing process, the annual performance review will be unlikely to contain assessments that surprise the employee. Performance appraisals should be truthful appraisals. It is unhelpful to both the employee and the church employer to gloss over or fail to document performance problems. Truthful appraisals are important in the defense of adverse personnel actions and in improving performance.

Employees should be given an opportunity to review and comment on the performance appraisal. The performance appraisal should be signed by the reviewing manager and the employee to indicate that the review occurred, not that the employee necessarily agreed with the review. If the employee refuses to sign, indicating that the review has occurred, the manager may note that fact on the appraisal form.

See the section titles Intermediate Sanctions under the Taxation chapter of this manual. Detailed and helpful information is set out in Intermediate Sanctions, Taxation.

In addition, an employer that discharges an employee in retaliation for exercising the employee's rights or obligations under state or federal law may be found liable for wrongful discharge. For example, if an employee files an EEOC complaint for race discrimination, he cannot be terminated for filing the complaint.

Termination of a minister's employment must be consistent with the written call and any applicable provisions of the Book of Order. As noted above, because of constitutional protections, most civil courts will not hear a lawsuit filed by a minister against the church or presbytery. Such relationships are not ordinary civil employment. They are ecclesiastical relationships defined by Presbyterian Church (U.S.A.) polity and governing bodies.