Background
Most churches utilize volunteers to perform a variety of routine maintenance tasks, including cleaning, snow and ice removal, painting, roof repair, and grass cutting. If a church member is injured while performing such tasks, is the injury compensable under the state's workers’ compensation law? If so, what are the consequences to the church? These are important issues that were addressed by the Pennsylvania Supreme Court in a recent case.
An elderly man (Burt) and his wife began attending a small church. Because contributions were meager, church members performed most church maintenance. The church constitution designated the board of trustees as the persons responsible for "maintenance and protection of church building, grounds, furnishings and equipment." These duties were carried out on a voluntary basis. The single exception to the obligations of the board was that the church paid to have the grass cut on its 1.5-acre property. The trustees completed all other grounds maintenance, such as edging the lawn, planting flowers, and pruning the shrubs and trees.
Burt and his wife became members of the church, and a short time later Burt was appointed a church trustee. As a trustee, he performed various maintenance duties for the church such as painting the men's bathroom, changing light bulbs, vacuuming rugs, washing windows, cleaning restrooms, and other chores. He also began cutting grass on church property for $25 per week using a tractor and gasoline provided by the church.
On one occasion Burt took his hedge cutting shears with him when going to church to cut grass. When another trustee arrived at the church at 8:30 a.m., Burt was trimming the bushes beneath one of the church windows. The trustee waived at Burt, and then went into the church and began cleaning. Within a few minutes he heard a loud noise, saw a cloud of black smoke, and observed Burt emerge from the smoke engulfed in flames. Apparently, Burt had gathered up the shrub clippings, piled them on the grass in the far corner of the church driveway, and set fire to them using a can of gasoline.
The fire department and an ambulance were called, with the fire chief arriving moments later. Burt was conscious and said, "I think I screwed up." Burt died from severe burns a month later.
Burt's widow filed a workers’ compensation claim with the state, claiming that her husband died as a result of the work-related injuries he sustained while acting within the scope of his "employment" with the church. The church objected to the workers’ compensation claim. It asserted that Burt was a "volunteer" and that the money he received for cutting the grass was a "nominal honorarium." The church further noted that Burt was not cutting the grass when he sustained the fatal injury, but rather was performing volunteer services for the church by trimming the bushes. As a result, his efforts to trim the bushes (which led to his injury) were uncompensated trustee duties.
A workers’ compensation tribunal found that Burt's widow was entitled to workers’ compensation benefits since: (1) Burt was employed to cut the grass; (2) the church provided all of the materials and equipment necessary to carry out the task; (3) trimming the bushes was "incidental and necessary for Burt to accomplish his task of grass cutting"; and (4) Burt was paid on a weekly basis. The church appealed, arguing that Burt was either a volunteer or an independent contractor, and that the $25 paid to him was an honorarium rather than compensation.
A state appeals court ruled that Burt was an employee of the church because he received "valuable consideration" for his services. It relied on a previous case in which a church member fell from the roof of the church he attended while it was under construction. The victim had volunteered to help with the construction of the church and, in exchange, the value of his labor was to be applied toward the payment of his tithes. The court found that the victim was an employee and had received valuable consideration. Schreckengost v. Gospel Tabernacle, 149 A.2d 542 (Pa. Super. 1959). A dissenting judge concluded that Burt was "a volunteer, or possibly an independent contractor, but definitely not an employee." She noted that the church exercised little, if any, control over the grass-cutting activities, and that Burt alone decided when and how to cut the grass.
The supreme court's ruling
The state supreme court agreed to review the case. It began its opinion by noting that the state workers’ compensation law "defined the liability of an employer to pay damages for injuries received by an employee in the course of employment." The law defined an "employee" as "all persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer." The court noted that according to this definition a finding of employee status requires a consideration of three factors: (1) the presence of valuable consideration; (2) whether the employment was casual in character; and (3) whether the employment was in the regular course of employer's business. The court considered each factor individually.
Valuable consideration
The court acknowledged that Burt "performed numerous services for the church, among them were painting, interior maintenance, exterior maintenance, and grass cutting." Though his wife testified that he "was not compensated in this life for the majority of the tasks he performed," the court noted that he was paid by either an honorarium or an actual fee to cut the grass. The court observed: "Ordinarily, if services are performed for the payor directly, the presumption is that the amount received is for the service and it is not a gift or honorarium. The fact that the parties may have called the payment an honorarium is important, but not conclusive, for in light of all the circumstances, the term is often loosely or inaccurately used."
The court, in concluding that the $25 the church paid Burt each week was "valuable consideration" for services performed, observed:
The church treasurer testified that Burt was paid $25 per week "because that's what he agreed to cut it for." This negotiation for payment indicates that the weekly payment amount was not truly in the form of an honorarium but in the form of wages. An honorarium, in common understanding, means a voluntary reward for a service for which no remuneration could be collected by law. Thus, an honorarium is given to one who performed services for little or nothing and its tender is decided by the one for whom the services were performed without an obligation to give it. Here, the amount to be paid was clearly the subject of some discussion between the church and Burt. The fact that he received $25 every week for cutting the grass, even though the checks were issued approximately every four weeks, clearly constitutes wages as well as valuable consideration. The church supplied the mower and the gasoline so that he had little in the way of expenses to diminish the consideration he was receiving.
"Casual employment"
The court noted that the workers’ compensation law exempted "persons whose employment is casual in character." It defined "casual employment" as employment that is "occasional, irregular, or incidental as distinguished from regular and continuous." The court concluded that Burt's employment was not casual:
He was employed on a regular basis to cut the grass once per week during the growing season. He negotiated the wage and utilized the materials and equipment supplied by his employer, the church. The employment was not irregular, sporadic, or incidental and was, therefore, not casual in nature. He is more properly a seasonal employee rather than a casual employee. Further, he had been employed by the church for nearly three years to perform the same task, the same way, and during the same time period. Thus … he was an employee of the church for purposes of cutting the grass.
Business of the church
The court noted that the workers’ compensation law exempted "persons whose employment [is] not in the regular course of the business of the employer." The court defined this exception as follows:
While there may be a certain reluctance to characterize the activities of a church or temple in terms of the marketplace, the term business does not always connote a profit objective. The business of a religious institution is not strictly confined to charitable purposes, spiritual uplift, ministering to the needy, conducting religious services, and saving souls. Those courts that have considered what constitutes the business of the church, have concluded that, in order to attain the goals of the church or the temple, it is also necessary to construct and maintain a house of worship in which the religious work is conducted …. The maintenance and repair of church property and keeping the property in presentable condition is generally considered the usual course of business conducted on those premises by the trustees or other church management personnel. Therefore, we conclude that Burt was employed in the business of the church when he was cutting the grass.
However, the court stressed that Burt was not cutting the grass when he was injured. Rather, he was trimming bushes, a task that he was expected to perform gratuitously and for which he received no compensation. The appeals court had concluded that trimming bushes was "incidental" to Burt's employment, and therefore was indistinguishable from it. But the supreme court disagreed:
Burt was clearly not cutting the grass at the time of his injury. Although the testimony of the individuals on site that day unanimously agreed that the tractor was still in the shed at the time of the injury, the lower court found that trimming the bushes was incidental to the task of cutting the grass …. However, the proper question is not whether trimming the bushes was incidental to the grass-cutting task, but whether that activity was part of the employment arrangement. We hold that in this case it was not.
Burt was intimately involved in the work of the church. He wore several "hats" during the years of his church membership for he was not only a member, he also served as a trustee as well as a seasonal employee. The duties of a trustee included building and grounds maintenance. Several witnesses testified as to the various activities of the trustees in this regard, but they were unanimous in stating that the only paid position was for running the tractor to cut the grass. In fact [another trustee] testified that he, not Burt, usually completed the hand mowing in those areas that could not be reached with the tractor, and for which he received no compensation …. No trimming of bushes and overhanging tree limbs, no edging, picking up sticks, hand mowing, or garden work, all of which are necessary to maintain the grounds of the church, were ever included in the fee to cut the grass. The church paid an individual for running the tractor to cut the grass …. The trustees were responsible for all other tasks included in grounds maintenance …. Accordingly, we must find that Burt was acting as a trustee while trimming the bushes, rather than as an employee, and was not in the course of his employment when he was injured.
What this means to churches
Consider the following points:
1. Are we subject to workers’ compensation? Churches should know whether their church is subject to state workers’ compensation law. If you are not sure if your church is covered, consider one or more of the following steps: (1) ask a local attorney; (2) ask your church insurance agent; or (3) call the agency in your state that administers the workers’ compensation program.
2. The risk of being uninsured. Employers that are covered by workers’ compensation law generally pay insurance premiums to cover the cost of benefits paid to injured workers. However, many churches have failed to obtain workers’ compensation insurance, often because of a false assumption that they are "exempt" from workers’ compensation law. This can expose a church to significant liability, for two reasons. First, an injured employee may be able to sue the church for damages in a civil lawsuit. Unlike workers’ compensation benefits, there is no limit on the amount a court can award in a civil lawsuit. Second, the damages a court awards in a civil lawsuit will not be covered under most church insurance policies. Often, general liability policies exclude employee injuries on the assumption that they are covered under a workers’ compensation policy. This can create a dangerous gap in coverage.
3. Do we have workers’ compensation insurance? If your church is subject to workers’ compensation law, then be sure you have obtained workers’ compensation insurance. If in doubt, ask your church insurance agent.
4. Employees. Workers’ compensation laws only cover injuries and illnesses suffered by employees on the job, but the term employee is defined very broadly to further the objectives of workers’ compensation laws. As a result, the fact that a church treats a worker as self-employed for income tax reporting purposes does not mean that the worker is self-employed for purposes of workers’ compensation.
However, as the case addressed in this article illustrates, workers’ compensation is available only to work-related injuries to employees. The court concluded that Burt's injuries occurred while he was performing duties as a trustee, and not as a compensated employee. Brookhaven Baptist Church v. Workers Compensation Appeal Board, 2006 WL 3798180 (Pa. 2006)
