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 Mission 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

The Office of the Stated Clerk has some funds available to assist presbyteries in civil litigation that impinges the church's free exercise of religion in administering its polity and the practice of its ministry. Call Laurie Griffith at (888)728-7228 x5432 or Mark Tammen at (888)728-7228 x5433 for further information about these funds and other church polity resources. Key elements of this fund include:

• Support the Presbyterian Church (U.S.A.)'s right of autonomy, protected by the Free Exercise Clause of the First Amendment to the Constitution of the United States of America, to govern itself and order its life and activity free of government intervention (God Alone Is Lord of the Conscience, Minutes, 1988, Part I, p. 555).
• Support a presbytery's rights and responsibilities to "determine the ministers of the Word and Sacrament who shall be its continuing members" (Book of Order, G-11.0403) and to designate such ministers "to such work as may be helpful to the church in mission, in the performance of which they shall be accountable to the presbytery" (Book of Order, G-6.0201).
• Such financial and technical support shall be made at such level (administrative or within trial or appellate courts) as the Stated Clerk shall determine.
• The Stated Clerk is authorized to share up to 50 percent of the direct legal costs, that is, the hours and costs of services and fees billed by attorneys or courts. The proportion may be negotiated downward if insurance or contribution from other sources is available. To assist the OGA in responsible management of this fund, the presbytery is asked to provide a copy of the itemized statement of the attorney and a short quarterly report of the progress of the matter.
• Such financial support of the presbytery for professional legal expenses incurred in connection with such proceedings as described above shall be negotiated in each case, but accepting as a general guide the participation by the Office of the General Assembly in an amount up to 50 percent of such expenses not covered by other sources available to the presbytery. Such expenditures shall be entirely under the discretion of the Stated Clerk, and no governing body shall have any right to have such funds expended on its behalf.
• No such participation shall be made for cases filed by third parties involving inadequate preparation, supervision, or retention of ministers, nor for inadequate maintenance of vehicles, structures, or property causing accident or injury.
• The presbytery should provide a letter certifying its request for assistance in a certain matter, the name of the officer or staff person with whom the Stated Clerk or assigned staff is to correspond, and a description of any insurance coverage that may be available for legal expenses.
• As the matter proceeds, the presbytery's contact person is expected to keep the Stated Clerk informed and invite consultation regarding strategy, provide information needed for consultation to be effective, and copies of all papers filed with a court in the matter by any of the parties.
• The Stated Clerk will consult as needed with the General Counsel of the PC(USA) and may ask for an opportunity to speak with the presbytery legal counsel but will relate primarily with the presbytery's designated contact person.
• Note that the policy adopted by the General Assembly is permissive and funding may be limited by the amount budgeted in a given year. The Stated Clerk could advise a presbytery that in a certain matter the presbytery ought to settle a case or withdraw, and then decline to participate further.

• Strong statement of acceptable and unacceptable conduct: Policies send a strong message to staff and others about conduct that is acceptable and unacceptable in a work setting; the existence of a policy makes it more difficult for a staff person to say s/he did not understand this type of behavior would not be condoned (Examples: policy on the use of alcohol during work hours or while traveling on church business; policy on sexual abuse and harassment). Two 1998 U.S. Supreme Court cases (See Anti-Harassment Policy section for a discussion of these cases.) make the existence and communication of a sexual harassment policy and complaint procedure very important. Without such a policy and complaint procedure, the employer may be open to vicarious liability for sexual harassment unknown to the employer.
• Uniform statement of information: Written policies provide a uniform method of providing staff with information they need to know about such things as benefits (health insurance, pension, etc.), continuing education, vacation, and the like — and ensuring the same information is given to all employees. (Example: if the vacation policy is that all staff receive two weeks of vacation, it is important that all staff know this.)
• Consistency: Policies can help ensure that certain situations are handled in a consistent manner (Examples: holidays; work schedule; reimbursement of business expenses) — and that all staff are treated equally.
• Protection from liability exposure: Policies can help protect a church from liability exposure.

There is one major disadvantage to personnel policies:

If an organization adopts a policy and then does not follow it — or follows it only with respect to certain staff — there is an increased risk of liability exposure to the organization for claims of discrimination. Some states will apply personnel policies as legally binding; some states will not. Consult with an employment attorney in your state as you consider personnel policies. Also, check with other churches and governing bodies in your area to determine if they have personnel policies. These policies may be a helpful model.

• Hiring policies (recruitment; job posting; immigration; references; hiring of relatives; promotions; statement of "at-will" employment; etc.)
• Salary administration (pay periods; overtime; time card procedures; wage assignments; performance reviews; etc.)
• Operations (work schedule; etc.)
• Benefits (health insurance; disability; life insurance; pension; bereavement leave; worker's compensation; social security; unemployment compensation, if applicable; vacation; holidays; maternity and paternity leave; sick leave; jury duty; personal days; policy on HIV/AIDS; attendance records; leave of absence; family and medical leave; continuing education; etc.)
• Accountable reimbursement policy
• Annual performance review and corrective action
• Retirement issues
• Termination and resignation issues
• Conduct issues (race and gender issues; sexual abuse and harassment; violence; code of ethics; conflicts of interest; confidentiality; etc.)
• Complaint process
• Neutral reference policy for lay employees giving only title and length of service (written release from employee allows for full disclosure)
• Personal use of employer's equipment and software (computers, cell phones, Internet, and email)

• that all employers have a strong policy against sexual harassment;
• that the employees be made aware of it; and
• that the employees be made aware of how to file a complaint with the employer and the employer's complaint process.

There are two types of sexual harassment: quid pro quo and hostile environment. In a quid pro quo (this for that) case, if the employee suffers a tangible job action (termination, demotion, loss of pay), the employer will be strictly liable to the harassed employee as will the individual harasser regardless of whether the employer had notice of the harassment.

In a hostile environment case where there is no tangible job action, but the employee proves she was subjected to unwelcome, severe, and pervasive conduct of sexual nature, the employer will be vicariously liable unless the employer can prove an affirmative defense establishing the exercise of reasonable care to prevent or promptly correct a sexual harassment and that the plaintiff failed to use these preventive or corrective measures.

The suggested preventive or corrective measures are

• a strong policy against sexual harassment
• a complaint process
• a training program to communicate the policy and the complaint process to the employees
• each employee should sign documentation indicating they completed the training and the training should be mandatory on at least an annual basis

For more information on sexual harassment prevention, please see the Equal Employment Opportunity Commission's Enforcement Guidance.

In 1999, the EEOC issued enforcement guidance on employer vicarious liability for unlawful harassment by supervisors, extending liability to harassment based on an individual's race, color, sex (whether or not the harassment is of a sexual nature), religion, and national origin. In addition, some state and federal courts have broadened the scope of Ellerth and Faragher to include harassment based on an individual's race, national origin, and disability. It would be advisable to implement similar preventive measures for these forms of harassment.

The following is the policy used by the Presbyterian Church (U.S.A.) General Assembly Mission Council; it is provided as a sample policy:

1. request only information required for business purposes;
2. consider personal information collected and stored to be of a confidential nature and provide adequate safeguards to maintain that confidentiality;
3. limit the availability of personnel information to those individuals within the organization with a need to know; see also the HIPAA summary set out above in this chapter;
4. refuse to release information to outside sources without the employee's written approval except to verify employment (title and length of service) or as required by law;
5. require each employee involved in record keeping to adhere to these practices.

Employers may want to monitor phone calls and email or conduct surveillance for quality assurance or safety compliance. The Electronic Communications Protection Act of 1986 created civil and criminal liability for the intentional interception and disclosure of any wire, oral or electronic communication. To avoid liability the employer must inform employees of the monitoring and obtain their consent.

The five core benefits under the Benefits Plan are: Medical Benefit, Retirement Pension Benefit, Death Benefits, Disability Benefits, and the Assistance Program. A brief explanation of each appears in "The Benefits Plan Overview," a publication of the Board of Pensions.

• Benefits Plan Overview
• Benefits Plan of the Presbyterian Church (U.S.A.)
• Community Nature of the Benefits Plan
• Product Sheets
• Healthcare Summary Plan Description
• Retirement Pension, Death and Disability
• Medicare Supplement
• Retirement Savings Plan Summary Plan Description
• Benefits Administrative Handbook (For Churches & Employing Organizations)
• Benefits Administrative Handbook (For Presbyteries, Synods, & General Assembly Entities)
• Understanding Effective Salary
• Benefits Plan and Divorce
• A Shopper's Guide to Long-Term Care Insurance
• Tax Guide for Ministers & Churches
• Federal Reporting Requirements for Churches
• Information for Members Planning to Retire
• Benefits for Lay Employees
• Social Security Basics for Ministers and Churches
• Major Medical Continuation Program
• Stewardship of Life: Preparing an Advance Directive
• The Living Needs Benefit

Call Baker Bush at Datapath, Inc. for a referral to a local agent/administrator. The phone number is (800)633-3841. Datapath, Inc. is a software company and is familiar with agent/administrators in many parts of the country. The local agent/administrator should be able to assist you in setting up and administering your flexible spending account. Before final adoption, it is advisable to have your attorney review the documents and consult with the agent/administrator.

Another parking plan option is one in which the employer reimburses the employee's parking expenses. Under the Taxpayer Relief Act of 1997, such reimbursement is excluded from the employee's compensation. In 2004, an employer can provide the following and it will not be included in the employee's gross income:

1. Up to $195 per month paid by employer directly to a parking lot operator;
2. Up to $195 per month paid by employer directly to employee as cash reimbursement for employee's parking expenses; or
3. Up to $100 a month for mass transit passes (bus or train tickets, for example) but only if passes or vouchers for passes are not readily available for direct distribution by employer to employee.

This transportation fringe benefit will not be excluded from the employee's gross income if it:

1. is not paid in addition to the employee's compensation; or
2. is paid as cash to the employee and is not reimbursement for parking expenses or transit passes.

For assistance with these parking plans, also call Baker Bush at Datapath, Inc. for a referral to a local agent/administrator. The phone number is (800)633-3841. See the additional information about Datapath, above.