Termination of Employees §8.22
Termination
Overview
In most states, employees who are hired for an indefinite period are considered "at will" employees. This means that the employment relationship may be terminated at will by either the employer or employee, with or without cause, and with or without notice. The courts and state legislatures have created a number of exceptions to the at will employment rule. These exceptions limit the right of an employer to terminate an at will employee. Employees who are hired for a specific term are not at will employees, and they may be terminated only if the employer has "good cause."
The dismissal of an employee can be a traumatic experience. When an employee is dismissed who has been employed by the church for many years, there often is a desire by other employees and the congregation itself for information about the dismissal. After all, what could this trusted and faithful employee have done to warrant such harsh treatment? Often, church leaders resist sharing any of the details, fearing they will be sued if they do. This concern is understandable. However, problems can occur when nothing is disclosed to the staff or membership. Church leaders under these circumstances often are accused of acting arbitrarily, and there is a demand for an explanation. Refusal to respond to such demands may place the church leadership in an even worse light.
There is a possible answer to this dilemma. Many states recognize the concept of "qualified privilege." This means that statements made to others concerning a matter of common interest cannot be defamatory unless made with malice. Statements are made with malice if they are made with a knowledge that they are false, or with a reckless disregard as to their truth or falsity.
In the church context, this privilege protects statements made by members to other members concerning matters of common interest. Such communications cannot be defamatory unless malice is proven. Church leaders who decide to disclose why an employee was dismissed can reduce the legal risk to the church and themselves by following a few basic precautions:
• Only share information with active voting members of the church—at a membership meeting or by letter. The qualified privilege does not apply if the communication is made to non-members.
• Adopt procedures that will confirm that no non-member received the information.
• Limit your remarks to factual information and do not express opinions.
• Prepare a written statement that will be shared with members, and have it reviewed in advance by an attorney.
Key Point 8-22. In most states, employees who are hired for an indefinite period are considered "at will" employees. This means that the employment relationship may be terminated at will by either the employer or employee, with or without cause, and with or without notice. The courts and state legislatures have created a number of exceptions to the at will employment rule. These exceptions limit the right of an employer to terminate an at will employee. Employees who are hired for a specific term are not at will employees, and they may be terminated only if the employer has "good cause."
A. The "At Will" Employment Rule, and Its Exceptions
In most states an employee hired for an indefinite term may be discharged by the employer at any time with or without cause.[152] See generally L. LARSON, UNJUST DISMISSAL (2007 supplement); LARSON'S EMPLOYMENT DISCRIMINATION (2007 supplement); W. HOLLOWAY AND M. LEECH, EMPLOYMENT TERMINATION (2nd ed. 1993). This principle is referred to as the "at will" employment rule. The idea is that either the employer or the employee has the right to terminate the employment relationship "at will." This rule only applies to employees hired for indefinite terms of employment. The "at will" employment rule is subject to a number of exceptions in each state, including some or all of the following:
Tip. A church should avoid dismissing an employee who is a member of a protected class under a federal or state civil rights law unless there is a legitimate, nondiscriminatory basis for the dismissal. For example, a church should avoid dismissing a 60-year-old employee unless there is clear and convincing evidence of incompetency, incapacity, insubordination, or some other nondiscriminatory basis for dismissal.
Tip. Dismissed employees often point to "performance reviews" as proof that their termination was discriminatory. To illustrate, assume that a church conducts annual "performance reviews" for all employees, and that a disabled employee consistently received excellent or above average scores. Within a few months of such a review, the employee is dismissed because of the "poor quality" of his work. The employee sues the church, claiming that it discriminated against him on the basis of his disability. The church insists that the disability had nothing to do with its decision, but the employee points to the annual performance reviews as proof that the church's alleged basis for termination was a "pretext."
- Discrimination based on race, color, national origin, sex, or religion. Title VII of the Civil Rights Act of 1964 is a federal law that makes it unlawful for an employer that is engaged in "commerce" and that has at least 15 employees to discharge any individual on the basis of race, color, national origin, religion, or sex (including both pregnancy and sexual harassment). The Act does permit religious organizations to discharge or otherwise discriminate against employees on the basis of religion. Many states have their own civil rights laws that ban this type of employment discrimination, and they are more likely to apply to churches since there is no "commerce" requirement and the minimum number of employees often is fewer than 15.
- Discrimination based on age. The federal Age Discrimination in Employment Act makes it unlawful for an employer that is engaged in "commerce" and that has at least 20 employees to discharge any individual on the basis of age (if the person is at least 40 years of age). Many states have their own civil rights laws that ban this type of employment discrimination, and they are more likely to apply to churches since there is no "commerce" requirement and the minimum number of employees often is fewer than 20.
- Discrimination based on disability. The federal Americans with Disabilities Act is a federal law that makes it unlawful for an employer that is engaged in "commerce" and that has at least 15 employees to discharge any individual on the basis of disability—if the employee is able to perform the essential functions of the job with or without reasonable accommodation by the employer (so long as the accommodation would not impose an undue hardship on the employer). The Act does permit religious organizations to discriminate against employees on the basis of religion. Many states have their own civil rights laws that ban this type of employment discrimination, and they are more likely to apply to churches since there is no "commerce" requirement and the minimum number of employees often is fewer than 15.
- Discrimination based on military status. The Uniformed Services Employment and Reemployment Rights Act specifies that a person "who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer" on the basis of his or her military service or application for service. The law applies to all employers, including churches, whether or not they are engaged in interstate commerce and regardless of the number of their employees. The law defines "service in the uniformed services" to include "active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty." The law only protects employees whose military absences from an employer have not exceeded five years, with certain exceptions. An employee's reinstatement rights depend upon the time he or she is away on military leave.
- Discrimination based on sexual orientation. A number of states have enacted laws prohibiting employers from discriminating against employees and applicants for employment on the basis of their sexual orientation and gender identity. Most of these laws exempt religious organizations. Even without such an exemption, it is unlikely that most courts would apply such a law to the relationship between a church and its ministers.
- Dismissal based on polygraph testing. The federal Employee Polygraph Protection Act prohibits any employer engaged in commerce, regardless of the number of employees, from requiring, requesting, suggesting, or causing any employee or applicant for employment to take a polygraph exam. This law applies to all employers, including religious organizations, engaged in an activity affecting interstate commerce. The law contains a few exceptions that ordinarily will not apply to churches. For example, employers can ask an employee to take a polygraph exam if an incident of theft or embezzlement has occurred and there is evidence pointing to the employee as the perpetrator. Employers relying on this exception must comply with several requirements. The assistance of legal counsel is essential.
- State laws regulating off-hours conduct of employees. Many states have enacted laws prohibiting employers from disciplining employees for using lawful products (such as tobacco or alcohol) off of the employer's premises during non-working hours. Some of these laws exempt religious organizations.
- Violation of public policy. A number of courts have protected "at will" employees by permitting them to sue their former employer if their dismissal violated "public policy."[153] See generally Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only in Good Faith, 93 HARV. L. REV. 1816 (1980). To illustrate, employees terminated for refusing to commit perjury or some other crime, for performing jury service, or for filing a workers compensation claim against their employer have been allowed to sue their employer for wrongful discharge. The "public policy" exception to the employer's right to discharge employees hired for indefinite terms has been narrowly construed, and is rejected by some courts. One court rejected the argument that the "national policy" against religious discrimination is sufficiently compelling to create an exception to the "at will" doctrine in the context of religious employers.[154] Amos v. Corporation of Presiding Bishop, 594 F. Supp. 791 (D. Utah 1984), rev'd on other grounds, 483 U.S. 327 (1987).
- Employment handbook exception. Some courts have restricted an employer's right to fire "at will" employees as a result of binding assurances and commitments contained in an employee manual or handbook.[155] See, e.g., Guz v. Bechtel National, 8 P.3d 1089 (Cal. 2000); Gaudio v. Griffin Health Services Corporation, 733 A.2d 197 (Conn. 1999); Orr v. Westminster Village North, 689 N.E.2d 712 (Ind. 1997); Lytle v. Malady, 579 N.W.2d 906 (Mich. 1998); Tenet Healthcare Limited v. Cooper, 960 S.W.2d 386 (Tex. App. 1998). This view has been rejected by other courts.[156] See, e.g., Chin v. American Telephone and Telegraph Co., 410 N.Y.S.2d 737 (1978); Rosby v. General Baptist State Convention of North Carolina, Inc., 370 S.E.2d 605 (N.C. App. 1988); Reynolds Manufacturing Co. v. Mendoza, 644 S.W.2d 536 (Tex. App. 1982). Many courts have upheld the validity of "disclaimers" appearing in employment contracts and handbooks, which purport to disclaim any contractual meaning or intent.
- Invasion of privacy. Some courts have allowed dismissed employees to sue their former employer if their dismissal was based on an "invasion of privacy" by the employer. Examples include dismissals based on evidence obtained through illegal telephone wiretapping, or through unauthorized access to the employee's personal property.[157] See, e.g., Fischer v. Mt. Olive Lutheran Church, Inc., 207 F.Supp.2d 914 (W.D. Wis. 2002).
- "True cause" letters. Although not directly limiting an employer's right to discharge an employee engaged for an indefinite term, some states have enacted laws requiring employers to provide discharged employees with a letter setting forth the "true cause" of the discharge.[158] See, e.g., MO. REV. STAT. § 290.140. Ordinarily, however, the employer is not obligated to provide such a letter unless it receives a written request from a discharged employee.
- Fraud. A few courts have permitted dismissed employees to sue their former employers on the basis of fraudulent representations. For example, an employee who was assured by his employer that his position would be "permanent" was fired. While the court concluded that an employee hired on a "permanent" basis is in fact an "at will" employee who ordinarily can be terminated at any time with or without cause, the employee could sue his former employer on the basis of the fraudulent representation.[159] Hamlen v. Fairchilds Industries, Inc., 413 So.2d 800 (Fla. App. 1982); Silver v. Mohasco Corp., 462 N.Y.S.2d 917 (1983).
- Statutory elimination of the "at will" rule. At least one state (Montana) has enacted a statute prohibiting employers from dismissing employees except for "good cause."[160] The Montana Wrongful Discharge From Employment Act (1987). Such a statute in effect repeals the "at will" rule.
- Covenant of fair dealing. A few courts have ruled that a "covenant of fair dealing" is implied in every contract of employment. A dismissed employee can sue a former employer for violating this covenant.
- Union activities. The National Labor Relations Act makes it unlawful for an employer engaged in a business or activity "affecting commerce" to discharge an employee on the basis of union activities.[161] See § 8-09, § E, supra, for a discussion of the meaning of the term affecting commerce.

B. The Dismissal of Employees Hired for a Definite Term
The courts generally hold that employees hired for a definite term may not be discharged before the end of their term of employment unless good cause exists. An employer need not demonstrate good cause to justify a failure to rehire an employee upon the expiration of a definite term of employment.
Good cause may include serious illness; abandonment of employment; breach of contract; refusal to perform assigned duties; incompetency; neglect of duties; misconduct; insubordination; intoxication; intemperance; doctrinal deviation; or conduct contrary to the church's moral teachings.
Tip. Many churches reserve the right to dismiss an employee for conduct in violation of the church's moral teachings. Unfortunately, this can lead to confusion since dismissed employees often insist that their behavior did not violate such teachings. One way to reduce the likelihood of such disputes is to state (in the church's employee handbook, or in some other appropriate document) that the church board is the sole arbiter of what behavior violates the church's moral teachings.
An employee who is discharged without good cause before the end of a specified term of employment generally is entitled to recover as damages the salary and other benefits agreed upon for the remainder of the employment term less the amount the employee earned, or with reasonable diligence might have earned, from other employment of the same or a similar nature during the period.
Key Point. The civil courts generally will not interfere with a church's decision to terminate a minister's services. This subject is covered fully in chapter 2.
C. Communicating with Other Employees and the Congregation
The dismissal of an employee can be a traumatic experience. When an employee is dismissed who has been employed by the church for many years, there often is a desire by other employees and the congregation itself for information about the dismissal. After all, what could this trusted and faithful employee have done to warrant such harsh treatment? Often, church leaders resist sharing any of the details, fearing they will be sued if they do. This concern is understandable. However, problems can occur when nothing is disclosed to the staff or membership. Church leaders under these circumstances often are accused of acting arbitrarily, and there is a demand for an explanation. Refusal to respond to such demands may place the church leadership in an even worse light.
There is a possible answer to this dilemma. Many states recognize the concept of "qualified privilege." This means that statements made to others concerning a matter of common interest cannot be defamatory unless made with malice. Statements are made with malice if they are made with a knowledge that they are false, or with a reckless disregard as to their truth or falsity. In the church context, this privilege protects statements made by members to other members concerning matters of common interest. Such communications cannot be defamatory unless malice is proven. Church leaders who decide to disclose why an employee was dismissed can reduce the legal risk to the church and themselves by following a few basic precautions:
- Only share information with active voting members of the church—at a membership meeting or by letter. The qualified privilege does not apply if the communication is made to non-members.
- Adopt procedures that will confirm that no non-member received the information.
- Limit your remarks to factual information and do not express opinions.
- Prepare a written statement that will be shared with members, and have it reviewed in advance by an attorney.
Tip. In some cases, it is helpful to obtain a signed confession from an employee who is being terminated because of misconduct. The confession should state that it can be read to the staff and congregation.
Case studies
- A Massachusetts court ruled that a pastor could sue his denomination for publishing a statement informing other pastors and the media that he had been suspended from all pastoral duties because of "formal charges of sexual misconduct."[162] Hiles v. Episcopal Diocese, 744 N.E.2d 1116 (Mass. App. 2001). However, the court acknowledged that the denomination's public statements concerning the pastor's sexual misconduct may well have been protected by a conditional privilege. It stated the general rule as follows: "An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know. … The common interest of members of religious associations is recognized as sufficient to support a privilege for communications among themselves concerning the qualifications of the officers and members and their participation in the activities of the society." In summary, the First Amendment did not prevent the pastor from suing his denomination for libel or slander as a result of public statements concerning his alleged sexual misconduct, but the denomination might be exempted from liability on the basis of the common interest privilege.
- An Ohio court ruled that a former teacher at a church-operated school could not sue school officials for defamation since the allegedly defamatory statements made by the school officials concerned a matter of "common interest" and accordingly were privileged. The teacher was convicted of contributing to the delinquency of a minor for providing alcohol to one of his students. He advised school officials of his conviction, and was permitted to remain on the faculty both as a teacher and yearbook adviser. A few years later, his teaching contract was not renewed. A priest was hired to replace him as teacher and yearbook adviser. When the former teacher continued to associate with student members of the yearbook staff, two priests (who served as administrators at the school) contacted the parents of two of these students and informed them that the former teacher had been convicted of "corrupting a minor," implied that he was a homosexual, and recommended that they not permit their sons to associate with such a person. The former teacher learned of these statements, and sued the priests for defamation. A state appeals court ruled that the statements made by the priests were not defamatory since they were protected by a qualified privilege. It observed: "As a matter of public policy, educators and parents share a common interest in the training, morality and well-being of the children in their care. … [S]tatements made by a teacher and a principal which relate to a former teacher's … commission of acts which are potentially harmful to the well-being of a student, when made to the parents of the student involved, can be motivated by a common interest in the education or safety of that student."[163] McCartney v. Oblates of St. Francis de Sales, 609 N.E.2d 216 (Ohio App. 1992).
- A Texas court ruled that a church was not liable for defaming a former secretary as a result of statements made to church members claiming that she had misappropriated church funds. A church operated a private school. Its minister of education, who also served as principal of the school, resigned after admitting that he misappropriated church funds, destroyed church records, forged signatures, and committed other criminal acts. He later pleaded guilty to criminal charges for his admitted conduct in misappropriating school funds. He informed the church that a woman who served as a secretary at the school participated in the misappropriations. After an audit confirmed the principal's accusations the church asked the secretary to resign. The church published (1) a letter to its members claiming that the secretary misappropriated school funds; (2) a letter to the school children's parents claiming that the secretary deposited tuition funds into the wrong accounts and later used the funds for her personal benefit; destroyed checks, financial records, and bank records; forged signatures; covered up these indiscretions; received seventy dollars extra per pay period for nearly two years as well as other undocumented "reimbursements"; and (3) a report to the church members reporting the secretary's resignation and claiming that she deposited tuition funds into the wrong account and then used the funds to support programs and individuals outside of and over the budget adopted by the congregation. At a meeting of church members, church officials orally accused the secretary of depositing tuition funds into the wrong account and then using the funds for her personal benefit or for other people or projects as she and the principal saw fit; destroying checks, bank records, and financial records; forging signatures; and covering up many of these indiscretions. The secretary later sued the church and the individual members of the church audit committee, claiming that the church's actions defamed her. A state appeals court rejected all of the secretary's claims. It concluded that words that otherwise might be defamatory may be "legally excused" by a qualified privilege. It observed: "All of the members of [the church] have a common interest in the church's use of their financial contributions to the church; thus, the members have a common interest in information about those funds. The members who made the statements in question reasonably believed that the misappropriation took place and that the board, the members, and the parents shared a common interest in the use of the funds and information about those funds. [The church] reasonably believed that these people were entitled to know of the misappropriation. [It] had a duty to perform for the board, the members, and the parents. [It] made the communications without actual malice. [The principal] confessed his and [the secretary's] involvement, and [he] later pleaded guilty to criminal charges. [The church's] audit confirmed all of [his] statements. [The secretary] never swore under oath in an affidavit in opposition to summary judgment that the statements were lies. [She] kept the misappropriated funds in a shoe box in her closet and returned the funds when accused. [The principal] testified that the statements were true. [The secretary] admits receiving personal benefit from the misappropriation of funds. [She] admits she destroyed records. [The church] neither entertained serious doubts as to the truth of the statements nor made these statements with a high degree of awareness of their probable falsity. The communications appeared accurate, [the church] reasonably believed [the principal], and church members and parents who received information had an interest in the funds and information about the funds." [164] Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85 (Tex. App. 1997).
Table of Contents
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1Definitions and Status
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§ 1.01Distinctions Between the Terms Pastor, Clergy, Minister
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§ 1.02Definition of the Terms Pastor, Clergy, Minister — In General
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§ 1.03Status—Employee or Self Employed
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§ 1.03.01Social Security
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§ 1.03.02Income Taxes
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§ 1.03.03Retirement Plans
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§ 1.03.04Legal Liability
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§ 1.03.05Miscellaneous Federal and State Statutes
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§ 1.04Status—Ordained, Commissioned, or Licensed
2The Pastor-Church Relationship
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§ 2.01Initiating the Relationship—In General
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§ 2.01.01Congregational Churches
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§ 2.01.02Hierarchical Churches
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§ 2.01.03Compliance with a Church's Governing Instrument in the Selection of a Minister
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§ 2.01.04Civil Court Review of Clergy Selection Disputes—the General Rule of Non-Intervention
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§ 2.01.05Civil Court Review of Clergy Selection Disputes—Limited Exceptions to the General Rule
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§ 2.01.06Negligent Selection
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§ 2.02The Contract
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§ 2.03Compensation
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§ 2.04Termination
3Authority, Rights, and Privileges
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§ 3.01General Scope of a Minister's Authority
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§ 3.02Officer of the Church Corporation
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§ 3.03Property Matters
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§ 3.04Performance of Marriage Ceremonies
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§ 3.05Exemption from Military Duty
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§ 3.06Exemption From Jury Duty
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§ 3.07The Clergy-Penitent Privilege—In General
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§ 3.07.01A "Communication"
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§ 3.07.02Made in Confidence
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§ 3.07.03To a Minister
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§ 3.07.04Acting in a Professional Capacity as a Spiritual Adviser
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§ 3.07.05In the Course of Discipline
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§ 3.08The Clergy-Penitent Privilege—Miscellaneous Issues
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§ 3.08.01Clergy-Parishioner Relationship
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§ 3.08.02Marriage Counseling
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§ 3.08.03Who May Assert the Privilege
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§ 3.08.04When to Assert the Privilege
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§ 3.08.05Waiver of the Privilege
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§ 3.08.06The Privilege in Federal Courts
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§ 3.08.07Constitutionality of the Privilege
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§ 3.08.08Child Abuse Reporting
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§ 3.08.09Confidentiality
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§ 3.08.10Disclosure to Civil Authorities
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§ 3.08.11Church Records
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§ 3.08.12Death of the Counselee
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§ 3.09Visiting Privileges at Penal Institutions
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§ 3.10Immigration of Alien Ministers, Religious Vocations, and Religious Occupations
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§ 3.11Miscellaneous Benefits
4Liabilities, Limitations, and Restrictions
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§ 4.01Negligence
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§ 4.02Defamation—In General
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§ 4.02.01Pastors Who Are Sued for Making Defamatory Statements
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§ 4.02.02Pastors Who Are Victims of Defamation
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§ 4.02.03Defenses
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§ 4.03Undue Influence
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§ 4.04Invasion of Privacy
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§ 4.05Clergy Malpractice
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§ 4.06Contract Liability
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§ 4.07Securities Law Violations
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§ 4.08Failure to Report Child Abuse
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§ 4.09Diversion of Church Funds
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§ 4.10State Regulation of Psychologists and Counselors
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§ 4.11Sexual Misconduct
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§ 4.11.01Theories of Liability
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§ 4.11.02Defenses to Liability
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5Definitions
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§ 5.01Tax Legislation—Federal
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§ 5.01.01Churches
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§ 5.01.02Mail Order Churches
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§ 5.01.03Other Religious Organizations
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§ 5.01.04Tax Legislation—State
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§ 5.02Zoning Law
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§ 5.02.01Churches
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§ 5.02.02Accessory Uses
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6Organization and Administration
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§ 6.01Unincorporated Associations
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§ 6.01.01Characteristics
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§ 6.01.02Personal Liability of Members
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§ 6.01.03Creation and Administration
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§ 6.02Corporations
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§ 6.02.01The Incorporation Process
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§ 6.02.02Charters, Constitutions, Bylaws, and Resolutions
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§ 6.03Church Records
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§ 6.03.01Inspection
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§ 6.03.02“Accountings” of Church Funds
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§ 6.03.03Public Inspection of Tax-Exemption Applications
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§ 6.03.04Government Inspection of Donor and Membership Lists
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§ 6.03.05The Church Audit Procedures Act
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§ 6.03.06Who Owns a Church’s Accounting Records?
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§ 6.04Reporting Requirements
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§ 6.04.01State Law
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§ 6.04.02Federal Law
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§ 6.05Church Names
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§ 6.06Officers, Directors, and Trustees—In General
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§ 6.06.01Election or Appointment
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§ 6.06.02Authority
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§ 6.06.03Meetings
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§ 6.06.04Removal
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§ 6.07Officers, Directors, and Trustees—Personal Liability
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§ 6.07.01Tort Liability
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§ 6.07.02Contract Liability
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§ 6.07.03Breach of the Fiduciary Duty of Care
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§ 6.07.04Breach of the Fiduciary Duty of Loyalty
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§ 6.07.05Violation of Trust Terms
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§ 6.07.06Securities Law
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§ 6.07.07Wrongful Discharge of an Employee
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§ 6.07.08Willful Failure to Withhold Taxes
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§ 6.07.09Exceeding the Authority of the Board
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§ 6.07.10Loans to Directors
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§ 6.08Immunity Statutes
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§ 6.08.01Directors and Officers Insurance
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§ 6.09Members—In General
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§ 6.09.01Selection and Qualifications
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§ 6.09.02Authority
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§ 6.10Members—Discipline and Dismissal
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§ 6.10.01Judicial Nonintervention
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§ 6.10.02“Marginal” Civil Court Review
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§ 6.10.03Preconditions to Civil Court Review
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§ 6.10.04Remedies for Improper Discipline or Dismissal
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§ 6.11Members—Personal Liability
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§ 6.12Meetings of Members
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§ 6.12.01Procedural Requirements
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§ 6.12.02Minutes
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§ 6.12.03Parliamentary Procedure
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§ 6.12.04Effect of Procedural Irregularities
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§ 6.12.05Judicial Supervision of Church Elections
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§ 6.12.06Who May Attend
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§ 6.13Powers of a Local Church
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§ 6.14Merger and Consolidation
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§ 6.15Dissolution
7Church Property
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§ 7.01Church Property Disputes—In General
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§ 7.02Church Property Disputes—Supreme Court Rulings
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§ 7.03State and Lower Federal Court Rulings
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§ 7.04Church Property Disputes—Dispute Resolution Procedures
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§ 7.05Transferring Church Property
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§ 7.06Zoning Law
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§ 7.07Restricting Certain Activities Near Church Property
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§ 7.08Building Codes
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§ 7.08.01Lead Paint on Church Property
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§ 7.09Nuisance
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§ 7.10Landmarking
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§ 7.11Eminent Domain
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§ 7.12Defacing Church Property
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§ 7.13Restrictive Covenants
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§ 7.14Reversion of Church Property to the Prior Owner
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§ 7.15Materialmen’s Liens
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§ 7.16Religious Discrimination in the Sale or Rental of Church Property
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§ 7.17Removing Disruptive Individuals
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§ 7.18Adverse Possession
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§ 7.19Accounting for Depreciation
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§ 7.20Premises Liability
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§ 7.20.01Liability Based on Status as Invitee, Licensee, or Trespasser
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§ 7.20.02Defenses to Premises Liability
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§ 7.20.03Use of Church Property by Outside Groups
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§ 7.20.04Assaults on Church Property
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§ 7.20.05Skate Ramps
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§ 7.20.06Sound Rooms
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§ 7.21Embezzlement
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§ 7.22Places of Public Accommodation
8Employment Law
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§ 8.01Introduction: Selection of Employees
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§ 8.02New Hire Reporting
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§ 8.03Employment Eligibility Verification
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§ 8.04Immigration
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§ 8.05Negligent Selection
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§ 8.06Introduction: Compensation and Benefits
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§ 8.07Workers Compensation
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§ 8.08Fair Labor Standards Act
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§ 8.08.01Enterprises
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§ 8.08.02Individual Coverage
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§ 8.08.03Federal Court Rulings
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§ 8.08.04Department of Labor Opinion Letters
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§ 8.08.05Exemptions
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§ 8.08.06Ministers
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§ 8.08.07State Laws
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§ 8.08.08Case Studies
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§ 8.09Introduction to Federal Employment and Civil Rights Laws—The “Commerce” Requirement
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§ 8.09.01Counting Employees
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§ 8.10The “Ministerial Exception” under State and Federal Employment Laws
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§ 8.11Procedure for Establishing a Discrimination Claim
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§ 8.12Title VII of the Civil Rights Act of 1964
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§ 8.12.01Application to Religious Organizations
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§ 8.12.02Application to Religious Educational Institutions
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§ 8.12.03Religion as a "Bona Fide Occupational Qualification"
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§ 8.12.04Discrimination Based on Religion or Morals
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§ 8.12.05Sexual Harassment
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§ 8.12.06The Catholic Bishop Case
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§ 8.12.07Failure to Accommodate Employees’ Religious Practices
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§ 8.12.08The Religious Freedom Restoration Act
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§ 8.12.09The Civil Rights Act of 1991
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§ 8.13The Age Discrimination in Employment Act
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§ 8.14The Americans with Disabilities Act
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§ 8.14.01Discrimination in Employment
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§ 8.14.02Discrimination in Public Accommodations
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§ 8.15Family and Medical Leave Act
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§ 8.16Employer “Retaliation” Against Victims of Discrimination
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§ 8.17Discrimination Based on Military Status
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§ 8.18Employee Polygraph Protection Act
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§ 8.19Occupational Safety and Health Act
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§ 8.20Display of Posters
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§ 8.21Discrimination under State Laws
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§ 8.22Termination of Employees
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§ 8.22.01Severance Agreements
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§ 8.23National Labor Relations Act
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§ 8.24Reference Letters
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§ 8.25Employee Evaluations
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§ 8.26Employment Interviews
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§ 8.27Arbitration
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§ 8.28Employee Handbooks
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§ 8.29Employee Privacy
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§ 8.30Insurance
9Government Regulation of Churches
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§ 9.01Introduction
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§ 9.02Regulation of Charitable Solicitations
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§ 9.03Limitations on Charitable Giving
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§ 9.04Federal and State Securities Law
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§ 9.05Copyright Law
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§ 9.05.01Copyright Ownership
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§ 9.05.02Works Made for Hire
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§ 9.05.03Exclusive Rights
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§ 9.05.04Infringement
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§ 9.05.05The "Religious Service" Exemption to Copyright Infringement
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§ 9.05.06Electronic Media
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§ 9.05.10Other Exceptions to Copyright Infringement
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§ 9.06Government Investigations
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§ 9.07Judicial Resolution of Church Disputes
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§ 9.08Political Activities by Churches and Other Religious Organizations
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§ 9.09Bankruptcy Law
10Church Legal Liability
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§ 10.01Negligence as a Basis for Liability—In General
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§ 10.02Vicarious Liability (Respondeat Superior)
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§ 10.02.01The Requirement of Employee Status
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§ 10.02.02Negligent Conduct
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§ 10.02.03Course of Employment
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§ 10.02.04Inapplicability to Nonprofit Organizations
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§ 10.03Negligent Selection of Church Workers—In General
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§ 10.04Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Minor Victims
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§ 10.05Negligent Selection of Church Workers—Sexual Misconduct Cases Involving Adult Victims
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§ 10.05.01Court Decisions Recognizing Negligent Selection Claims
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§ 10.05.02Court Decisions Rejecting Negligent Selection Claims
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§ 10.05.03Risk Management
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§ 10.06Negligent Selection of Church Workers—Other Cases
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§ 10.07Negligent Retention of Church Workers—In General
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§ 10.07.01Court Decisions Recognizing Negligent Retention Claims
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§ 10.07.02Court Decisions Rejecting Negligent Retention Claims
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§ 10.07.03Risk Management
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§ 10.08Negligent Supervision of Church Workers—In General
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§ 10.09Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Minor Victims
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§ 10.09.01Court Decisions Recognizing Negligent Supervision Claims
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§ 10.09.02Court Decisions Rejecting Negligent Supervision Claims
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§ 10.09.03Risk Management
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§ 10.10Negligent Supervision of Church Workers—Sexual Misconduct Cases Involving Adult Victims
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§ 10.10.01Court Decisions Recognizing Negligent Supervision Claims
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§ 10.10.02Court Decisions Rejecting Negligent Supervision Claims
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§ 10.10.03Risk Management
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§ 10.11Negligent Supervision of Church Workers—Other Cases
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§ 10.11.01Risk Management
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§ 10.12Counseling—In General
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§ 10.12.01Risk Management
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§ 10.13Breach of a Fiduciary Duty
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§ 10.13.01Court Decisions Recognizing Fiduciary Duty Claims
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§ 10.13.02Court Decisions Rejecting Fiduciary Duty Claims
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§ 10.13.03Risk Management
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§ 10.14Ratification
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§ 10.15Defamation
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§ 10.16Defenses to Liability
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§ 10.16.01Contributory and Comparative Negligence
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§ 10.16.02Assumption of Risk
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§ 10.16.03Intervening Cause
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§ 10.16.04Statutes of Limitations
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§ 10.16.05Charitable Immunity
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§ 10.16.06Release Forms
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§ 10.16.07Insurance
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§ 10.16.08Other Defenses
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§ 10.17Damages—In General
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§ 10.17.01Punitive Damages
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§ 10.17.02Duplicate Verdicts
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§ 10.18Denominational Liability—In General
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§ 10.18.01Court Decisions Recognizing Vicarious Liability
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§ 10.18.02Court Decisions Rejecting Vicarious Liability
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§ 10.18.03Defenses to Liability
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§ 10.18.04Risk Management
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§ 10.18.05The Legal Effect of a Group Exemption Ruling
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§ 10.19Risks Associated with Cell Phones
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§ 10.20Risks Associated with the Use of 15-Passenger Vans
12The Present Meaning of the First Amendment Religion Clauses
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§ 12.01The Establishment Clause
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§ 12.01.01The Lemon Test
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§ 12.02The Free Exercise Clause
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§ 12.02.01The Smith Case
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§ 12.02.02The Religious Freedom Restoration Act
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§ 12.02.03The City of Boerne Case
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§ 12.02.04Conclusions
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13Significant First Amendment Issues
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§ 13.01The Right to Witness
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§ 13.02Prayer on Public Property other than Schools
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§ 13.03Prayer During Public School Activities
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§ 13.04Display of Religious Symbols on Public Property
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§ 13.05Recurring Use of Public Property by Religious Congregations for Religious Services
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§ 13.06Nonrecurring Use of Public Property by Adults for Religious Events and Activities
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§ 13.07Use of Public School Property by Students for Religious Purposes
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§ 13.08Sunday Closing Laws
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§ 13.09The Right to Refuse Medical Treatment
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§ 13.10Definition of "Religion" and "Religious"
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