Many churches believe that part of their mission is to train the next generation of ministers and lay leaders. While Bible schools and seminaries provide information and knowledge, most individuals need hands-on experience to apply what they have learned.

In a tradition that goes back to Joshua serving and learning from Moses, churches open their doors to qualified individuals seeking hands-on experience. Churches frequently use the term “intern” to describe these workers.

Interns benefit from the work experience, résumé enhancement, career exploration, networking opportunities, and, sometimes, the potential for a job offer from the church. Unfortunately, the term “intern” does not have a statutory definition, so each church defines the term to suit its purposes. While the meaning of “intern” varies among churches, churches often believe that using the term allows them to escape all employment rules.

In addition to frequently failing to apply employment laws to interns, churches frequently fail to recognize the risks associated with interns. This article guides churches regarding the regulatory and risk environments for their internship programs, assisting them in constructing legally compliant internship programs, and avoiding common risks.

The Fair Labor Standards Act (FLSA) imposes minimum wage and overtime requirements on qualifying employers and employees. While attorneys and law professors debate its application to churches, my experience is that most churches qualify as employers under the FLSA.

If a church does not qualify as an employer under the FLSA, individual employees at a church can still be covered by the FLSA. If FLSA does not cover either the church or the employee, then many state employment laws impose similar minimum wage and overtime rules on the relationship between the church and its employees. In any event, the church must consider the employment laws that apply to its relationships with interns.

No employment law applies to volunteers. Many churches consider their internship programs to be “volunteer” programs without genuinely understanding the term “volunteer.” As a result, some interns qualify as “volunteers” while many interns fail the volunteer test.

In this context, the volunteer test means the individual receives no compensation, expenses, or benefits from the church and volunteers his or her services solely for humanitarian or religious purposes.

The ban on compensation includes noncash compensation, such as housing, food allowances, and so on. If the church provides compensation (cash, scholarships, stipends, or noncash expenses, such as housing or gas), the worker does not qualify as a volunteer, and employment laws likely apply to that relationship.

Before reviewing the application of employment laws to interns, it is necessary to remember that no employment laws apply to workers classified under the ministerial exception. Therefore, it is essential, as with any other worker, to first evaluate the application of the ministerial exception to the intern position. If an intern receives compensation but qualifies for the ministerial exception, then the FLSA or state law equivalent does not apply to that intern.

Every intern that receives compensation and is not subject to the ministerial exception is likely an employee under either the FLSA or applicable state law despite common misconceptions held by many churches.

The DOL has applied the FLSA to some interns since its inception in 1938, resulting in a US Supreme Court decision in 1947 (Walling v. Portland Terminal Co., 330 U.S. 148). The definition of an intern has evolved since then, especially as applied to interns in for-profit settings. Still, there are implications for churches and other nonprofits.

Consider, specifically, the DOL’s Fact Sheet #71, Internship Programs Under The Fair Labor Standards Act. It states that the DOL will apply a “primary beneficiary” analysis to determine the application of the FLSA to unpaid interns. It then lists seven factors that the DOL will consider:

Employee handbooks, sometimes called employee manuals or employee policies, often represent the Achilles’ heel of church legal compliance.

Employee lawsuits frequently appear near the top of all types of lawsuits against churches. Employee handbooks may assist in avoiding these lawsuits, but this critical documentation is often neglected or copied from secular sources that neglect the unique nature of churches and other religious organizations.

In the employment arena, an employee handbook (handbook) plays the same role in employee relations as the Bible does to a Christian’s everyday life.

Just as the Bible includes rules for relationships and how we should conduct our lives, a handbook includes the rules, policies, and procedures governing and establishing expectations for the relationship between the church and its employees.

A carefully created handbook should include the church’s history, culture, core values, and mission. It should guide the church and its employees’ lives together and address employer and employee expectations arising from the relationship.

This article—the fourth in my series on church employment—is intended to guide churches and ministries to create and maintain this vital ministry and risk-management tool.

Over the last 30 years of offering legal guidance to churches, I have heard lots of excuses for not having a handbook. Many small churches believe they are too small to need one. Other churches claim they lack the time, talent, and money to create and maintain a handbook. Some churches believe that a handbook frustrates and hinders the spiritual side of their work environments.

Then there are church leaders who dislike the restrictions that come with using a handbook. Many leaders believe the church is best served by making ad hoc decisions on an employee-by-employee basis, despite the fact that the resulting inconsistent employment decisions inevitably lead to adverse legal and nonlegal consequences.

When closely examining these excuses from church leaders, all of them fail. And that failure likely results in legal liability. While most employment laws require a minimum number of employees, and thus do not apply to many churches, some employment laws apply to churches with just two or more employees. The legal vulnerability is real.

Mishandling employment-related matters may lead to disruption among the ranks of employees or, worse, charges of unlawful employment actions–even if unintended. That’s why church leaders must make a concerted effort to create a well-drafted handbook.

While doing so requires effort, it will save church leaders time managing their staffs, reducing conflicts and legal liabilities. More important, the handbook can enhance the faith, trust, and community within the church.

While larger churches require professional assistance, the fundamental expertise needed to create and maintain a handbook is readily available from numerous reliable sources, including articles like this one on ChurchLawAndTax.com.

Here are six key advantages to implementing a well-drafted handbook.

In Part 2 of this article series, I discussed the importance of using job descriptions as the set of instructions that give structure for people to accomplish their respective roles in a church. Good structure doesn’t stop there, though. Every organization also needs policies and procedures that guide those leaders and employees.

A church may adopt dozens of individual policies and procedures, so wise church leaders will want those policies and procedures to be coordinated and consistent with each other. The church will also want assurances that it has addressed all the employment-related topics in its policies and procedures. Therefore, it makes sense to address all the employment-related policies and procedures in a single document, with references or hyperlinks to the detailed policies and procedures.

The church must also manage the handbook’s length to avoid making it too long to be useful. If the handbook exceeds 50 pages, many employees will not read it.

Church leaders must adopt policies and procedures to protect the church, to define the relationship between the church and its employees, and to comply with applicable laws. The handbook provides an important tool to accomplish these goals.

The governing body should approve and require continual maintenance of the handbook. The personnel committee, for example, should review the handbook annually to ensure that it complies with currently applicable laws. Governing bodies and personnel committees then must hold church leaders accountable for following and enforcing the policies and procedures referenced in the handbook.

The handbook introduces a new employee to the culture and work environment created by the church.

Nearly everyone experiences anxiety when reporting to a new job. The handbook should make new employees feel welcome. It should also answer most new employee’s questions about practices and benefits.

The handbook should describe the church’s culture and explain the relationship between the employee and the church, including the church’s expectations. The new employee’s compliance with these expectations helps assimilate him or her into the church team and reduces conflict. The handbook helps the new employee more quickly become a productive team member.

The handbook should help prevent miscommunication between church leaders and church employees.

For example, listing the church’s rules of conduct and the employment benefits it offers provides a basis for a common understanding between church leaders and staff.

Handbooks, however, are of little use if they are not read or understood by employees. Churches want to encourage new employees to ask questions early in the relationship. If an employee does not understand a part of the employee handbook, the church needs to know as soon as possible.

So, churches should require new employees to read the handbook within the first few weeks of employment, and signal they understand it by signing a statement to that effect. When the church later disciplines an employee for violating a provision in the handbook, the typical employee excuse is, “I did not understand.” This signed document refutes that notion and supports the church’s disciplinary action.

Church leaders should refer employees to the handbook for common employment-related questions. While no handbook will answer all questions, it should reduce the time leaders spend responding to employee questions.

One crucial benefit of a handbook is to maintain consistency and to avoid situations where an employee might make unreasonable requests based on difficult or emotionally charged circumstances.

Consider, for example, the employee who sought a raise because his son was starting college and the employee had no resources for college. Or consider a pastor who requested his church to continue his compensation for as long as he or his spouse live because he had failed to participate in the church retirement plan.

By addressing these and similar issues in the handbook, the church establishes objective rules and expectations that help protect the church and its decision-makers from the unreasonable demands of employees, including pastors.

Most employment laws authorize employees to sue the employer for violations of those laws. In addition, some churches must comply with dozens of federal, state, and local employment laws and ordinances.

While church leaders rarely have the time to learn about all the employment laws and ordinances that apply to their church, the handbook can include instructions on how the church complies with employment laws and ordinances. If the church follows its handbook, the opportunity for employees to sue the church is reduced.

A handbook is a legal document, although usually not enforceable as a contract (see “Recommended disclaimers” below).

To ensure it is properly constructed and remains current, it should be regularly reviewed by an attorney or human resources (HR) professional, ideally one locally based who specializes in church employment law.

The tone of the handbook should reflect the culture of the church.

If the church culture is formal, the handbook should reflect formal language. If the church culture is informal, the handbook should use a conversational style.

Some churches include photos and illustrations to break up page after page of text. Some handbooks are made more engaging by including hypotheticals and examples. Sometimes churches use anecdotes to illustrate the text and make it more understandable.

Most handbooks for churches start with a letter from the pastor that welcomes employees to the church. This letter helps set the tone for the handbook and introduces employees to the church’s culture, mission, and values. In addition, many handbooks include a history of the church, vision statement, mission statement, and core values statement.

Churches should review the following topics to determine whether they apply to them.

One of the most critical parts of a handbook is the church’s statement of faith. As a religious organization, churches have the freedom to practice their faith in many of their employment decisions. The statement of faith demonstrates to employees and outside authorities alike that these are sincerely held religious beliefs.

The statement of faith should not be a lengthy treatise. Instead, it should reflect the church’s fundamental beliefs, especially as those beliefs relate to the current culture. Typically, the statement of faith is one to two pages long.

I recommend that churches require job applicants to agree to the statement of faith before applying for a job. I do not recommend copying another church’s statement of faith unless the source church is part of the same denomination or faith group. The statement of faith must reflect the local church’s beliefs as practiced by that church.

The handbook should include a code of conduct that applies to all employees, including pastors.

Violations of the code of conduct should cause a disciplinary action against the employee. Some states allow the church to apply the code of conduct based on the employee’s conduct both at work and away from work.

The code of conduct should reflect the church’s values, along with the actions expected of its employees. The code should be practical and expressed in terms of right and wrong behaviors. This code should include the church’s expectations of honesty and integrity while condemning dishonest and unlawful behaviors. It should reflect the church’s doctrine and practices as applied in the current culture. I suggest supplying Scripture references where applicable.

The handbook should include the following disclaimers.

First, it should state that all employees serve at the pleasure of the church and that the church follows the employment “at will” doctrine (except in Montana). The employment “at will” doctrine means either the employer or employee can terminate the relationship at any time, with or without a reason, as long as the reason does not violate an employment statute.

Second, the handbook should state that it does not create a contract between the church and the employee. The existence of an employment contract alters or eliminates the employment “at will” doctrine. Without this disclaimer, some courts have ruled that the handbook eliminated the “at will“ doctrine and enforced the handbook as a contract.

Third, it should notify employees that the handbook can be changed at any time without notice, although employees still should be informed of changes in a timely manner.

Finally, it should make it clear that employment is not for any specific length of time.

Most churches must adhere to federal employment statutes. The best way to assure compliance with these statutes is to adopt policies and procedures that reflect how the church complies with those statutes. Therefore, the church should consider whether its handbook should address each of the topics arising from the federal employment statutes below as they apply to the church. While I have attempted to list all federal employment statutes applicable to churches, the list may not be comprehensive.

Title VII, Civil Rights Act of 1964

This statute applies to churches engaged in interstate commerce with 15 or more employees during 20 or more weeks during a calendar year. In addition, Title VII prohibits employers from refusing to hire, discharge, or otherwise discriminate against any individual about compensation, terms, conditions, or privileges of employment based on race, skin color, religion, gender, ancestry, or national origin.

The church should not fail or refuse to hire, discharge, or discriminate against any individual within any protected class unless a religious exception applies (see “Exception” below). The church cannot limit, segregate, or classify its employees or applicants for employment that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect their status because the employee is in a protected class.

This statute applies to all terms of employment, including recruiting, hiring, placement, promotion, termination, layoff, recall, transfer, leaves of absence, compensation, and training.

Americans with Disabilities Act (ADA)

This statute applies to churches engaged in interstate commerce with 15 or more employees.

The church may not discriminate against disabled individuals as defined by the ADA. A person has a disability if he or she has a physical or mental impairment that substantially limits a major life activity.

The ADA also protects individuals who have a record of a substantially limiting impairment and people who are regarded as having a substantially limiting impairment. A substantial impairment significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning, or working.

The handbook should state that the church complies with the ADA if it has 15 or more employees.

Pregnancy Discrimination Act (PDA)

This statute also only applies to churches with 15 or more employees.

The PDA forbids discrimination based on pregnancy with any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. In addition, this statute applies even if the individual became pregnant while violating the church’s code of conduct by engaging in sex outside of marriage.

The PDA also prevents discrimination against nursing mothers. The employer must provide a private room, other than a restroom, for expressing milk. It also must provide unpaid breaks to allow nursing mothers time away from their workstations to express their milk for up to one year after giving birth. Some states give nursing mothers additional rights and mandatory accommodations.

The handbook can honor individuals protected by the PDA and state that the church complies with the PDA if it has 15 or more employees.

Harassment

Title VII applies to harassment based on the Title VII protected classes. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

Churches must protect employees from harassment by members, vendors, volunteers, and other employees. The handbook should include:

Occupational Safety and Health Act (OSHA)

Employee safety needs to be addressed in the handbook. Churches must report to OSHA all work-related deaths, in-patient hospitalizations, amputations, and eye losses. If the death occurs within 30 days of the work-related incident, the church must report the death within 8 hours of learning of it.

For any in-patient hospitalization, amputation, or eye loss that occurs within 24 hours of a work-related incident, the church must report the event to OSHA within 24 hours of learning of it.

The handbook should state that the church takes employee safety seriously and complies with the employee safety requirements and OSHA rules that apply to the church.

Fair Labor Standards Act (FLSA)

FLSA applies to most churches because it covers enterprises that engage in interstate commerce. Thus, even if the church conducts no activities or business outside its home state, the FLSA also applies to individual positions involved in interstate commerce. For example, if an administrative assistant regularly orders office supplies over the internet, the position is likely covered by the FLSA even if the church is not a covered enterprise.

FLSA requires employers to pay minimum wage and overtime to nonexempt workers. Therefore, the handbook should address these issues:

Equal Pay Act

The Equal Pay Act, included in the FLSA, applies to every employer subject to the FLSA. It requires that equally situated employees must be paid equally.

The handbook should state that the church complies with this statute, and the church should establish a compensation protocol that honors the Equal Pay Act.

Immigration Laws

Churches are subject to the immigration statutes that require the church only to hire citizens and those authorized to work in the United States.

Churches must secure a Form I-9 (Employment Eligibility Verification) from each new employee. The church must maintain a physical copy of each Form I-9.

The handbook should notify employees that the church follows federal immigration laws, and those employees with day-to-day involvement with authorizations to work should understand the requirements.

Tax Laws

Churches must collect payroll taxes from nonministerial employees. Each employee must provide a Form W-4. The best practice is to require this form annually from employees.

Ministerial employees may provide a Form W-4, but they must specify the dollar amount they want to be withheld for federal and state income tax purposes. However, the church is prohibited from withholding FICA and Medicare taxes from ministerial employees.

The handbook may contain a general statement of the church’s withholding requirements to appropriately manage employee expectations.

Genetic Information Nondiscrimination Act of 2008 (GINA)

GINA applies to all churches with 15 or more employees. This statute prohibits employers from using genetic information in making employment decisions. The handbook should state the church complies with GINA, and often this compliance initiative is included near or within the policies applicable to Title VII.

Fair Credit Reporting Act (FCRA)

FCRA governs when and if the church may conduct criminal or financial background checks.

The church may conduct background checks only with the applicant or employee’s written consent. The DOL has claimed that background checks have been used to enable unlawful discrimination under Title VII. Therefore, I recommend that churches not conduct the background check until a conditional offer of employment has been made.

The handbook should state which positions, generally, the church may conduct a background check for, when the checks will occur, who will have access to the background check results, how the results will get stored, and when—if ever—the results of the background checks are destroyed. For positions working with children or youth, the background checks should be repeated as often as the church’s insurance carrier requires (typically every three years). For financial positions, the credit report should be repeated every three to five years, or when the church suspects malfeasance.

Family and Medical Leave Act (FMLA)

FMLA applies to churches with 50 or more employees during 20 or more weeks during a calendar year. Like other federal employment statutes, the employee count includes all entities under the church’s control. For example, if the church also operates a school in a separate corporation and the church elects a majority of the school’s board, then the school’s employees are added to the church’s employees to determine whether the FMLA applies.

Except for certain hierarchical churches, denominational bodies do not include local churches in their employee counts because they do not maintain legal control over them.

In addition, the church must offer unpaid leave due to certain medical conditions to qualifying employees.

For situations in which the FMLA applies, the handbook should describe who is qualified for FMLA leave; when it may be taken; how the leave should be coordinated with other types of leave; the documentation required for the leave; the minimum leave time increment available; the availability of fringe benefits during the leave; the notifications required for coming back to work; and the reentry process for when the employee returns to work.

The handbook should also address the different FMLA leave required when the leave involves a military member of the family. The FMLA policy, appropriately crafted, will serve as a tremendous tool for those administering leave that the FMLA covers.

Worker Adjustment and Retraining Notification Act (WARN)

If a church has 100 or more full-time employees, or has 100 or more full-time and part-time employees working 4,000 or more hours per week, WARN requires the church to notify the state employment agency in advance if it plans to lay off or reduce hours for a significant portion of its workforce. The employee count includes all entities under the church’s control.

If applicable, information about WARN should be included in the handbook.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA requires employers of all sizes to provide a five-year, unpaid leave of absence to individuals called into service with the United States military.

The church must reinstate covered employees to the same or similar position before their military service. The church must compensate and provide benefits as if they had never left employment. Upon returning, they may have the same tenure, compensation, and benefits as those employees who remain continuously employed with the church.

The handbook should include references to USERRA and provide the processes to allow the church to comply with this statute.

No handbook is complete without addressing state statutes and local ordinances applicable to employment. Also, if a church has employees working in states other than the church’s home state, the church will need to address each state’s statutes and each local government’s ordinances in the handbook. This topic becomes very important for multisite churches that cross state boundaries. Therefore, while I cannot address all the topics and variables among the 50 states, I will list frequent topics addressed in state statutes and local ordinances.

Additional classifications protected from discrimination

Many states have adopted a version of Title VII that adds to the federal list of protected classes of individuals. Your church will need to determine whether these additional protected classes apply to them or if an exclusion is available to religious employers. For example, some state laws protect from discrimination because of marital status, sexual orientation, sexual perception, and gender identity.

Payday laws

All states have payday laws, with significant fines and penalties for violations. These laws govern when and how an employer must pay an employee. They apply to all churches and govern various issues, including pay frequency, payment of wages upon separation of service, and withholding authorizations.

While withholding payroll taxes does not require employee authorization, almost every other deduction from an employee’s pay must be voluntary and authorized in writing by the employee.

Employment of minors

Every state regulates the employment of individuals under the age of 18. Therefore, the handbook should either prohibit the employment of individuals under 18 or allow employment authorized by the state statute.

Garnishment

All states allow garnishment of wages by certain classes of creditors with a court or administrative agency order. The handbook should state the church complies with garnishment court orders.

Required time off

Some states require certain types of paid time off, such as paid sick leave; the payment of accrued vacation and sick leave upon separation from employment; and authorized time off to fulfill civic duties, such as jury service and voting—and the time off may be paid or unpaid, depending on state law or the church’s written policy.

The handbook should reflect state law and the church’s business decisions applicable to compensation for required time off.

Mandatory breaks and lunches

Some states require paid and/or unpaid breaks during a workday. All states require an uncompensated lunch or meal break if the employee works a minimum number of consecutive hours.

The handbook should, at a minimum, reflect state law, and the policies may also capture a church philosophy relating to employee health and quality of the employee’s work experience.

State unemployment benefits

Most states do not require that churches participate in the state unemployment benefit plan. However, some churches choose to participate so that former employees will have access to unemployment benefits.

The handbook should inform employees of the church’s decision regarding unemployment. This communication helps establish employee expectations should their employment end with the church.

Further, the policy can serve as additional evidence supporting an exemption if the church must defend against a future claim for unemployment benefits.

Workers’ compensation

Forty-six states require employers to carry workers’ compensation insurance. I recommend that every church purchase workers’ compensation insurance, even if the state does not require it.

The handbook should inform the employees about the church’s decision regarding workers’ compensation insurance and the reporting processes for employee injuries and illnesses.

The handbook should include, summarize, or reference church policies applicable to employees. The policy topics below may not be required by a statute, but instead, they reflect the church’s management decisions related to their employees. The decision to include, summarize, or exclude a policy should be made in consultation with the church’s lawyer or HR professional. In some cases, those policies may be simply hyperlinked or briefly summarized while letting the employee know where and how to obtain a more detailed copy.

Here are some suggested topics to cover:

Temporary workers

If the church employs workers on a temporary or time-limited basis, this policy should describe their benefits during their employment. Offer letters for a temporary employee then may be tailored to dovetail with the policy to establish employee expectations.

Remote work

The handbook should include the church’s policy on allowing certain employees to work remotely, including the terms and conditions of remote work. A separate “remote work commitment” form may be included so the policy expectations are manageable.

Nepotism and fraternization

The handbook should include the church’s nepotism and fraternization policy. The policy should define how the policy applies to family members.

For example, the nepotism policy might state that it only applies to immediate family members. If the church allows family members to be simultaneously employed by the church, the handbook should detail the hiring and supervision requirements for those family members. For instance, the policy should address whether immediate family members can work in the same department or ministry.

Since romantic relationships frequently occur in the workplace, the church should address this topic. Romantic relations can sometimes develop into unlawful harassment. The policy should also explain the protocol to follow if coworkers become romantically involved so that the risk of harassment is minimized.

Compensation

The handbook should describe the church’s compensation policies, including descriptions of the church’s compensation philosophy, the church’s compensation decision-makers, and its review processes.

Available fringe benefits

This policy should define the available fringe benefits offered by the church and the classes of employees eligible for the benefits. (Often, churches offer fringe benefits to specific groups or “classes” of employees.)

Churches should pay close attention to the different statutory requirements for each fringe benefit. The employee benefit statutes often contain specific definitions that may not fit neatly within the church’s definitions of who should be eligible for benefits.

Policy statements regarding fringe benefits should include a disclaimer that the nature and extent of benefits may change at any time, with or without notice to the employee.

The handbook should express the employer’s discretion to discontinue any benefit. The benefits summary should be a general overview and should allow for flexibility.

Some fringe benefits will reference a separate document or policy. The specific plan documents generally control over the handbook. Often “See HR for details” is an appropriate way to manage expectations and any conflicts between a plan and a policy. The HR department should always have a current list of benefits or plans.

Vacation, paid time off, and holidays

A policy should list types of paid time off and other forms of leave. Besides the law-mandated leaves, most churches provide paid holiday pay, vacation, sick leave, bereavement leave, and jury service leave. Due to potential violations of deferred compensation rules, the church should not allow employees to carry unused paid leave to subsequent years.

If the church offers a sabbatical leave, this policy should outline the eligibility and logistical issues. In addition, many churches have a separate sabbatical leave policy that contains more details about this leave.

This policy should describe the circumstances when the church might dock an employee’s pay, such as when the employee reports to work late. In addition, the church should check its docking policy against federal and state laws, such as the FLSA, especially for employees who are classified as exempt from overtime requirements.

The handbook should include a discussion of absenteeism and job abandonment.

Outside employment

This policy should address whether employees may engage in employment outside of the church and any conditions associated with outside employment.

Computer, laptop, tablet, and cellphone

If the church provides computers, laptops, tablets, and/or cellphones to its employees, the policy should describe the terms and conditions associated with appropriate uses or refer to the policy.

Internet usage

Every church requires employees to utilize the internet in performing their job duties. Therefore, this policy should describe the terms and conditions associated with internet usage, even if the employee brings their own device or cellphone to the office.

Social media

Most churches have a social media presence, and most employees also have a personal social media presence. Since social media presents the church to a worldwide audience, everything posted on social media by employees will represent the church. Therefore, the handbook should include the church’s social media policy or reference to it.

Media inquiries

If the church appears in the media, reporters will frequently contact church employees for comments or additional information. This policy prevents unauthorized employees from communicating with any media representatives. The handbook should inform employees about this policy and instruct them to refer the media inquiries to the authorized spokesperson.

Dress code and appearance

Some churches include a dress code in their handbooks. The policy should reflect the church’s culture. For example, the church may want to dictate business attire in a traditional culture, while an informal culture may require business casual attire. In addition, the policy may allow employees to dress appropriately for the job duties.

Some churches base their dress code on sincerely held religious beliefs. If the religious beliefs dictate a different dress code for men than women (or vice versa), the handbook should detail religious reasons for the church’s dress code. For example, some churches require women to wear dresses and skirts because they believe the Bible requires women to wear dresses and skirts.

Workplace safety, violence prevention, and weapons

The church should have a workplace safety policy that includes its safety protocols. The handbook should provide a means for employees to report if they believe an employee, volunteer, or member threatens workplace violence or exhibits a violent temper.

If the church restricts employees from possessing weapons on campus, the handbook should tell the employees the restrictions. Some states’ laws restrict possession of handguns or weapons if the church has a school or daycare on site. The church’s policy should be tailored to comply with any such restrictions.

The church should adopt a security plan to guide employees if an emergency occurs, such as a fire, flood, medical emergency, or unauthorized intruders. The handbook should reference the plan and tell employees how to access it.

Safety

The church should adopt a safe practices policy regarding hazardous chemical usage or power equipment, such as mowers. It will indicate the OSHA requirements applicable to the church. The handbook should alert the employees to the existence of such a policy and how to access it.

Infectious Diseases

Churches should adopt an infectious disease policy that informs employees regarding the requirements to maintain a safe workplace. The policy should prohibit employees from reporting to work sick, or if they have been exposed to an infectious disease. The handbook should summarize and reference the policy.

Child abuse

Churches that maintain children’s or youth programs or daycares should adopt a child abuse reporting policy that addresses state law. Child abuse reporting laws vary from state to state, so any policy should be tailored to meet the applicable legal requirements.

Vehicle operations and cellphone use

The church should address the requirements to operate church vehicles on church business. For example, most vehicle insurance policies require that all drivers be screened for valid licenses and citation history. If the church operates buses, the church should mandate that bus drivers possess a commercial driver’s license.

Employees required to drive a vehicle to conduct church business must understand the hazards and possible legal issues related to using a cellphone while driving. The church might be held liable if the employee uses a cellphone while driving on behalf of the church and causes an accident. Therefore, the church should prohibit cellphone use without a hands-free device while driving on church business, and such a prohibition should be stated in the handbook.

Alcohol and tobacco

If the church restricts employees from using alcohol and/or tobacco, a policy should explain the restrictions.

Drug testing

If the church implements a drug-testing policy that complies with state requirements, the policy should detail when the church may test for illegal substances and the process followed if the presence of drugs is detected.

Intellectual property

Every church needs an intellectual property policy that informs employees about the work for hire doctrine. It should explain how the church applies this doctrine to intellectual property created by employees within the scope of their duties and responsibilities and/or through use of the church’s assets.

Business expense reimbursements and church-issued credit cards

If the church reimburses employees for business expenses incurred by the employee, the handbook should include the policy or refer to the policy. This policy should address any conference and training requirements imposed by the church. It should also convey any restrictions on reimbursements of certain expenses. For example, many churches refuse to reimburse the cost of alcoholic beverages.

If the church provides a church-issued credit card to employees, the handbook should include the credit card policy or a reference to the policy. In addition, the handbook should include whether the church requires employees to enter into a credit card agreement to be issued a credit card.

Whistleblower

Every church must adopt a whistleblower policy to comply with federal law. The handbook should summarize and reference the policy.

Conflict of Interest

The IRS requires every church to adopt and follow a conflict-of-interest policy. The handbook should summarize and reference the policy as applicable to employees.

Confidentiality and privacy

The church handles many confidential matters. The handbook should tell employees how the church defines and handles confidential matters.

The Health Insurance Portability and Accountability Act (HIPAA) applies to some churches, meaning the church must treat all medical information confidentially in accordance with the law.

The church also needs to enact safeguards to keep financial and personal data private.

Many employees have a level of expectation of privacy while working. Therefore, the handbook should describe the church’s privacy policies and inform employees how and when the church may use their private information.

A policy should also inform employees about the church’s surveillance tools, including screening emails, surveillance cameras, and scanning computers and laptops assigned to them.

Access to employee files

This policy should detail the files the church maintains on each employee, the contents of each file, and whether an employee has access to that file. The policy should follow state laws regarding this topic.

Employee Discipline

Not every employee performs at the level the church expects. The church has much latitude in implementing a discipline policy. But it should seek to address employee shortcomings fairly and provide a mechanism for employees to initiate reports of unfair treatment by other church employees.

The discipline section should describe the process implemented when an employee fails to meet the church’s expectations. Many churches use a progressive disciplinary system in which an employee receives a verbal warning, a written warning, a performance improvement plan, and termination if the employee fails to meet the church’s expectations.

The handbook should state that employees may not require the church to follow its disciplinary system in all circumstances. It should allow for immediate termination if the church determines that action best serves the church.

Separations from employment

Separations are either voluntary or involuntary.

The policy should state that employees are required to give notice before voluntarily leaving employment.

Involuntary separations include layoffs and employer-initiated separations from employment. A policy may describe how the church will implement a layoff if the need for one arises.

This section should include the church’s policy on separation payments, if any. Since most former church employees cannot claim unemployment benefits based on their church employment, many churches provide for generous separation payments. If the church provides a generous separation payment, the church should consider securing a separation agreement with a release.

This section also should include the exit interview process and discuss the process for rehiring if the employee and church desire.

Retirement

While a church cannot utilize a mandatory retirement age for employees not covered by the ministerial exception, the handbook should describe the process for employees who want to retire. The handbook may describe when the church may require ministerial exception employees to retire.

References

The church should include its policy regarding references provided to former employees. Some states provide immunity to former employers who provide negative references if former employees consent in writing to the reference beforehand. In addition, some churches adopt a policy of providing only the dates of employment, job titles, and final compensation.

Alternate dispute resolution

Should your church have an alternative dispute resolution policy and agreement and, thus, include it in your handbook?

Many churches prefer to use biblically based alternative dispute resolution to resolve disagreements with employees. The main benefit is that disputes are handled privately and outside of a public forum.

Biblically based alternative dispute resolution services will appoint a neutral mediator to see if the dispute can be resolved by an agreement instead of arbitration or a lawsuit. The neutral mediator will utilize biblical principles and legal principles to assist the parties in settling their dispute. Good mediators typically will have an 80-percent success rate.

The most significant disadvantage of mediation or private arbitration is cost. The mediator or arbitrator will require payment for his or her services, while the government pays a judge. If not resolved in mediation, an arbitrator or arbitrators will cost several thousand dollars a day to conduct the arbitration.

My experience is that an arbitration costs slightly less than regular lawsuits. Still, arbitrator fees, experience, and efficiencies can tilt the expense scale otherwise, depending on the dispute in arbitration.

Suppose the church wants to implement a biblically based alternative dispute resolution policy. It should describe the process in the handbook and require all employees to sign an agreement to use alternative dispute resolution as the exclusive remedy for the alleged wrongful decisions.

Due care with the guidance of a qualified attorney should be taken to create an enforceable agreement if biblically based alternate dispute resolution is the church’s choice. Additionally, churches should check with their insurers about coverage. Some insurance companies will not pay the cost of biblically based alternative dispute resolution, while they will pay for defending a lawsuit if the church has employment practices liability insurance.

All churches with over two employees should adopt a comprehensive handbook. Smaller churches may adopt a shorter handbook because it will not need to address employment matters inapplicable to a small workforce.

In comparison, larger churches (more than 15 employees) need a more comprehensive handbook because they must consider a greater array of regulations. Whether a small church or large church, implementation represents a significant undertaking.

Here are suggested steps for developing a handbook and then conducting periodic reviews of it:

Developing an employee handbook may seem like a daunting task. But taking the time and effort to do so will help your church confidently exercise good stewardship over its most valuable earthly asset–its employees.

My hope and prayer is that the guidance and accompanying checklist will help streamline the process and offer the framework needed to both create and implement a handbook that is legally compliant and serves your church and its employees well.

The author thanks CPA Elaine Sommerville for her useful comments and edits to this article.

Return to series home page.

Churches often lack clarity and fail to comply with applicable law in several areas related to employment. Attorney Frank Sommerville takes an in-depth look at each area with the goal of giving greater clarity, encouraging tax and labor law compliance, and detailing best practices.

For additional reading beyond this series, see Richard Hammar’s analyses of notable court decisions about common employment disputes.

The ministerial exception is a valuable legal protection allowing churches to make internal employment decisions without the fear of government intervention or entanglement.

Yet this legal doctrine is often misunderstood, or worse, misused by churches.

This series of articles on church employment aims to give clarity, offer best practices, and encourage tax and labor law compliance in several key areas of church employment:

Part 1 Applying the Ministerial Exception to Church Employees

Part 2 Developing Strong Job Descriptions for Employees and Volunteers

Part 3 Internships: Blessings or Blind Spots?

Part 4 The Importance of a Legally Sound Employee Handbook

Part 5 Title VII and Church Employment Practices

Part 6 The Remote Worker and the FLSA

Additional Reading: Attorney Richard Hammar analyzes notable court decisions about common employment disputes.

This article aims to help leaders learn how the ministerial exception does—and does not—apply to employees and properly use it to maximize its effectiveness. Doing so requires developing a working knowledge of the legal doctrine as well as understanding key legal rulings where the exception has applied. Here are two examples that merit mentioning as we begin this article, along with this series, on employment law for churches:

These landmark decisions validated the concept of the ministerial exception, cementing the doctrine’s role in church employment matters.

This first article in my series begins by explaining the concept of religious autonomy and briefly discusses Supreme Court cases that form the basis of the ecclesiastical abstention doctrine, a pioneering legal doctrine supporting religious autonomy. From there, I explain how religious autonomy and the ecclesiastical abstention doctrine paved the way for the ministerial exception.

I then further explore the ministerial exception’s scope, describing how courts determine if a job description fits within that scope. I conclude with practical ways to apply the ministerial exception to common departments or employment areas in the church.

My prayer is that church leaders become better educated about the ministerial exception and more readily equipped to use it appropriately for their employment decisions.

The historical concept of religious autonomy is well established in the United States. Referred to in the courts as the ecclesiastical abstention doctrine, this concept is the key to understanding the ministerial exception and its application to employment decisions involving religious organizations, including churches, and certain employees.

Based on the freedom of religion clauses of the First Amendment to the US Constitution, the ecclesiastical abstention doctrine prohibits the government from intruding into religious or spiritual decisions within a religious organization.

All Supreme Court decisions in this area employ a “totality of the circumstances” test to apply the ecclesiastical abstention doctrine rather than focus on a specific set of facts. When weighing whether to apply the doctrine to a church’s employment decisions, courts use a specific version of this test called the ministerial exception. With this test, the court applies the totality of the circumstances related to the employment decision to determine whether the government’s intrusion into that decision may violate the religious autonomy principle. This principle means that the government must abstain from ordering the church or other qualified religious employer to make a different employment decision with respect to a worker involved in religious or spiritual matters of the employer.

Understanding the history of judicial decisions forming the ecclesiastical abstention doctrine helps explain how the ministerial exception came into existence and has evolved through the present day. The first significant legal ruling establishing the ecclesiastical abstention doctrine dates back nearly 150 years.

Explore cases recognizing the ministerial exception and cases not recognizing the ministerial exception in attorney Richard R. Hammar’s Pastor Church & Law.

In Watson v. Jones, 13 Wall. 679 (1872), the Supreme Court found that the government cannot intrude into a church’s internal governance unless there is either an allegation of fraud or the court can apply a neutral law to resolve the dispute without considering the beliefs of the church.

Stated another way, churches have the right to govern themselves and make decisions without governmental interference into religious polity. The government cannot become involved in the church’s internal decisions because doing so violates the First Amendment.

A little more than 100 years later, the Supreme Court reaffirmed this First Amendment principle in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U.S. 696 (1976), a case involving a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, including its property and assets. Both federal and state courts frequently cite this ruling and Watson v. Jones to find that the government cannot intrude into a church’s internal decision-making.

These decisions play a crucial role when one considers what unfolded during the 20th century. The federal government began regulating the relationship between an employer and its employees. These employment laws and regulations extend to all employers, including religious employers. By the middle of the century, the courts, out of concern for potential violations of the First Amendment, started applying the First Amendment to employment cases involving religious organizations.

The courts based these decisions on the ecclesiastical abstention doctrine. In 1972, using Watson v. Jones as its basis, the Fifth Circuit Court of Appeals applied the ecclesiastical abstention doctrine to prevent the court from considering a claim filed by a minister against her church under Title VII of the federal Civil Rights Act of 1964. McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972). Frequently cited as the beginning of the “ministerial exception” cases in employment law, the court observed:

The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister’s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.

In the nearly 50 years since McClure, over 200 lower courts and over 35 appellate courts have considered the ministerial exception when an employee claims a religious organization violated an employment statute. The lower courts have applied the ministerial exception well beyond churches and beyond church-recognized clergy. They have applied the ministerial exception to many positions and virtually every employment law in existence. See the chart for key details of more than 40 appellate cases.

Based on the way courts have shaped the ecclesiastical abstention doctrine, and along with it, the ministerial exception, churches possess broad latitude regarding how they handle their affairs, especially in the realm of employment. But common errors made by both churches and their professional advisors, including legal counsel, often result in a limited application of the ministerial exception.

Understanding the ministerial exception’s true scope can help ensure it retains its effectiveness. And while many advisors worry about the potential over-application of the principles, it is equally (if not more) essential not to limit the principles’ application. Doing so works only to the detriment of churches.

One of the most common errors involves too narrowly defining who falls under the exception. Churches frequently limit the ministerial exception’s application by incorrectly limiting the ministerial exception only to their clergy or recognized ministers. This error arises because church management is already conditioned to treat clergy differently for tax purposes. Those who follow this train of thought do a disservice to the church.

Only licensed, ordained, or commissioned ministers qualify for treatment as ministers for tax purposes, so it seems natural and logical to apply this requirement to the ministerial exception. But the tax law test for treatment as a minister differs from the employment law test. The employment law concept is much broader than the tax concept. No ministerial credential is required for the application of the ministerial exception.

Additionally, the tax law concept is concerned with the time spent on religious duties. The employment law concept is more concerned about the importance of the religious duties. The ministerial exception may apply to positions throughout the church involved with delivering and disseminating the church’s faith and message.

Another common error made by churches involves a mistaken belief that the ministerial exception only applies to specific employment laws. Ministerial exception prevents the application of all federal and state employment statutes. No exceptions exist to this rule.

Lastly, churches also frequently err because they impose higher involvement in religious duties than the law requires. In Hosanna-Tabor, the Supreme Court rejected the view that the worker must perform religious duties most of their work time. Instead, churches should focus on the significance of an employee’s religious duties. The teacher in the Hosanna-Tabor case lead a 15-minute devotion out of a 6-hour instruction day. But she also incorporated the church’s teachings into each subject when appropriate. This level of religious activity was sufficient to support the application of the ministerial exception to her.

Although there is no rigid formula in determining whether the ministerial exception applies to an employee, the courts consider the totality of circumstances by relating the employee’s duties to the church’s religious functions. The courts focus on four areas of inquiry:

Frequently, the courts defer to the church’s determination of who qualifies for the ministerial exception. As a result, churches must classify positions as subject to the ministerial exception in their internal documents, such as job descriptions. The courts and government regulators rely on job descriptions as one of the most critical documents in determining whether a position qualifies for the ministerial exception.

The church’s definition and explanation of an employee’s role in the life of the church’s activities are important. Job descriptions must accurately reflect the spiritual or religious nature of the position.

Job descriptions and employment contracts should require employees to carry out the church’s religious mission and specify their work evaluations include evaluating their spiritual responsibilities. The church must view the position as playing a vital role in carrying out the church’s mission and state as much in the job descriptions and contracts.

Explicitly stated duties should include assisting others in participating in religious activities, praying with others, and attending church services, as applicable. A job description should also require the individual to perform all duties and conduct their personal lives according to the church’s teachings and practices. Additionally, in most ministerial exception positions, the employee should be leading others to live according to the church’s teachings and practices.

Job descriptions should address the following factors.

The courts do not look for a seminary degree. Instead, they focus on what religious education is required for the position. The church may have different educational requirements for different positions.

A youth minister position might require Bible school courses, while the church might require a childcare worker to complete a workbook and Bible class that reflects the church’s teachings. The church might believe that completing particular Bible study courses at the church is sufficient.

In other cases, regular attendance at the church over an extended time frame might suffice for the religious training. A new employee orientation class including teachings on the church’s beliefs and practices might be appropriate sometimes.

Some courts separate personal religious training from professional religious training for the position held. For these courts, preparation to lead others in the faith is what separates personal religious training from more professional religious training.

The key concept here is that the job description includes details about the religious training needed for this position and any additional training to maintain the position.

The courts and the US Department of Labor (DOL) caution placing too much importance on the title. At the same time, titles frequently play a role in determining whether the ministerial exception applies. Some courts interpret this factor to include the employee’s subjective perception of their role at the religious employer. Stated another way, did the employee believe that they were carrying out the religious or spiritual mission of the church as part of their job duties?

A job title should reflect the position’s spiritual responsibilities, and if appropriate, churches should use “Pastor” or “Minister” in the title.

Suppose the employee writes communications to members about the church’s activities, beliefs, and practices. An appropriate title might be “Spiritual Communications Director” instead of “Communications Director.”

However, the church should also avoid over-spiritualizing position titles. Naming the facilities’ employees “Levites” as keepers of the “temple” will not qualify them for the ministerial exception.

Job titles should reflect the position’s spiritual or religious duties and responsibilities and reflect how congregants view the position.

Workers carrying out the church’s mission should perform their duties consistent with the church’s theological beliefs and standards.

For example, suppose the position involves leading a parenting class. In that case, the job description should require the worker to teach the parenting class consistent with the church’s theological beliefs and standards. The job description should require the worker to follow biblical standards in parenting his or her children as well.

Since the worker represents the church to the world at large, a church should also require the worker to abide by its teachings on a 24/7 basis. The key concept is that the church’s written policies and procedures require the employee to perform duties and to live in agreement with the church’s teachings.

The job description should describe how the position fits within accomplishing the church’s religious mission. It should also include how the position communicates the church’s message to its members and those outside the church.

Suppose the position includes drafting messages for the church’s social media accounts. In that case, the job description should include how social media communicates the gospel on behalf of the church. It should require the worker to be familiar with the church’s doctrine and its practical application. It should require that all posts agree with the church’s theological beliefs. It might also require the worker to draft messages that seek to reach the unchurched or those who have drifted from the church.

The job descriptions should provide detailed guidelines for workers who select or author content. The worker need not create content as a preaching pastor does. But the worker might select a religious class curriculum or select content from the pastor’s sermons for newsletters or social media, for instance. Such types of creation and selection should be specifically noted and described to demonstrate the responsibilities and requirements intertwined with religious functions.

If the position involves educating others about the faith or leading others in discipleship training, the job description should explain how the position educates or trains others about the religion. While this factor applies to teachers, it also covers anyone who plays a role in helping other believers understand the church’s faith and religious practices. This factor also covers those whose jobs include praying for and with others.

Measuring spiritual tasks can be challenging. Finding ways to measure spiritual tasks objectively can be even more challenging. But the job description should include objective standards for the position’s spiritual duties.

The job description should identify the worker’s supervisor and the religious skills and performance expected for the position. For example, perhaps the worker must post to social media at least 40 times per day, and at least half of those posts must include a religious value of the church. Or, for example, a director of pastoral care might include a specific number of home visits per week.

If the church values the worker’s religious duties, the church should also find continuing education to improve those religious duties. Nothing prevents the church from creating and hosting continuing religious education classes.

Most churches already require continuing religious education for their pastors. The challenge comes in finding appropriate continuing religious education for positions outside of pastors. For example, the church might require childcare workers to complete an annual course on how to relate the gospel to preschool children.

The bottom line: Minimum continuing education requirements should always be reflected in job descriptions.

Part 2 in this series takes a deeper look at the topic of job descriptions, creating a framework for analyzing specific positions and helping church leaders explore changes they can make to affect the outcome.

Churches must intentionally seek to understand and apply the ministerial exception. Since an employee’s duties are the core of the analysis, it helps to understand how the concepts may be applied in various church areas and departments.

Administrative support positions would likely not qualify for the ministerial exception. These positions usually do not have independent spiritual duties.

The person in charge of the benevolence ministry can usually qualify for the ministerial exception. Employees who meet and pray with applicants for assistance also usually qualify for the ministerial exception. Those employees with administrative or clerical support functions, however, rarely qualify for the ministerial exception.

The person in charge of children or youth ministries likely qualifies for the ministerial exception since they will be charged with the department’s overall spiritual direction.

Department leaders will be directly involved in disseminating a church’s religious messages and/or indirectly involved through the selection, creation, or approval of the department’s materials and programs.

Other workers may also qualify if they are actively involved in training children or youth in the faith.

If counselors must follow the church’s teachings and doctrine, they likely qualify for the ministerial exception.

Custodial caretakers would likely not qualify. These positions usually do not have independent spiritual duties.

The courts have yet to approve a position with only duties related to facilities management. One court approved a position that has facilities responsibilities in addition to ministerial responsibilities.

The courts have yet to approve a ministerial exception position in the finance area. It is unlikely a business administrator qualifies for the ministerial exception unless they have religious duties outside the business office.

There may be instances when a finance-related role encompasses duties triggering the ministerial exception. Suppose, for instance, the Pastor of Administration has religious duties, such as teaching a religious class or regularly serving in the pastoral care rotation as a part of the mandated duties. In this case, the position comes closer to qualifying for the ministerial exception.

Again, special circumstances likely must be present with finance-related positions. Any application of the ministerial exception in finance and administration areas should be carefully considered and may require the input of professional advice.

Interns may qualify for the ministerial exception if they have spiritual duties and responsibilities. If the intern’s primary goal is to observe others conducting ministry, he or she likely does not qualify for the exception. If the intern’s primary duties support a department, he or she likely does not qualify for the ministerial exception. But if the position has ministerial duties and responsibilities under the supervision of a minister, then the position might qualify for the ministerial exception. For example, the intern who is required to teach specific religious classes or participate in spiritual counseling or pastoral calls may qualify for the ministerial exception.

Digging deeperPart 3 in this series delves further into the topic of interns and internships.

Departments encompassing media and communications may present some of the most challenging worker classifications for the ministerial exception.

The test looks at the totality of the responsibilities, not only specific tasks. If a position requires the creation or review of media that communicates the church’s message, the position likely qualifies for the ministerial exception. If the position repeats a spiritual message created by others, then the position likely does not qualify.

For example, a position that only creates presentation materials to accompany the sermon likely does not qualify. Also, a position that only posts snippets from a sermon on social media likely does not qualify. But a position that selects the snippets from a sermon that best illustrates the church’s message and expounds on ways the information furthers the church’s message might qualify.

Music is considered a significant avenue through which a church’s spiritual goals are accomplished. The person in charge of the music ministry generally qualifies for the ministerial exception because of his or her significant influence over this crucial church programming area.

Individuals in charge of selecting music included in worship services will also likely qualify since music selection constitutes a spiritual message.

Worship leaders also likely qualify for the ministerial exception since they are influential in the spiritual direction of worshipers and the services they attend.

Vocalists and musicians may not qualify unless they have responsibilities related to content selection. Simply following the leading of a worship leader or choir director does not create a spiritual duty. Likewise, the administrative support positions associated with music and worship rarely qualify for the ministerial exception.

Every person possessing a ministerial credential and conducting typical ministry responsibilities will likely qualify for the ministerial exception. Even if a position does not have a formal minister credential, it will likely qualify if a credentialed minister typically fills it. Typical ministry responsibilities include preaching and teaching, creating spiritual messages, and the congregation’s pastoral care.

The church usually looks at the executive pastor as one of its spiritual leaders, frequently requiring a ministerial credential. But some executive pastors only have management or operational duties. If so, the church should carefully scrutinize the job description to include any actual or expected religious duties. Frequently, executive pastors act as a pastor to the staff, so their spiritual responsibilities lie toward the staff instead of the members. The job description should reflect that responsibility.

The person in charge of the church-operated school or daycare usually qualifies for the ministerial exception, provided they are responsible for the school’s spiritual direction and involved in selecting and/or approving the weaving of the spiritual teaching into the educational instruction.

Teachers with mandatory spiritual duties and responsibilities also usually qualify. Teachers who teach only secular subjects and have no responsibility to train the students spiritually rarely qualify.

School guidance counselors usually qualify if required or expected to include a spiritual component to their counseling duties. Administrative or clerical support positions rarely qualify for the ministerial exception, though.

The ministerial exception is available to every religious organization and likely applies to some positions in every church.

While this article describes some of the analysis, each church should engage a knowledgeable human resources professional or employment law attorney to correctly classify positions that do not easily fit within the exception.

Every church should engage an employment law attorney if any employee files a complaint with a state or federal employment regulatory agency.

If a DOL examiner asks to audit a church’s compliance with employment laws, the church should engage a competent employment law attorney to represent it.

The bottom line: The ministerial exception offers important legal protections to churches. Its well-developed history, starting with the First Amendment of the Constitution and continuing through numerous decisions made by the Supreme Court and federal courts, reinforces the doctrine’s validity and value. Churches do well to understand its unique history and its comprehensive scope, and then use it effectively for positions carrying spiritual functions and responsibilities.

Reviewing the ministerial exception’s applications is a church’s first line of defense in any complaint lodged by an employee or a regulatory agency. It should be done long before any sign of trouble ever arises.

Through careful assessments of positions, titles, and job descriptions, leaders can avoid common errors, limit legal vulnerabilities, and maximize protections their churches are rightly entitled to receive.

The author thanks CPA Elaine Sommerville for her useful comments and edits to this article.

Return to series home page.

While an often neglected tool, well-crafted job descriptions support the church’s mission, enhance ministry effectiveness and the effectiveness of those who do ministry, assist in legal and tax compliance areas, and so much more. Besides summarizing essential job responsibilities, the type of work performed, qualifications, and skills for a position, good job descriptions may include information about the church’s culture, mission, and benefits. In fact, a well-crafted job description functions a lot like DNA.

When God created the human race, he wrote detailed instructions into the body through DNA. DNA instructs each cell as it is formed about how it should function. Those instructions organize the formation, growth, and function of the body. These instructions tell one cell to form a fingernail while directing another cell to become a bone. A functioning human is created when all cells are working together by following the correct instructions.

The Bible describes the church as the Body of Christ, a “body” of individuals working together to accomplish God’s purposes. Just as God provided instructions in human DNA, job descriptions provide instructions to the Body of Christ.

In writing to the Corinthians, Paul desired the church to understand that it would take people with diverse gifts and talents organized well to perform different jobs accomplishing God’s purposes. He used the human body to illustrate how to organize a church, even naming a few distinct parts (1 Cor. 12:12-31).

Paul was addressing a church in Corinth that included people from all over the world (different races and cultures) and those with different occupations and economic statuses. This diverse group had never worked together for a common purpose. Yet Paul knew that if the church could work together like a human body, it could accomplish God’s purposes in Corinth.

Today’s church is no different. If the church hopes to accomplish God’s purposes, its members and staff must work together as one body. Job descriptions can be viewed as the DNA or the set of instructions guiding the church to accomplish God’s purposes through the church’s diverse staff and volunteers.

In Part 2 of my series on church employment, I will describe how job descriptions fit into church management, the benefits of using them, what they should contain, and the strategies to follow for effective implementation. There are few legal requirements for job descriptions, but following best practices to create and use job descriptions can help avoid legal problems.

Job descriptions are not just for staff. Volunteers represent the most significant workforce at many churches. Yet, most churches expect their volunteers to function without written instructions. This assumption reduces the effectiveness of the volunteers and increases the time church leaders spend managing them.

Written instructions are necessary to determine how staff members and volunteers fulfill their God-given roles in the local body of believers. Job descriptions describe their roles, responsibilities, and duties. Without these instructions, employees and volunteers may have little guidance about what they do and how they do it.

Without explicit instructions, it is easy for chaos to occur, potentially reducing the effectiveness of the local church. Job descriptions help bring order out of the chaos.

Human resource professionals agree that job descriptions are essential. They provide the roadmap for accomplishing a church’s mission. They also provide an effective tool for communicating expectations and responsibilities. The importance of this tool is why drafting job descriptions deserve church leaders’ time and attention.

There are many benefits of a well-crafted job description. Here are ten.

If everyone knows their role and works at accomplishing that role, the church will be more effective. This key element is also why drafting job descriptions cannot be delegated solely to an administrator or human resources department within a church. Pastors and senior leaders need to help shape the job descriptions, listing the gifts, skills, and talents needed to perform the job and the church’s expectations for the job.

For an example of how a person’s gifting and abilities are used in a job description, see the sample job description accompanying this article.

Many church leaders face situations where someone wants to be hired for a position because they need a job, regardless of their qualifications. Screening each candidate based on minimum job qualifications listed in a job description helps ensure that an unqualified person—including a friend or relative—is not hired.

If the church has a written job description and is disciplined enough to hire only qualified persons, hiring disasters can be avoided. A solid job description allows a church to honestly convey care to unqualified applicants while communicating their inadequacies for the job at hand.

Since the 1930s, federal, state, and local governments have enacted hundreds of laws that govern the relationship between employers and employees. No church can comply with all these laws on an ad hoc basis.

Failure to comply with employment laws may draw the unwanted attention of regulatory authorities, cost a church hundreds of thousands of dollars, bring unwanted publicity, cause members’ wrath, and jeopardize careers.

Job descriptions provide guardrails against serious law violations in making employment decisions. Compliance requires structure and discipline. Job descriptions can provide structure and give church leaders a tool to develop self-discipline in making employment decisions that avoid legal entanglements.

Legal entanglements can arise from a regulatory investigation or an employee lawsuit. For example, if done correctly, a job description can help avoid employee claims against the church for unpaid overtime.

Job descriptions may improve compliance by including compensation information for paid employees. They establish the facts to support a reasonable range of compensation for a position.

Including compensation data in job descriptions helps enforce good compensation practices. It forces the church to adopt a compensation philosophy to guide compensation decisions and encourages the church to research compensation for comparable positions in the market. This information allows the personnel and finance committees to make informed decisions when setting the budget and approving a reasonable range for each position.

Some churches consider compensation private and confidential to each employee and will reject this suggestion. Many churches wrongfully tell employees not to discuss their compensation with other employees. In today’s world of “transparency,” employees are growing more accustomed to compensation information that is public and readily shared among employees. For additional insights, see “Compensation” in the next section.

Caution. The United States Department of Labor suggests that some employers utilize compensation privacy policies to hide unlawful discrimination and strongly discourages this practice.

Church leaders should review an employee’s job description before making any critical personnel decisions. That is, leaders should make decisions consistent with the job description. The review process can help a church leader make more objective personnel decisions.

Consider these two specific benefits of a well-crafted job description:

Job descriptions set the baseline for the minimum performance expected for the position. Employee reviews should be structured around it, making the review more straightforward and more consistent.

The reviewer should go through the job description and compare the worker’s performance against each item listed as a job duty. The reviewer can document whether the employee’s performance equals or exceeds the church’s expectations for each task. If a worker fails to improve after receiving notices of performance deficiencies, it is easier to justify firing the individual.

Job descriptions make great communication tools. When a job description is clear about how to do tasks and responsibilities correctly, the church can often avoid unmet expectations between the worker and the church.

Job descriptions can also inform other staff members of the duties of each position and clarify responsibilities among all team members.

Regarding candidates for a position, a job description communicates the minimum qualifications and significant duties and responsibilities. It also acts like a brochure touting the benefits of working at the church while informing the candidates about the church’s work culture.

Some HR and church leaders view job descriptions as static. But nothing could be further from the truth. In 2020, the COVID-19 pandemic demonstrated why job descriptions must be fluid to allow the church to accomplish its goals. Accomplishing ministry objectives during the pandemic required forging new paths. The objectives did not change, but the methods changed. Job descriptions had to be changed to reflect new expectations and new skill requirements.

While 2020 brought monumental changes, it wasn’t an anomaly. Changes frequently happen in the church world. Church leaders should review job descriptions with the workers at least annually and possibly more frequently.

Employees should initiate changes to their job descriptions when supervisors instruct them to perform a task outside their listed duties. This accountability helps supervisors stay within their responsibilities. It also provides employees with an avenue of appeal if they object to the new responsibilities.

Church leaders rarely recognize the spiritual value of job descriptions. Yet, they can play an essential role in the spiritual development of the staff.

Job descriptions can help the worker understand the importance of their spiritual walk and how their spiritual walk may affect how they accomplish their job. Job descriptions may include the level of spiritual maturity expected from the worker and also detail the spiritual growth expected from the employees.

Job descriptions should help attract qualified candidates by listing clear expectations for the position and the pay scale for the position. Listing or referencing the potential fringe benefits may also attract qualified candidates (see below). Many candidates make their employment decisions based on the fringe benefits as much as the cash compensation arrangements.

This section lists potential components of a job description. Not all job descriptions include everything discussed in this section. Church leaders should make a thoughtful decision about each item, including the justification for why it is included or excluded.

The title communicates the role the position plays in the church. If the position involves spiritual duties and responsibilities, the title should reflect the position’s spiritual nature. Except for positions where the title signifies religious duties, the title should avoid internal religious terminology that may have little relevance outside of the church.

For additional insights on job titles that reflect spiritual responsibilities, see Part 1 of this series on the ministerial exception.

A job summary should contain a short description of the position and a brief description of the church, its mission, culture, and work environment. By communicating how this position helps the church accomplish its mission, this component can help convince candidates that this is a great place to work.

Minimum qualifications should be detailed for three categories.

First, the education or training expected from candidates should be detailed.

Second, relevant experience required for the job should be described. The description should include the specific type and length of experience the church believes will prepare an individual for this position.

Third, the job description should include both hard and soft skills. For example, the administrative assistant to the pastor must be proficient in Microsoft Office, a hard skill. But the position must also have a well-developed ability to protect the pastor from unnecessary interruptions in a diplomatic manner, which is a soft skill.

The minimum qualifications component for ministerial exception positions will detail the candidate’s religious educational requirements and religious practices.

Sometimes, mandatory qualifications may include any religious qualifications for certain positions. For example, the church may require that candidates be professing Christians and members of the employing church.

Detailing responsibilities and duties is the substance of the job description. It should concretely describe specific tasks to be accomplished by the position. For example, consider this possible task for a donor accounting clerk: “A donor accounting clerk is expected to enter all donations into the church management and accounting software.”

Refer to the sample job description for other specific examples of responsibilities and duties.

Job descriptions should indicate the physical duties required of the position. For example, the facilities person might have to lift at least 20 pounds and carry it more than 50 feet, or a clerical position might require the worker to sit for an extended period. By listing the physical requirements, job candidates become aware of the church’s expectations in this area.

This component helps the church comply with the federal Americans with Disabilities Act in two ways.

First, it sets the minimum essential physical requirements for the position. If a disabled person cannot perform the minimum essential physical requirements, even with accommodations, the church may avoid hiring that person for that position.

Second, it places applicants or employees with disabilities on notice that they must affirmatively inform the church of their limitations. The applicant or employee’s notice to the church places the responsibility on the church to discuss with the candidate or employee the potential ways the church can reasonably accommodate the applicant or employee’s disabilities in that position.

This component of a job description places the position within the hierarchy of the church. It should describe the department, its role in the church, and how it interacts with other church departments.

This component also must detail who supervises this position and name any positions that report to this position, whether paid or unpaid.

This component may also include the number of workers in the department to assist the worker in understanding the size of their team.

Classification for employment law and payroll tax purposes should be stated in a job description. This component will include whether this position is classified as a ministerial exception position, exempt from overtime, or nonexempt from overtime for wages and hour rules. It should also designate if the position requires the worker to be classified as a minister for federal payroll tax purposes.

Including a pay scale is critical to attracting qualified candidates, avoiding unlawful employment decisions, and fostering an atmosphere of transparency and fairness among employees.

This disclosure means that the church must review the pay scale at least annually to assure fairness to both the church and the employee.

As noted above, including compensation information in job descriptions helps enforce good compensation practices, including initial and ongoing research regarding pay rates for comparable positions inside and outside of churches. For an example, see the sample job description.

A brief statement about the church’s fringe benefit plans may also be helpful as a part of this component. Note, for example, the sample job description contains this sentence about benefits: “This position is eligible for generous fringe benefits as described in the Employee Handbook.”

Besides the formal requirements of a specific job, many churches have specific conditions that candidates and workers must meet to be employed.

For example, any job offer for positions working with children is conditioned on receiving an acceptable criminal background report. Finance department positions frequently require an excellent credit report. Sometimes the church’s offer of employment is conditioned on a negative drug test.

Some churches require all workers to agree with their statement of faith as a condition of applying for a position and continued employment.

Most churches have adopted a code of conduct that applies to all workers. Where allowed by law, the church may discipline workers for infractions of the conduct code unrelated to their work activities. For example, the code of conduct requires that employees not use illegal drugs. Violation of this requirement allows the church to impose discipline on an employee convicted of possession of an illegal substance.

If the church places conditions on applicants and workers, it should ask an employment attorney to review those conditions for compliance with applicable employment laws.

Church leaders reading this article may become overwhelmed by the work needed to implement job descriptions. This feeling can cause “leadership paralysis” because leaders cannot imagine drafting all of the job descriptions needed for both staff and volunteers in their churches.

This leadership paralysis reminds me of a question posed during my graduate business program: How does one eat an elephant? Answer: One bite at a time. Church leaders can overcome this paralysis by breaking the enormous task of drafting job descriptions into bite-sized tasks.

Here are some suggested steps to consider as you create your plan of action:

In my experience, church leaders should plan to complete the entire process in two to three years at most, depending on the church’s size. In this way, leaders can “eat the whole elephant.” This task is too important to delay implementation because of leadership paralysis.

Moving forward as a well-functioning body

Time spent developing and maintaining job descriptions pays enormous dividends, both in time management and spiritual development, and helps ensure compliance with tax and labor laws.

Most importantly, placing job descriptions into their proper role in church management is critical when it comes to accomplishing a church’s mission effectively.

So, instead of suffering through the confusion and resulting chaos, senior leaders can concentrate on moving the church forward in accomplishing God’s purposes as it functions as a well-coordinated body with each part understanding his or her role in accomplishing the church’s kingdom purposes.

The author thanks Rev. Jay Fleener and CPA Elaine Sommerville for their useful comments and edits to this article.

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