Hire Power

Looking to hire a janitor or a secretary? Maybe a senior minister? While some hires might involve a few more steps than others, it’s all pretty basic, right? You’ve got the résumé, two or three references, and you know what the job requires. You work with people all of the time, so you have a good, intuitive sense of who will fit in and who won’t. It ought to be a no-brainer.

Not quite. Many things can go wrong. There are specific steps you should take, and pitfalls you should avoid. We asked two experts in this area to give us some advice. Bob Podgorski is manager of extension services at Harper Community College in Palatine, Illinois. He is also coordinator of the St. Hubert Job and Networking Ministry, and he runs his own consulting practice in human resources, RPP Enterprises, both based in Hoffman Estates, Illinois. Christian Poland, a partner at Bryan Cave LLP in Chicago, is a lawyer who specializes in employment and non-profit organizations.

The first step is to develop a well-organized employment handbook. A handbook will save a lot of time and avoid many hiring problems. The handbook should contain a statement of the church’s faith, policies, and standards of conduct. “For instance, a conservative church would not want a minister who will promote gay marriage and abortion, while a liberal church will not want a minister who condemns gay marriage and abortion,” Poland says.

“You should also convey clearly the standards of conduct you expect,” he says. “I was recently involved in a case in which a candidate for a senior-level ministry position was living with his fiancée. They were soon to be married, but, after the offer was made and announced publicly, the situation was discovered and the church had to withdraw its offer on the basis that the person was violating the Biblical prohibition regarding sex outside of marriage and so was not fit to assume moral leadership within that church. The situation was difficult and embarrassing for both the church and the applicant.”

While much of this information can be made available through a church’s website, the applicant should receive an actual handbook at the start of the process. The handbook should contain basic policies, such as vacation time, as well as the statement of faith and expected conduct. “You can’t cover every possible sin, but you should list the main conduct parameters, especially those that might not be readily understood by an outsider,” Poland says. Topics like drug testing and harassment should also be discussed.

The second step is to prepare a detailed, accurate job description. “One of the pitfalls I’ve seen many times is that job descriptions are vague,” says Podgorski. Vagueness confuses both the interviewer and the applicant about job responsibilities. The job description should be very specific about job duties and the requirements in education, skills, and experience.

The third step is to get the word out about the job opening. Because many churches have limited budgets for advertising, Podgorski says administrators should think about sources that are free and easily accessible to candidates. These can include placement firms where job descriptions can be posted, as well as job and networking groups within the community. Notices on bulletin boards in coffee shops and grocery stores, especially near the church, also can help. Be sure to advertise the openings in the church bulletin and on the church’s bulletin boards.

A résumé is necessary, but also ask for a cover letter stating why the person wants the job, the salary requirements, and the aptitudes he thinks he can bring. The application process should include permission to do background checks appropriate for the position. For example, a credit check may be in order if the position involves financial responsibilities. A criminal record check is especially important if the person will supervise youth activities.

Before you start reviewing applicants, Podgorski advises to have a preliminary meeting with everyone who will be involved in the process. “Discuss the criteria for screening, and determine what each screener’s focus will be,” he says.

“Background checks are virtually a necessity in this day and age,” Poland says. “There are a series of requirements under the Fair Credit and Reporting Act that mandate certain notices and forms be filled out.” This statute provides rights and strictures for both employers and employees. States often have their own laws. “It’s very difficult for a church to do this level of research on its own,” Poland says. Hiring an agency to do these checks, however, is an efficient way to get this task accomplished, he adds.

Background checks are important, says Poland, but “they are no substitute for reference checks.” The applicant must sign release forms allowing their former employers to talk. Former employers might not want to say bad things about the applicant for fear of liability. On the other hand, an applicant who had a bad experience with a former employer, perhaps one involving a firing, might be able to offer mitigating circumstances or show how he was unfairly treated.

Be very cautious in asking applicants to participate in any kind of psychological or personality tests. Tests that are innocuous enough to avoid legal snags might not tell you things that you couldn’t find out otherwise. For instance, says Poland, a question that indicates a relatively neutral personality trait, such as introvert or extrovert (most people are a bit of both, depending upon the circumstances), reveals very little. On the other hand, having the applicant complete a “sentence completion” questionnaire, as is sometimes used in psychological testing, might be illegal or at least legally dangerous under the disability discrimination laws.

Because the hiring process is fairly complex and involves quite a bit of paperwork, Podgorski recommends keeping records of each applicant for at least one year.

“The interview process should be determined in advance: know who will conduct the interviews and what questions are pertinent in terms of the job description and culture within the office or other church environment,” Podgorski says. And if all of the foregoing considerations have been put into place, the interview process itself should be fairly short and pleasant. A lot of uncomfortable digging will be avoided, since the essential information is already out in the open.

An important dynamic of the offer letter, which can easily be overlooked, is what is called “at will employment,” Poland says. This means that the employee can either be fired or quit at any time. Under some circumstances, though, a new employee might be guaranteed a long tenure. For instance, a pastor with name power might not make the move unless he has that assurance, and the church thinks it’s worthwhile to meet his wishes.

But generally, confirming the “at will” status of the employment is important, Poland says. If the letter says, “We’re so pleased you’re joining us as senior pastor and we hope you’re with us until you retire,” it could create a huge liability for the church. If the pastor is involved in a scandal six months later and fired, he could try to claim breach of contract. The letter should include the provisions covered earlier, such as the understanding that the applicant has read and agrees to the basic criteria in the handbook, job description, and so on.

It’s also important to have an expiration date on the offer, Poland says, to avoid any misunderstanding. For instance, if an applicant resigns his current position, sells his house, and so on, then finds he doesn’t have the job he’s accepted, then the church that made the offer may be liable for all those costs, even if a contract has not been signed.

“The pastor should welcome the new employee,” Podgorski says. “He should review the payroll agreements (including overtime, vacation, and benefits), general policies, any dismissal or disciplinary parameters, references to the parish’s values, attendance at services if required, quality of work expected, and problem-solving in a team atmosphere.”

Podgorski points out a common shortcoming—not clearly indicating who will be the new employee’s supervisor. “The new employee is often frustrated by having too many bosses and inconsistent direction,” he says. The new employee should also clearly understand how he will be evaluated in terms of his performance.

In addition to reviewing job requirements, the orientation should include a tour of the church, pointing out where things are stored, and introducing him to the people he’ll work with. A meeting with the church directors and leaders may be in order, along with a history of the church and its mission. The new employee might shadow another employee for a short period of time.

The Fair Labor Standards Act sets minimum wage and overtime requirements. The determination of an employee’s exempt (salaried) or non-exempt (hourly) status, as defined in the Act, often is incorrect. “This represents a lot of risks for the church,” explains Poland. For example, an administrative assistant might be generous with her time, doing extra work on Saturday and Sunday. She may do this voluntarily, but if the employment relationship sours, then the employee can claim she’s been working 50 hours a week, and the church could be liable for back pay and other damages.

Sometimes pastors use people from their congregation to do various jobs and regard them as outside contractors. The church does not need to withhold taxes or offer benefits. The worker might not pay certain taxes, and might choose to establish her own health plan.

The problem with this arrangement is that it’s sometimes illegal. “Generally, if a person does all his work for you, such as a janitor who works 40 hours per week, then he must be regarded as an employee,” Poland says. “But if he is a landscaper not directly supervised by the church, is in control of his schedule and manner of work, and has other businesses he serves, then he is properly treated as an independent contractor.”

Leaders also need to be aware of potential problems when volunteer work is closely aligned to the church’s general administrative work, says Poland. For example, a volunteer who does accounting work 10 hours every week could one day say he wants compensation for all that time he put into the work.

While churches may have an exception to the laws prohibiting religious discrimination when hiring, they can get into trouble when they are inconsistent. An example of inconsistency is a Baptist church turning down a janitorial applicant because he is not of the same Baptist denomination of the church, but then hiring a Catholic receptionist.

Employers are generally prohibited from discriminating based on gender. But Poland says churches can be exempt in this regard by claiming religious freedom under the Constitution. Some churches contend, for example, that their religious criteria allow only males to be ministers.

Race discrimination is also prohibited, but Poland has not seen any recent cases in which a church has tried to justify the non-hiring of a minority applicant based on a religious belief that a minority applicant did not meet the church’s religious qualifications. Instead, Poland sees the issue arising in well-intentioned, but likely illegal, sensitivity to parishioners.

For example, a board of elders might find that a minority applicant satisfies fully the requirements of the job, but decide that its congregation is not ready for someone with a different ethnic background than what they are used to. Because the elders are not basing their rejection of the applicant on a failure to meet religious criteria, but rather the perceived ethnic preferences of their congregants, the elders’ discrimination based on ethnicity is likely illegal.

If the position at issue is that of a senior minister, the courts might not interfere (a “ministerial exception” has developed based on the courts’ recognition that they are ill-equipped to adjudicate ecclesiastical disputes and may violate the Constitution in doing so). But refusing to hire a receptionist because of her ethnicity is almost surely illegal.

Regarding the Americans With Disabilities Act, Poland says some churches fail to understand that the obligation is not just one of non-discrimination. Affirmative “reasonable accommodations” need to be made for employees with disabilities if those accommodations permit the employee to perform the job. Churches on tight budgets may initially reject a request for accommodation based on its cost, and in so doing violate the ADA.

Churches may also be surprised to learn that the ADA covers not just physical disabilities, but psychological impairments as well. ADA cases are frequently brought by employees claiming that their employers failed to accommodate their depression or anxiety disorders, with the typical accommodations sought being requests for time off for therapy or recovery or additional understanding in the workplace with respect to productivity. And, of course, if a mental illness merely makes the employee’s behavior a little odd but does not interfere with his ability to work productively and with others to get his job done, the church would likely violate the ADA in firing him.

Another challenging area of discrimination law is the application of state and local laws prohibiting discrimination on the basis of marital status and sexual orientation to employment decisions based on conduct the church deems to be immoral or religiously unacceptable. Homosexual conduct (as well as heterosexual conduct outside of marriage) is often deemed contrary to religiously based standards of conduct and some churches view divorce as unacceptable for its ministers and elders.

If the employment decision is in fact based on sincerely held religious beliefs about the impropriety of the conduct, the church will generally be within its rights to act on such a basis (although its defense may have to be based on constitutional religious freedom protections, which makes defense more complicated and expensive). But because public opinion often runs counter to such decisions, for public relations and legal reasons, the church must be careful to identify in advance the prohibited conduct, act consistently in enforcing its expectations regarding proper conduct, and then clearly articulate the religiously motivated reason for the decision.

Wheaton College recently received significant negative press, including Chicago Sun-Times front-page coverage, for its policy regarding divorced individuals, even though the professor at issue had voluntarily resigned in recognition of the College’s policy. The advice of a qualified lawyer early in the process can significantly reduce the risk of legal liability and negative publicity.

Most parishes miss ongoing employee development, says Podgorski. “You want a good employee to stay with you, and there’s no better way to do this than to have a program which will allow for advancement. This falls into the area of investing in your employees, making sure they have the opportunity to learn skills, to work with their peers by attending seminars and conferences. Then they’ll be able to bring back to the church fresh ideas and renewed enthusiasm.”