Pastor, Church & Law

§ 8.08.02

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Key Point 8-08.02. The Fair Labor Standards Act mandates that employers pay the minimum wage, and overtime compensation, to employees who are engaged in commerce or in the production of goods for commerce. There is no exception for religious organizations, but there are exceptions for certain classifications of employees.

Even when there is no enterprise coverage, employees are protected by the FLSA if their work regularly involves them in commerce between states ("interstate commerce"). The FLSA covers individual workers who are "engaged in commerce or in the production of goods for commerce."

Examples of employees who are involved in interstate commerce include those who produce goods (such as a secretary typing letters in an office) that will be sent out-of-state, regularly make telephone calls to persons located in other states, handle records of interstate transactions, travel to other states on their jobs, and do janitorial work in buildings where goods are produced for shipment outside the state.

The Department of Labor Field Operations Handbook describes individual coverage as follows:

Individual coverage depends on the nature of the particular employee's work. An employee is covered on an individual basis in each workweek in which he or she performs any work constituting engagement in interstate or foreign commerce. … As a practical matter [the Wage and Hour Division of the Department of Labor] does not assert individual coverage over an employee who is ordinarily engaged in employment which is not so covered but who may on isolated occasions spend an insubstantial amount of time performing individually covered work. However, this rule is not applicable in any workweek in which an employee spends a substantial amount of time doing individually covered work. If, in viewing the employment over a more extended period, it is apparent that the pattern of individual coverage is regular and recurrent, the employee involved is so covered in each workweek in which he does such work, regardless of whether the amount of time spent in this work is substantial or insubstantial.

It is not possible to establish precise guidelines to be followed in determining whether an employee who is not otherwise covered on an individual basis spends an insubstantial amount of time on isolated occasions in the performance of individually covered work. In view of the remedial purposes of the Act, the application of this rule is limited to circumstances where the time consumed by an employee in doing such covered work is obviously trivial, and the incidence of this covered work is so infrequent and outofpattern that it would be unrealistic to assert individual coverage solely on such grounds. This must be decided on the facts in a particular case.[30] Field Operations Handbook § 11a01.

The Department of Labor Field Operations Handbook addresses the individual coverage of several categories of employees under the FLSA. The only one relevant to church staff would be "clerical" employees. Section 11c00 of the Field Operations Handbook states:

Office and clerical employees who are engaged in the sending and receiving of out-of-state remittances, letters, bills, contracts, etc. or whose work involves the regular and recurrent use of the interstate mails, telephone, telegraph, and similar agencies of communication across state lines, are engaged in interstate commerce. … Those who not only transmit, but also prepare letters, bills, contracts, and other papers which are sent out of the state, are actually engaged in the production of goods for interstate commerce.

Regulations adopted by the Department of Labor state:

The Act makes no distinction as to the percentage, volume, or amount of activities of either the employee or the employer which constitute engaging in commerce or in the production of goods for commerce. However, an employee whose incommerce or production activities are isolated, sporadic, or occasional and involve only insubstantial amounts of goods will not be considered "engaged in commerce or in the production of goods for commerce" by virtue of that fact alone. The law is settled that every employee whose activities in commerce or in the production of goods for commerce, even though small in amount are regular and recurring, is considered "engaged in commerce or in the production of goods for commerce".[31] 29 C.F.R. 779.109.