Mastercard Rolls Out New Standards for Recurring Billing

Understanding these standards is important for churches and church-run schools with sustainer donor programs.

You may have heard that Mastercard was implementing new required standards for merchants that use subscription or recurring billing, which includes recurring gifts made to nonprofit entities, churches, and church-run schools.

However, after receiving feedback from merchants, Mastercard has now made the new standards best practices—not a requirement—for nonprofit and charity merchants, as long as those entities do not have excessive chargebacks.

Understanding these new standards is crucial for any church or church-run school with a recurring giving program (also known as a sustainer donor program), including which merchants must comply with the standards, what is required, and the potential penalties for noncompliance.

For those who may wonder, these new standards do not stem from a government regulation. They are a contractual matter with Mastercard and only apply to donations that automatically recur. For example, a one-time gift made by using the “donate” button on a church or school’s website would not be considered a subscription payment.

Furthermore, there has been no indication that other payment processors plan to follow Mastercard’s lead and implement similar required standards.

The back story

On June 14, 2022, Mastercard introduced Transaction Processing Rules that include new standards, outlined in Section 5.4.1, for subscription billing.

While the Transaction Processing Rules state that these standards apply to “subscription billing in which the Cardholder has agreed for the Merchant to provide ongoing and/or periodic delivery of physical products or Digital Goods,” Mastercard later clarified that this includes recurring donations made to nonprofit and charitable organizations.

While the new standards went into effect on September 22, 2022, Mastercard extended the effective date to March 21, 2023, for nonprofit organizations.

In October, Mastercard then announced that, effective October 11, 2022, only nonprofits and charity merchants with excessive chargebacks will be required to comply with the new standards.

Noncompliance is costly

Under the modified requirements, all the standards described below that took effect on September 22, 2022, are recommended as a best practice for nonprofit and charity merchants with a recurring payment program.

However, the standards become a requirement if a nonprofit or charity merchant that uses a recurring payment plan is placed into Mastercard’s Acquirer Chargeback Monitoring Program (ACMP) as an Excessive Chargeback Merchant, High Excessive Chargeback Merchant, or Excessive Fraud Merchant for at least four months. (Mastercard offers a “Data Integrity Monitoring Program” module as well as an updated, downloadable rules document.)

Organizations in the ACMP for at least four months or more that do not implement the required standards may be subject to a costly Category A noncompliance assessment each month, in addition to the assessments applicable under the ACMP.

A Category A noncompliance assessment can be up to $25,000 for the first violation and increase with each subsequent violation, up to $100,000 per violation for the fourth and subsequent violations within 12 months. More information about Category A noncompliance assessments is available in Section 2.1.4 of the Mastercard Rules.

The new, recommended standards entail:

  • Disclosing the donor’s selected donation amount and frequency when requesting credit card information as well as on any payment and order summary webpages and asking donors to accept the subscription terms before completing the donation.
  • Sending a subscription confirmation at the time of enrollment in recurring giving. The confirmation should include the terms of the subscription (the recurring donation) and instructions on how to cancel it.
  • Providing an electronic receipt after every successful billing. This should include instructions on how to cancel the subscription (the recurring donation).
  • Providing an online cancellation method or clear instructions on how to cancel that are “easily accessible online,” such as through a “Cancel Subscription” or “Manage Subscription” link on the organization’s home page.
  • For recurring payment plans that bill less frequently than every six months (180 days), sending an electronic reminder outlining the terms of the subscription (the recurring donation) and instructions on how to cancel the subscription or recurring donation 7 to 30 days before the next scheduled billing date. The communication should reference in the subject line that it relates to upcoming charges, and the message should be distinct from marketing communications.

In its statement about the revised standards, Mastercard said that it changed the requirements after engaging with merchants and recognizing that “some of these requirements present unique challenges to merchants that have found other effective ways to manage their subscription and recurring payment model.”

Ted R. Batson Jr. is a CPA and tax attorney, and serves as a partner and Professional Practice Leader – Tax for CapinCrouse LLP, a national CPA and consulting firm. He speaks and teaches frequently for national conferences and organizations on exempt organization and charitable giving matters.

Advantage Member Exclusive

Get Answers to Your Church’s Most Pressing Employment Law Questions

On-Demand Webinar: Attorney and CPA Frank Sommerville addresses key questions—including yours—about churches as employers.

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Every day, churches face a variety of employment issues. Many questions arise regarding employee classifications, overtime regulations, workplace accommodations, hiring and firing protocols, etc. It seems as if the list is endless.

Though the list is long, church leaders can also avoid many of the most pressing and common employment issues that face their congregations. In this exclusive webinar for Advantage Members, you’ll learn helpful information that will assist you in preparing answers to these frequently asked questions.

Senior editorial advisor for Church Law & Tax, attorney Frank Sommerville, provides insight into Title VII and FLSA in light of their impact on churches, as well as answer employment-related questions submitted by Advantage Members.

Watch now and learn how to address employment matters your church faces.

Speaker:

Frank Sommerville | Attorney

Reading & Resources: 

Download the resources and templates mentioned in this webinar below. Or read one of the articles to get a handle on the basics of developing fair compensation in your ministry.

Key Tax Dates December 2022

Housing allowance designations, year-end transactions, 2022 donations, and more.

Monthly requirements

If your church or organization reported withheld taxes of $50,000 or less during the most recent lookback period (for 2022, the lookback period is July 1, 2020, through June 30, 2021), then withheld payroll taxes are deposited monthly. Monthly deposits are due by the 15th day of the following month.

Note, however, that if withheld taxes are less than $2,500 at the end of any calendar quarter (March 31, June 30, September 30, or December 31), the church need not deposit the taxes. Instead, it can pay the total withheld taxes directly to the IRS with its quarterly Form 941. Withheld taxes include federal income taxes withheld from employee wages, the employee’s share of Social Security and Medicare taxes, and the employer’s share of Social Security and Medicare taxes.

Semiweekly requirements

If your church or organization reported withheld taxes of more than $50,000 during the most recent lookback period (for 2022, the lookback period is July 1, 2020, through June 30, 2021), then the withheld payroll taxes are deposited semiweekly.

This means that for paydays falling on Wednesday, Thursday, or Friday, the payroll taxes must be deposited on or by the following Wednesday. For all other paydays, the payroll taxes must be deposited on the Friday following the payday.

Note further that large employers having withheld taxes of $100,000 or more at the end of any day must deposit the taxes by the next banking day. The deposit days are based on the timing of the employer’s payroll. Withheld taxes include federal income taxes withheld from employee wages, the employee’s share of Social Security and Medicare taxes, and the employer’s share of Social Security and Medicare taxes.

December 15, 2022

  • Complete all year-end transactions to be sure that they are reportable on your income tax return.
  • A church must make quarterly estimated tax payments if it expects an unrelated business income tax (UBIT) liability for the year to be $500 or more. Use IRS Form 990-W to figure your estimated taxes.
  • For 2022, quarterly estimated tax payments of one-fourth of the total tax liability are due by April 18 (April 19 if you live in Maine or Massachusetts), June 15, September 15, and December 15, 2022, for churches on a calendar-year basis. Deposit quarterly tax payments using Electronic Federal Tax Payment System (EFTPS).

December 31, 2022

  • Churches must designate a portion of each minister’s compensation as a housing allowance by this date in order for ministers who own or rent their homes to receive the full benefit of a housing allowance exclusion for calendar year 2023. The designation should be adopted during a regular or special meeting of the church board and should be contained in the written minutes of the meeting.
  • Churches should designate a parsonage allowance for any minister who lives in a parsonage and who is expected to pay some of the expenses of maintaining the parsonage (e.g., utilities, furnishings, repairs, improvements, yard care, insurance).
  • Donors must deliver checks on or by this date to claim a charitable contribution deduction for 2022. Checks that are placed in the church offering during the first worship service in 2023 will not qualify for a charitable contribution deduction in 2022, even if the check is predated to 2022 or was written in 2022. However, checks that are written, mailed, and postmarked in 2022 will be deductible in 2022 even though they are not received by a church until 2023.
  • An employee’s marital status on this date determines his or her filing status for the year.
  • If you have a minister or lay worker who is treated as self-employed for federal income tax reporting purposes, but who you would like to reclassify as an employee, the ideal time to make the change is on January 1, 2023.
Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Key Tax Dates November 2022

Monthly and semiweekly requirements for depositing payroll taxes.

Monthly requirements

If your church or organization reported withheld taxes of $50,000 or less during the most recent lookback period (for 2022, the lookback period is July 1, 2020, through June 30, 2021), then withheld payroll taxes are deposited monthly. Monthly deposits are due by the 15th day of the following month.

Note, however, that if withheld taxes are less than $2,500 at the end of any calendar quarter (March 31, June 30, September 30, or December 31), the church need not deposit the taxes. Instead, it can pay the total withheld taxes directly to the IRS with its quarterly Form 941.

Withheld taxes include:

  • Federal income taxes withheld from employee wages
  • The employee’s share of Social Security and Medicare taxes
  • The employer’s share of Social Security and Medicare taxes

Semiweekly requirements

If your church or organization reported withheld taxes of more than $50,000 during the most recent lookback period noted above, then the withheld payroll taxes are deposited semiweekly.

This means that for paydays falling on Wednesday, Thursday, or Friday, the payroll taxes must be deposited on or by the following Wednesday. For all other paydays, the payroll taxes must be deposited on the Friday following the payday.

Note: Large employers having withheld taxes of $100,000 or more at the end of any day must deposit the taxes by the next banking day.

The deposit days are based on the timing of the employer’s payroll.

Withheld taxes include federal income taxes withheld from employee wages, the employee’s share of Social Security and Medicare taxes, and the employer’s share of Social Security and Medicare taxes.

Key Date: November 10, 2022

Churches having nonminister employees (or one or more ministers who report their federal income taxes as employees and who have elected voluntary withholding) may file their employer’s quarterly federal tax return (Form 941) by this date instead of October 31 if all taxes for the third calendar quarter have been deposited in full and on time.

Note: If a date listed for filing a return or making a tax payment falls on a Saturday, Sunday, or legal holiday (either national or statewide in a state where the return is required to be filed), the return or tax payment is due on the following business day.

Note: You must use electronic funds transfer to make all federal employment tax deposits. This is generally done using the Electronic Federal Tax Payment System, a free service provided by the U.S. Department of Treasury. If you don’t wish to use EFTPS, you can arrange for your tax professional, financial institution, or payroll service to make deposits on your behalf. Failure to make a timely deposit may subject you to a 10-percent penalty.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Advantage Member Exclusive

Meetings Matter: A Crash Course for Church Leaders

On-Demand Webinar: Quick tips and insights for effectively running anything from a board meeting to a congregational meeting.

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Editor’s note. This video is part of the Advantage Membership. Learn more on how to become an Advantage Member or upgrade your membership.

Church meetings play a crucial role in the life of the church. Yet leaders rarely receive training to help them organize and run meetings crucial to their ministries’ directions. The lack of preparation can unintentionally cause problems—or worse, conflict.

Attorney Sarah Merkle helps churches, ministries, and nonprofits get organized and ready for meetings. In this webinar recording for Church Law & tax advantage members, Merkle provides a crash course on meeting leadership that will help leaders improve their skills fast.

Through case studies and examples, Merkle demonstrates how your church can make its next board meeting productive and fruitful. Learn how to create effective agendas, set meeting orders, make and discuss motions, take minutes, and more by watching this recording now.

Reading & Resources: 

Download the resources and templates mentioned in this webinar below. Or read to learn more about this important topic:

Sarah E. Merkle is a professional parliamentarian and presiding officer. One of five lawyers worldwide to have earned the credentials Certified Professional Parliamentarian-Teacher (CPP-T) and Professional Registered Parliamentarian (PRP), she helps boards, associations, corporations, and public bodies navigate rules applicable to governance and business meetings.

Part 6 of 6

The Remote Worker and the FLSA

How churches should handle employee classifications and overtime pay as more people work from home.

Many employers—including churches—offered remote-work options even before the COVID-19 pandemic. Many churches were willing to accommodate employees who were just as happy and effective working from home.

Many employers typically are comfortable with exempt employees working remotely. Those are the employees not bound by the 40-hour workweek and not entitled to overtime.

But employers struggle with how to build systems that allow nonexempt employees—those bound by the 40-hour workweek and entitled to overtime pay—to work remotely and still meet all the regulatory standards.

Categories of employees

Before reviewing tips for handling a remote workforce, it is good to review the three categories of employees in light of the Fair Labor Standards Act (FLSA). The FLSA establishes minimum wage, overtime pay, and recordkeeping standards, among other things. There are three categories of employees affected by the FLSA: (1) those covered by the ministerial exception; (2) exempt employees, and (3) nonexempt employees. Some default rules and definitions can help churches categorize employees.

Caution. The information provided in this article is based on federal law administered by the US Department of Labor (DOL). Each church should also review state and local laws to determine additional requirements.

Use the following steps to classify church employees for the FLSA.

Step 1: Ministerial exception

The court-created ministerial exception says that employees qualifying as “ministers” are not subject to the FLSA employment laws. Therefore, employees qualifying as ministers may be excluded from wage and hour rules.

Churches may take advantage of the ministerial exception. However, it isn’t clear how the ministerial exception applies to employees of para-church organizations or other nonreligious-based organizations, such as nursing homes.

Every church should review all of its employees to determine which ones may be classified under the ministerial exception. For those classified under the ministerial exception, churches should support these determinations with well-constructed job descriptions and clear communication with the employees covered. The designation of “ministerial exception” also should be included in their personnel records. These employees have now been classified in the church’s systems and are removed from future FLSA consideration.

Step 2: Exempt employees minimum salary test

After completing Step 1 and removing all the “ministers” from FLSA consideration, the next step is an objective wage analysis on the remaining employees.

All exempt employees, except for doctors, teachers, and lawyers, must meet a minimum weekly salary test to be deemed an exempt employee.

All employees who make less than $684 per week or more are classified as nonexempt employees and thus eligible to receive overtime pay under FLSA.

Unless the employees are doctors, teachers (not daycare teachers), or lawyers, their duties are irrelevant and they are classified as nonexempt when they fall below this minimum salary threshold. The amount may not be prorated for part-time employees.

Note. The minimum salary threshold was raised by the DOL in 2020, from $455 per week to $684 per week. The threshold remains subject to future changes.

Step 3: Exempt employee duties test

For all remaining employees, it is necessary to examine their job duties to see if they meet the exempt employees duties test as defined by DOL.

To be exempt, an employee must make more than $684 per week, as discussed, and perform duties defined in the DOL’s Executive, Administrative, Professional, or Computer classifications. The appropriate classification should be supported by a well-constructed job description.

Caution. The Administrative classification is most abused by employers. This classification does not include administrative assistants, so churches should take care before they universally apply this classification.

Caution. Simply agreeing to a salary pay arrangement does not create an exempt employee. Churches may pay a nonexempt employee with a salary arrangement, but they must still comply with wage and hour rules, including timekeeping and overtime rules.

After performing the “duties test” analysis, any employee properly classified in one of the exempt duties categories is an exempt employee, and thus not subject to wage and overtime rules under FLSA. Any employee who does not fit one of the exempt duties categories is a nonexempt employee and falls under FLSA rules.

Remote work requirements: The nonexempt employee

Employers have traditionally attempted to keep their remote workforces limited to their exempt employees because those workers do not receive overtime pay, and tracking their hours for such purposes is therefore unnecessary. Churches have taken a similar tact, often attempting to limit remote work to only their ministerial employees, who are also exempt employees and are not eligible for overtime pay.

Nonexempt workers are subject to minimum wage and overtime rules—whether they work in the workplace or in their homes.

Remote nonexempt workers pose several concerns to employers, including these questions:

  • How does the employer know what time is good work time, given how much easier it is for work to stop and start at home due to distractions?
  • How does the employer know if the worker is working at all?
  • Are the boundaries between work and personal time so blurred that supervisors forget the nonexempt worker cannot answer texts or emails at any time of the day or night?
  • How does the employer keep track of the time that is worked?

Maintaining a remote workforce involving nonexempt workers requires employers to rethink and solidify their work requirements. It also requires instilling a high sense of integrity into all employees. The remote-work arrangement requires a high level of trust in both the employer and the employee, no matter the classification of the employee, but especially with the nonexempt employee.

Employers should establish strong expectations for all nonexempt employees with good communication regarding expectations and policies.

Note. The remote work arrangement requires a high level of trust in both employer and employee, no matter the classification of the employee, but especially with the non-exempt employee.

Work times

Nonexempt employee should know the general hours when they are expected to perform their duties. While it is acceptable to have this as a flexible arrangement, it will eliminate frustration if it is strongly defined.

Break times

Information should be provided about allowed breaks, and when breaks are—or aren’t—compensated. For example, breaks of 20 minutes or less are still required to be compensated, whereas the break of 30 minutes or longer, like a lunch break, is not required to be compensated.

Employees need to clearly understand that performing any work tasks during a break creates compensable work time.

Therefore, if the employee breaks for lunch, but continues to check email during the 30-minute lunch break, a break has not occurred, and the employee must be compensated for this time.

This is easier to understand and comply with at the office, but an employee may struggle with the temptation to skip breaks or work through them when in the comfort of their own home. In reviewing time records, employees who report no breaks should be questioned to determine actual work practices.

Responding to Other Employees

When working from home, the office/home boundaries are more blurred than ever before. Additionally, a church may have employees working on different schedules. Exempt employees who are night owls might be working at midnight while others will rise with the sun and start early. In either instance, emails, phone calls, or texts may easily be sent to nonexempt employees when they are not on the clock.

The church must determine when responses will be expected from nonexempt employees. Supervisors need to understand that just because an employee is working from home does not mean that all time at home is available for work. All employees, especially nonexempt employees, need to set and communicate boundaries regarding when they will or will not respond to an email, text, or phone call.

Churches need to respect an employee’s personal time and assist them in enforcing these established boundaries. Frustration should not be expressed by the night owl whose administrative assistant is an early bird because he or she is not available when the night owl is working.

While just seeing a text does not create work time, responding to it may.

Time that is infrequent and insignificant (de minimis time) outside of regularly scheduled working hours may be disregarded, if it cannot be precisely recorded for payroll purposes. Key concepts in determining de minimis time include:

  • Short. The time involved is fleeting. For example, a text is sent to an administrative assistant after hours that only requires a quick “yes” or “no.”
  • Unexpected and Not Required. The occurrences are infrequent and not anticipated. The requests should not occur more than a few times per year and never close to other requests.
  • Time Recording Is Practically Impossible. It must be proved that precisely recording the time would not be possible.

In practice, the de minimis time exception should not be regularly relied upon; it should be the exception and not the rule. When time is involved in after-hours work, employers must pay the minimum time increment for each response.

For employers that track time in 15-minute increments, the employer must pay for 15 minutes if an employee responds to the text during off-hours. (Some states have a minimum amount of time, as high as two hours, which must be paid for each off-hours response.)

To address these concerns, churches should create policies both to assist with capturing all work time and to protect the church if time is not correctly recorded. Policies should include:

  • No off-the-clock work. All employees should understand that nonexempt employees are not expected to work “off-the-clock” or outside of their customarily defined work times. Nonexempt employees may receive texts and emails after hours, but there is no expectation that they will be responded to until the next scheduled workday.
  • All work time is reportable. All nonexempt employees are expected to record all time worked, including time involved with “after hours” texts and emails. If the church is aware of an employee violating the policy, it must take steps to correct the reporting issues. Nonexempt employees should never be “donating” time in their required work areas.

Churches need to actively train all employees, including ministers, on respecting boundaries, as well as time reporting requirements, especially for nonexempt employees. The church should also monitor compliance through periodic surveys sent to all staff.

Timekeeping requirements

How time will be kept and how often it must be submitted to a supervisor and the payroll department are important questions to be answered. There are many excellent electronic timekeeping systems that make this task more manageable than even ten years ago.

Many of those systems also have safeguards to prevent employees from logging into the system while they are not on the clock and at, say, the local amusement park.

Since there is a higher risk of accidental work time with remote workers, the system also should provide a method for entering time “after the fact,” meaning it was worked when the employee was not logged into the system. If a physical system, such as an Excel spreadsheet, is kept by the employee, then guidance should be provided as to how often time must be submitted to supervisors.

Tip. If the church is not keeping time records for all nonexempt employees, this is a great—and important—time to start. DOL requires employers to keep records of the hours worked each day, as well as the total hours worked each week. These records must be maintained for two years. This is required, even if the nonexempt employee is paid on a salary basis.

Remote workforce requirements: The exempt employee

Since the exempt employee is not required to keep track of the exact hours worked, FLSA concerns differ from the nonexempt employee concerns. It is critical to understand when exempt employees’ pay can be reduced if the employer determines they are not working predetermined hours.

Pay for the day

Exempt employees must be paid for a full day if they worked any part of the day. Therefore, if an exempt employee completes their job by lunchtime, they must still receive a full day’s pay.

Pay for the week

In general, if an exempt employee is available to work, an employer must pay the employee for all the days in the workweek if the employee works even part of the week.

For example, if a full-time exempt employee’s work can be accomplished in two days during the week, the employee must be paid for the entire workweek if he or she is available to work during the entire workweek.

Application of paid leave time

Employers may require an exempt employee to use paid leave time in half-day or full-day increments. However, even if there is no paid leave time to apply to a half-day or partial day, the full day still must be paid. The employer is not required to pay for a full day taken without leave.

Next Steps

  • Review how your church’s employees are categorized to ensure they fall within legal definitions.
  • Establish appropriate communications to all staff regarding nonexempt employees. Use the communications to help build an environment of trust and respect for boundaries.
  • Establish a method of polling employees to help determine that boundaries are being respected.
  • For more information on the church and worker classifications under the FLSA see the excellent book Church Compensation – Second Edition: From Strategic Plan to Compliance by Elaine Sommerville, CPA, available at churchlawandtaxstore.com

This article was adapted from a chapter originally appearing in Working Remotely: A Framework for Success, GreenDot.Press (2022). Used with permission.

Mastering Meeting Basics

A five-part series providing simple and straightforward guidance to church leaders.

Church business meetings take place any time church members, boards, or committees get together to conduct official church business—from annual member meetings to weekly or periodic board or committee meetings where votes are taken and decisions are made.

This five-part article series is designed to provide simple and straightforward guidance to church leaders on parliamentary procedure and best practices for business meetings.

Sarah E. Merkle is a professional parliamentarian and presiding officer. One of five lawyers worldwide to have earned the credentials Certified Professional Parliamentarian-Teacher (CPP-T) and Professional Registered Parliamentarian (PRP), she helps boards, associations, corporations, and public bodies navigate rules applicable to governance and business meetings.

Part 5 of 5

Running a Virtual Church Business Meeting

A quick guide to conducting church business virtually.

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Prior to March 2020, virtual business meetings were rare or nonexistent for most churches. Many churches had never even entertained options for including members virtually in a business meeting hosted online. And then COVID-19 changed the world. Virtual church business meetings became a necessity—even commonplace.

Now, hybrid meetings—where some members attend in person and others attend virtually—are the norm in many places. But what are the elements of a properly run, fully virtual or hybrid meeting? How can you be sure that a quorum is present, that members are properly recognized, and that votes are accurately counted?

This article will tackle these and other questions with the goal of ensuring your meetings with members attending virtually follow proper parliamentary procedure.

Are virtual business meetings a permissible option for your church?

The first step to holding a proper virtual church business meeting is to determine whether your church is permitted to conduct business virtually. The default rule under Robert’s Rules of Order Newly Revised, the rule book that many churches follow, is that a church is not permitted to hold a virtual business meeting unless the state law that applies to that church or the bylaws of that church explicitly allow such meetings.

To determine this permissibility, look first in your church’s bylaws for provisions that address telephonic meetings, electronic meetings, or virtual meetings. Sometimes bylaws will state that a church can hold meetings by any method that allows all participants or members to hear each other simultaneously. If this type of provision exists, your church can permissibly hold a virtual business meeting.

If there is nothing in the church bylaws regarding virtual meetings, the next step is to check the state law that applies to your church to see if it includes any blanket provisions allowing organizations to meet virtually even without bylaws language to that effect.

If neither state law nor your church’s bylaws allow for virtual business meetings, holding one and taking action at it is technically impermissible and definitely inadvisable.

If a church needs to take action that simply cannot wait for an in-person meeting, it can hold a virtual business meeting and then ask the members to ratify the action taken at a later, in-person meeting. But this procedure is risky since the church is under no obligation to sanction the decisions made at the virtual meeting.

The best course is to amend your church’s bylaws to include a provision that allows virtual attendance and participation at any business meetings to be held by the members or any smaller group (e.g., deacons, elders, committees, and so on).

How does a church confirm that a quorum is present at a virtual business meeting?

A quorum is the minimum number of members that must be present for an organization to conduct business. This term applies to small boards and committees, as well as general members meetings. For a business meeting of all members, that number, usually expressed as a percentage, should be specified in your church’s bylaws. If your church’s bylaws do not state a quorum requirement, follow the requirement found in the state law that applies to your church.

For a general members business meeting, an accurate roll of church members—or as close to an accurate roll as possible—is the place to start when determining whether a quorum is present. Follow these guidelines:

  • First, calculate the number needed for a quorum by multiplying the decimal version of the percentage stated in your bylaws or state law by the total number of church members on the most-current membership roll.For example, if the current membership roll includes 150 members, and the bylaws state a quorum requirement of 20 percent, multiply .20 times 150. A quorum for meetings would need to be a minimum of 30 members present either in person or virtually.
  • Second, organize the roll alphabetically by last name and include the name of each individual member, even if one household includes multiple members.
  • Third, use a virtual meeting software that allows members to be placed in a waiting room before entering the meeting, and then ask members in the waiting room to change their screen name to be their full name plus the name of the individuals in the household that are attending the meeting through that specific device.For example, if a husband and wife are viewing and participating in the meeting together using the same computer, one of their names should be the primary screen name and the name of the spouse should be in parentheses, like this: Larry Long-Time Member (Lisa). This format indicates to the staff helping with the meeting that there are two members present in that household and that both members should be counted to determine whether a quorum is present.

    Even if your church isn’t concerned about meeting its quorum requirements, using this format to identify the individuals present at the meeting is helpful for recognizing members and facilitating discussion.

  • Fourth, at the announced start time of the meeting, those confirming the presence of a quorum should total the members present in person and those participating virtually, then verify the quorum requirement is met before starting the meeting.

A similar process would be followed for determining that a quorum is present for a small group, committee, or board meeting.

How does a church facilitate discussion at a virtual business meeting?

Discussion in a virtual business meeting can mirror what might happen in person but cannot replicate or replace it.

Meeting in person is still the best way to allow for as effective and inclusive of a discussion as possible on a topic. Virtual meetings may allow for greater attendance, but more people at a meeting does not necessarily equal more participation, and a virtual environment often slows the democratic process such that fewer total members can speak in a given time frame.

When a motion is made and the chairperson asks for discussion, it is helpful to use the reaction buttons within virtual meeting software to seek recognition.

Depending on the size of the meeting and the nature of the topics being discussed, the chairperson could simply ask members who want to speak to select the software’s “raised hand” icon. The chairperson could also provide more options for participation by asking members to select specific icons to indicate that they want to speak in favor or in opposition, or to indicate that they want to make a motion that has priority (such as a point of order).

Caution. Allowing members to engage in discussion on an item of business through a software’s chat feature is undesirable because that format removes all limits on the amount of time or number of times that one member can speak on a topic and, therefore, violates one of the most fundamental principles of parliamentary law—that each member has an equal right to speak.

How does a church facilitate voting at a virtual business meeting?

When determining how to allow virtual voting, the first question to ask is whether both members and nonmembers will attend the meeting. If only members will attend, voting can likely be accomplished through the virtual meeting software that you are using.

The next question to ask is whether votes must be secret (i.e., by ballot). Votes are not required to be secret unless the bylaws specify this requirement or unless a vote is taken to require that all or certain types of votes be conducted by ballot.

If only members are voting and votes do not need to be taken by ballot, you can use the raised hand button in the virtual meeting software to take a vote. On a noncontroversial matter, a chairperson may be able to determine whether a motion is adopted simply by eyeballing the number of hands raised just as would occur if the members were meeting in person.

On a closer vote, though, the chairperson may need to count the raised hands to determine the result. If this is the case, and you have a large group, you may want to consider using the software’s polling feature, which automatically counts the votes. The difficulty with that option is that it does not account for multiple members who are attending under one login. In this case, manual counting would be necessary.

If nonmembers are virtually attending a meeting, there are two main options for taking a vote and ensuring that the non-members are not voting.

Option 1. Transfer all nonmembers to a “breakout room” within the software while the members vote in the main meeting room. Once the voting is completed, you can move the nonmembers back to the main meeting room. This may sound complicated, but it can be done efficiently with a little practice, preparation, and knowledgeable staff.

Option 2. Use a voting software separate from the virtual meeting software and provide that voting link by email to the members in virtual attendance at the meeting. If your bylaws require secret ballot voting, it would be important to select software that allows for that option.

The choice to utilize hybrid or virtual formats

Though many churches have now become very comfortable operating in the virtual space, it is important to realize that meeting logistics become much more complicated when a hybrid meeting format is used. When attendees are present both virtually and in person, leadership will face many more challenges than they would deal with in an all-virtual or all-in-person meeting.

Something intangible is lost by meeting virtually. Though the same decisions can be made, collaboration is minimized, the informal conversations in the hallways disappear, and the “feel” of the group is different when some or all of the participants are not in one physical space together. Additionally, transacting the business in virtual and hybrid meetings takes longer.

In short, physical presence matters. Allowing virtual participation, even with the intent of greater member attendance, is not necessarily better, and leaders should give serious thought to the details of quorum and discussion before allowing a hybrid format.

Return to the series homepage.

For related infographics and downloadable resources from the author, visit The Law of Order blog at civility.co.

Sarah E. Merkle is a professional parliamentarian and presiding officer. One of five lawyers worldwide to have earned the credentials Certified Professional Parliamentarian-Teacher (CPP-T) and Professional Registered Parliamentarian (PRP), she helps boards, associations, corporations, and public bodies navigate rules applicable to governance and business meetings.

Part 4 of 5

Taking Minutes at a Church Business Meeting

How to properly document the official actions taken at a meeting.

If you’re reading this article, you’ve likely found yourself in a position where you need an explanation of business meeting minutes.

That’s where this article will come in handy. Here you’ll find answers to four common questions related to taking minutes.

What are business meeting minutes and why do they matter?

Business meeting minutes are the official record of a group’s action. Taking minutes is important for at least two reasons.

First, the law expects that organizations will keep an official record of the proceedings of a group’s members, committees, and governing bodies.

The Internal Revenue Service (IRS) requires tax-exempt organizations that file a Form 990 to verify that, as an organization, they have documented their actions. Even though the IRS does not require churches to file a Form 990, state nonprofit laws often include a requirement that nonprofit organizations located in that state keep an official record of actions taken.

Second, and arguably more important on a practical level, properly taken minutes eliminate confusion and disagreement about what occurred at a meeting.

Ask most church members what occurred at a business meeting and the odds are low that they will remember the actions taken with any precision. They may remember topics discussed and comments made, especially if there was any controversy, but their memory of the wording of motions made and adopted will not be reliable. Carefully taken minutes provide clarity when a member cannot remember what happened.

Who should take business meeting minutes?

In general, it is important to have a designated minutes-taker. Most commonly, this responsibility falls to the individual elected or appointed to the office of secretary, and this person may be different than the individual employed as the church secretary.

The minutes-taker has two important duties: (1) to ensure the minutes actually get taken, and (2) to ensure that the minutes are stored in a designated place that’s easily accessed by those who need them now and in the future.

So, if achieving these goals means that someone other than the elected or appointed secretary takes the minutes, that is completely allowable. It is better to go this route than to have no minutes taken at all or to be unable to find them later.

What should business meeting minutes include?

Very simply, business meeting minutes should include a record of what was done, not what was said. In other words, minutes should include a record of the actions taken on various items of business, but they need not (and should not) include a record of which individuals discussed those items of business or what those individuals said.

Even with the best of intentions, any attempt to summarize the comments made tends to result in inaccuracies or biased presentation. If there’s a reason for the church to have a record of the discussion on various items, the best course of action is to hire a court reporter so that you have a reliable transcript.

If you are the person charged with taking minutes, the first part of the record should include a paragraph containing the following information:

  • the type of meeting (e.g., regular, special, continued);
  • the name of the group that is meeting;
  • the date, time, and place of the meeting;
  • an acknowledgement that the person in charge of the group (e.g., chairman, president, pastor) and the secretary were present; and
  • an acknowledgement that a quorum was present, and in a smaller group (a dozen or fewer), a list of the members who were present.

Here’s an example:

A regular meeting of the Deacon Board of the One and Only Church was held on January 15, 2022, at 7 p.m. at the church building. Chairman Smith and Secretary Brown were present. A quorum was present.

After the opening paragraph, the minutes should follow the same order as the meeting agenda and should contain a separate paragraph for each item on the agenda.

  • If the agenda item is a report, the minutes can state under the report heading that a certain individual presented a report.
  • If the agenda item results in a main motion or several, the minutes should state the final wording of the motion as stated just before the vote, and then note whether the motion was adopted, defeated, or otherwise disposed of (e.g., referred to a committee or tabled).
  • If the motion was amended before it was put to a vote, the minutes can say as much, but they only need to state the final wording of the motion and do not need to include all the iterations that occurred from the time the motion was initially proposed until the vote. It is generally wise to include the name of the individual who made the motion in the minutes, but there’s no need to include the name of the person who seconded it.

Here’s an example of an action recorded in meeting minutes:

After presenting a report on the status of the church property, Deacon Dave, Chairman of the Building Committee, moved on behalf of the Building Committee that the church request proposals from three architecture firms for the design of a new addition to the sanctuary. The motion was adopted as amended.

How are business meeting minutes approved or corrected?

Minutes become the official record of a group’s actions when that group approves them. Typically, minutes are presented for approval at the next regular meeting after they were taken, and they are circulated to the group in a reasonable amount of time before the meeting so that the members can review them ahead of the meeting if they choose to do so.

At the meeting where the minutes are presented for approval, there’s generally no need to read them aloud to the group unless someone specifically requests that they be read. Instead, the chairperson should simply ask, “Are there any corrections to the minutes from the January 15, 2022, meeting as distributed?” If there is no response after a brief pause (three to five seconds), the chairperson should say, “Hearing no corrections, the minutes are approved as distributed.”

If there’s a correction to fix the minutes so that they accurately reflect what occurred during the previous meeting, the chairperson should ask if there is any objection to that correction. If not, the chairperson should state that the correction will be incorporated into the circulated draft.

As long as any requested correction is truly that—meaning, it is an adjustment that fixes the minutes so that they are an accurate reflection of what occurred during the meeting—then, objections to that correction should be rare. But if there is disagreement, the group should take a vote on the proper wording.

Note. It is important to remember that making a correction to the minutes is not a way to change what occurred during the meeting where the minutes were taken. What happened at the meeting is in the past, and changing the action taken there can happen only if the group takes a vote to that effect. Approving the minutes is simply a way to confirm that the record of what happened is accurate.

Return to the series homepage.

For related infographics and downloadable resources from the author, visit The Law of Order blog at civility.co.

Sarah E. Merkle is a professional parliamentarian and presiding officer. One of five lawyers worldwide to have earned the credentials Certified Professional Parliamentarian-Teacher (CPP-T) and Professional Registered Parliamentarian (PRP), she helps boards, associations, corporations, and public bodies navigate rules applicable to governance and business meetings.

Part 3 of 5

Voting at a Church Business Meeting

Four primary methods of voting that members and leaders should understand.

Whether you’re casting a vote, taking a vote, or calculating a vote at a church business meeting, it is valuable for both members and leaders to understand the voting process and feel confident about how the result of a vote is determined.

To equip you with the skills needed to take and count a valid vote, this article will explain the four primary voting methods and define three important terms.

What are the different methods of taking a vote?

There are four primary methods for taking a vote: general consent, voice, raised hand or standing, and ballot. No one voting method is inherently better than another although some tend to work better than others in certain circumstances.

First, it is important to understand that no vote must be counted or be secret unless a group has decided that a count or a secret ballot should be used for a specific vote or category of votes.

  • For example, a church’s bylaws may include a provision that requires all elections to be conducted by ballot. If so, all election votes will necessarily be counted and secret, even if only one person is running.
  • Or, a church may decide at a business meeting that it wants (or needs) a record of the number of votes in favor of or opposed to a specific motion rather than simply a record of whether the motion passed or failed.In that case, the members would need to take a vote directing that the vote on the substantive motion be counted. Unless the members give that type of directive, votes do not need to be counted, even if they are taking a vote by raised hand or by standing.

The rationale here is that counting votes takes time, and a group’s time shouldn’t be used to count votes unless the group has agreed to it.

Here, then, are the primary methods for voting.

Voting Method #1: General or unanimous consent vote

A general consent or unanimous consent vote is a vote used for decision-making on noncontroversial matters. The goal of taking a vote by unanimous consent is efficiency. This type of vote skips the discussion portion of the motions process and eliminates the need for the chairperson to say, “All those in favor. … All those opposed. …” Instead, the chairperson can simply ask if there are any objections to the action proposed by the motion.

For example, if the proposed action is approval of the meeting agenda, the chairperson would ask, “Are there any objections to approving the meeting agenda as distributed?”

After pausing briefly (three to five seconds) to listen for any objections, the chairperson would then say, “Hearing none, the agenda is approved as distributed,” and would move to the next item of business. If there is an objection, the chairperson would say, “There is an objection,” and would move to the discussion portion of the motions process as described here.

Voting Method #2: Voice vote

A voice vote asks members to state whether they are in favor of or opposed to a motion by saying “aye” or “no.” When taking this type of vote, the chairperson determines the winner by listening to which side is louder.

Sometimes, there is need for clarification of the results of this type of vote.

  • If the result is not clear to the chairperson, he or she can retake the vote by asking the members to raise their hands or stand (the next voting method listed in this article). If necessary, the chairperson can take a count of the vote.
  • If the result is clear to the chairperson but not to one or more of the members, a member can call out, “Division,” which is the parliamentary procedure term for requesting that the chairperson retake the vote by another method that more clearly indicates the result.

This scenario is not uncommon, especially in a large group, because an individual may be sitting in a section of the room in which the side (ayes or noes) that is louder differs from the side that is louder overall.

As discussed above, calling out “Division” does not require a counted vote—a raised hand or standing vote can clarify the result.

Voting Method #3: Raised hand or standing vote

A raised hand or standing vote is a good way to take a vote if the results are too close to call through a voice vote, or if a counted vote is needed or required. This is also a helpful method for taking votes when individuals with voting privileges are seated together with individuals who do not have voting privileges.

For example, some churches allow visitors or regular attenders to stay for business meetings or may allow families to attend business meetings even if not all of them are members. Taking a voice vote in this type of setting may not allow for confidence in the result, especially if the result is close. A raised hand or standing vote can provide a good alternative.

A raised hand or standing vote can be easily counted by having the members count off, starting at the front of the room and working row by row to the back. The chairperson or a teller (a designated vote counter) can cue the first person in the front row to say “1” and lower their hand or sit down, and then cue the person next to them to say “2” and lower their hand or sit down—working all the way through the room until all votes have been counted.

This may sound time consuming, but it doesn’t take much, if any, more time than having a teller go row by row and count all of the votes. The advantage is that the members are involved in the counting and are less inclined to question whether the votes have been accurately tabulated.

Voting Method #4: Ballot vote

A ballot vote is a secret vote by default unless the bylaws require that a ballot be signed. Ballots are generally used for elections and votes on very consequential matters (e.g., a vote to consider a large expense, dissolve a church, merge with another church, or ask an individual to be a pastor, and so on).

When ballot votes are counted, at least two tellers should work together to count them. In the case of an election, each candidate may appoint one representative in addition to the tellers to oversee the counting.

After the ballots are counted, the tellers should prepare a report that includes the total number of ballots cast, the number of votes necessary for election or for adoption of a motion, and the number of votes received by each candidate or votes in favor and opposed to a motion.

The tellers should give the report to the chairperson for announcement of the results and give the ballots to the secretary or a designated person to keep until the time for ordering a recount has passed.

What do the terms majority, two-thirds, and plurality mean?

Various terms are commonly used within bylaws to describe the number of votes needed for a motion to be adopted or for an individual to be elected. It’s important to know the requirements for each vote taken and how to calculate results for that type of vote.

Majority vote

In voting contexts, the term majority is defined as more than half. If a church’s governing documents or rules use the term majority without qualification, the baseline or denominator from which a majority is calculated is the number of votes cast. For example, if 120 individuals are present, but only 100 individuals cast a vote, at least 51 votes would be required for the adoption of the proposal.

Qualifiers can be added to the term majority, however, to change the calculation. For example, to adopt any proposal or to adopt proposals on certain topics, governing documents can require a majority of those present or a majority of the entire membership.

Two-thirds vote

In voting contexts, the term two-thirds generally means at least two-thirds of the individuals present and voting. But as with the term majority, two-thirds can be qualified to mean at least two-thirds of the individuals present or at least two-thirds of the entire membership.

It is also important to understand that two-thirds is not necessarily the same as 66.6 percent or 67 percent. The best way to calculate two-thirds is to multiply the total number of individuals of which two-thirds is needed times 2, then divide that number by 3, and then round the result to the nearest whole number.

Plurality

The term plurality means more votes than any other option but not enough votes to constitute a majority. Here’s an example of a plurality vote calculation: Three candidates are running for office. There are 100 members present and voting. Candidate #1 receives 40 votes; candidate #2 receives 41 votes; candidate #3 receives 19 votes. If bylaws specify that the winning candidate must receive a plurality of the votes, candidate #2, in this case, would be the winner.

Return to the series homepage.

For related infographics and downloadable resources from the author, visit The Law of Order blog at civility.co.

Sarah E. Merkle is a professional parliamentarian and presiding officer. One of five lawyers worldwide to have earned the credentials Certified Professional Parliamentarian-Teacher (CPP-T) and Professional Registered Parliamentarian (PRP), she helps boards, associations, corporations, and public bodies navigate rules applicable to governance and business meetings.

Part 2 of 5

Making Motions at a Church Business Meeting

Four questions to help ensure your motions follow proper parliamentary procedure.

Have you ever attended a business meeting and wondered what exactly is happening when people make motions? Maybe you’ve wondered why it’s necessary at all. Or perhaps the process is generally familiar to you, but you get tripped up from time to time on the little details of how motions work.

Whatever your level of understanding, this article explores four questions to help ensure your motions follow proper parliamentary procedure.

What is a motion?

A motion is a proposal for specific action. It’s the vehicle by which a group makes an official decision to do or not do a certain thing.

If you think generally about how decisions are made when more than one person is involved, they typically follow a standard format: (1) they start with the proposal of an idea (e.g., “Let’s get Taco Bell for lunch!”); (2) they often involve some level of discussion (e.g., “McDonalds is better than Taco Bell!”); and (3) they end with individuals expressing their choices.

Motions are the way of formalizing that process in a group that is conducting official business.

There are two types of motions: main motions and secondary motions. Main motions propose substantive action—e.g., “I move that the church repave the parking lot.” Secondary motions propose procedural action related to the group’s meetings—e.g., “I move to refer this main motion to a committee,” or “I move to adjourn.”

How does a member make a motion?

To make a motion, ask to be recognized by raising your hand or going to a microphone, and then say the words, “I move that. …” Follow those words with your substantive or procedural proposal.

There are a few pitfalls to avoid here.

  • Avoid discussing the topic of your motion before you make it. In other words, if you’re frustrated that the church parking lot has potholes and cracks, save your expression of that frustration until after you’ve made the motion and the chairperson has asked if anyone would like to discuss the proposal.
  • Avoid using phrases like “I think we should” or “I’ve been thinking about” to introduce a motion. These phrases aren’t clear indicators of what you’re trying to do, and they may not result in your idea actually being put to the group for discussion. “I move that” is always the best place to start.
  • Avoid making a main motion when there is another main motion already being discussed. This rule supports efficiency: Discussing one topic at a time and then voting on it tends to streamline business and lessen confusion.

What happens to a motion after it is made?

After a member makes a motion, there are three events that should occur before the proposal becomes an official action taken by the group.

Second

A second is the word used in business meetings to indicate that more than one person thinks an idea is worth the group’s time. One member makes a motion, and another member has to say “second” for the motion to get any traction.

Note. When a member says “second,” it doesn’t necessarily mean that the member agrees with the idea proposed. It simply means that he or she thinks the group should talk about the idea.

Discussion

Once a second is made, the chairperson of the meeting should repeat the motion and then ask if the members want to discuss it. There are a few secondary (procedural) motions where discussion is not permitted, but discussion is allowed on all main motions.

Typically, the chairperson should say the following words, or something similar, to invite discussion: “It has been moved and seconded that the church repave the parking lot. Is there any discussion?”

To participate in discussion, members should seek recognition by raising their hands or coming to a microphone, then wait for the chairperson to recognize them, and then state their comments in favor of or in opposition to the motion that is before the group. Often, the chairperson will alternate between individuals in favor and in opposition.

According to Robert’s Rules of Order Newly Revised, the most well-known parliamentary authority and the rulebook most commonly used by churches, members can speak only two times, for ten minutes each time, on any issue, but alternative discussion limits can be adopted via the setting of special rules. After each speaker, the chairperson’s response to the member’s comments should simply be, “Thank you. Is there any further discussion?”

Ideally, the chairperson will keep his or her own views private. But to participate in the discussion, the chairperson should ask someone else to preside over that motion through the discussion and the vote.

Vote

When there is no more discussion on a motion, the chairperson should take a vote. Once a vote is taken and the results are tabulated, that is the group’s decision on that topic. If the motion is adopted, the group should proceed with the action proposed in the motion. If the motion is defeated, the group should continue with the status quo.

As for whether a topic can ever be proposed again if it is defeated, common business meeting procedure says that the topic is off limits until enough time has passed or circumstances have changed to allow the topic to essentially be a new one. In other words, a topic cannot be proposed and re-proposed because such continued discussion wastes the group’s time.

How do secondary motions work?

Secondary motions are motions that relate to the procedure of a group’s meetings. They are typically (but not always) made while a main motion is being discussed. Here are three examples of secondary motions.

  • Amend. A proposal to change the words of the motion that the group is discussing
  • Previous Question. A proposal to close discussion on a motion that the group is discussing and move directly to a vote on that motion with no further discussion (for additional insights, see my article, “4 Answers to Your Questions about ‘Previous Question,’” on The Law of Order blog)
  • Refer to Committee. A proposal to refer a main motion to a smaller group for research and in‑depth discussion so that they can make a recommendation on a course of action to the full group

If a secondary motion is made while a main motion is being discussed, the secondary motion becomes the highest priority for the group, and the group must discuss and vote on that secondary motion before it goes back to the main motion. Here are three examples using the secondary motions listed above.

Example 1: Motion to Amend. While a group is discussing a main motion to repave the church parking lot, a member thinks that perhaps the church could improve the parking lot a little and go to less expense if it just relined the parking spaces. He or she could seek recognition and say, “I move to amend the main motion by striking ‘repave’ and inserting ‘reline.’”

This amendment would need to be seconded, and then the group would discuss and vote on whether to strike “repave” and insert “reline.” If the amendment is adopted, the group would then go back to discussing the main motion as amended. If the amendment is defeated, the group would go back to discuss the main motion as originally stated.

Example 2: Previous Question. While a group is discussing a main motion to repave the church parking lot, a member thinks that the discussion has gone on too long and the group needs to move business along. He or she could seek recognition and say, “I move the previous question.”

This motion (Previous Question) would need to be seconded, and then the group would vote on whether to stop discussing the main motion and move directly to a vote. The group would then vote on whether to stop discussing the main motion.

Unlike with most motions, the group would not discuss whether to stop discussing. And, for adoption of the motion to stop discussing, at least two-thirds of the members voting must vote in favor. If the motion to stop discussing is adopted, the group would move directly to a vote on the main motion with no more discussion. If the motion to stop discussing is defeated, the group would continue discussing the main motion.

Example 3: Refer to Committee. While a group is discussing a main motion to repave the church parking lot, a member thinks that perhaps the building committee should request proposals from different paving companies and research the overall pros and cons of the project. He or she could seek recognition and say, “I move to refer the main motion to the building committee to research the costs and benefits of the proposal and report back at the next regular business meeting.”

This motion (Refer to Committee) would need to be seconded, and then the group would discuss and vote on whether to refer the main motion to the building committee. If the motion to refer is adopted, the main motion would be referred to the building committee, and the group could move to discussion of a new topic. If the motion to refer is defeated, the group would go back to discussing the main motion as proposed.

Return to the series homepage.

For related infographics and downloadable resources from the author, visit The Law of Order blog at civility.co.

Sarah E. Merkle is a professional parliamentarian and presiding officer. One of five lawyers worldwide to have earned the credentials Certified Professional Parliamentarian-Teacher (CPP-T) and Professional Registered Parliamentarian (PRP), she helps boards, associations, corporations, and public bodies navigate rules applicable to governance and business meetings.

Part 1 of 5

Preparing for a Church Business Meeting

How to structure effective, legally sound meetings—and set their agendas.

It’s probably safe to say that business meetings are not a church calendar highlight for most staff and church members. Perhaps you view them as necessary but burdensome, and maybe the thought of preparing for one makes you cringe or even panic. Well, be encouraged.

This article aims to help leaders simplify business meetings and streamline the preparation. Let’s dive in by considering three key questions.

Church business meetings take place any time church members, boards, or committees get together to conduct official church business—from annual member meetings to weekly or periodic board or committee meetings where votes are taken and decisions are made.

What documents and rules govern a church business meeting?

The first step in preparing for a church business meeting is understanding the documents and rules that apply to the timing and format of a church meeting, as well as the specific matters to be covered.

Consider the following three points:

  • The law in your state that governs nonprofits likely includes certain rules about how often the board and members should meet, how to give notice of meetings, and how to take votes.These rules can be mandatory, or they can apply only if not contradicted or qualified by a church’s bylaws. In some states, they apply only to churches that are incorporated. The laws vary from state to state, but every church would do well to designate at least one staff member or church member to become familiar with the law that applies.
  • After state law, your church’s constitution and bylaws are the authority for business meetings.
  • Where the church’s constitution and bylaws are silent, the parliamentary authority that your church has chosen applies next.Robert’s Rules of Order Newly Revised is the most common parliamentary authority used by churches, and it covers topics such as the process for making, discussing, and voting on proposals, and the methods by which nominations are made and elections are conducted.If your church has not chosen to follow a specific parliamentary authority, it should consider doing so, or it should adopt a set of its own rules that address the details of how business is conducted at a meeting and how elections occur.

What should a church business meeting agenda include?

The contents of the agenda should be guided by the church bylaws. First, do the bylaws outline quarterly business meetings or an annual meeting only? What do the bylaws say about when a church budget is approved or how deacons, elders, and other church leaders are elected?

Becoming familiar with the bylaws is the first step in determining the timing of business meetings and the necessary topics that should be covered.

Outside of matters specifically designated for member input and voting, a church business meeting agenda should include the following items:

  • approval of the minutes from the last meeting
  • a financial update
  • reports on key areas of focus for the quarter or year

How should a church business meeting agenda be organized?

There are three main categories in a business meeting agenda: preliminary items, reports, and substantive business.

  • Preliminary items include adoption of the agenda and approval of the minutes from the previous meeting.
  • Reports include updates from individuals, task forces, focus groups, and committees on the topics assigned to them.
  • Substantive business includes the consideration of any proposals brought by an individual or group.

Unfortunately, business meeting agendas are often created by following a template of sorts from previous meetings, without much strategic thought as to the priorities of the church or the attention span of the individuals attending the meetings. Here is some guidance for improving your business meeting agendas.

  • Putting preliminary items at the beginning makes sense because the group needs to agree on the agenda and the record of what has happened at previous meetings before proceeding further.
  • After preliminary items are dealt with, however, the remainder of the agenda should be structured according to the church’s priorities as a whole and for that specific meeting. The following scenarios describe possible processes for considering and deciding on agenda priorities:

Scenario 1. Are finances generally top of mind for leadership because of recent giving trends? Or have there been some unexpected, significant expenses for the church in the last quarter? Or is there an ongoing giving campaign for a certain special fund? If finances take precedence over other areas of concern, you might consider putting the financial update at the beginning of the agenda.

Scenario 2. On the other hand, maybe there’s no notable financial update, and instead, the church needs to hear from the building or facilities committee about plans to expand or make updates to the property. If so, then this would be placed high on the agenda.

Scenario 3. Or perhaps the pastor search committee should provide a report first since this is a next big step for the church this year, and the church property concerns are not imminent. If so, the search committee update would come ahead of the property one.

The point is that the order of the agenda should be driven by the present needs of the church, not by what’s been done in the past.

Key point. There is a tendency in many organizations to save the most important topics for the end of the agenda. Maybe this is done in an effort to ensure people stay to the end or to help members focus on the important items by taking care of everything else first.

Whatever the reason, this agenda order typically does not serve the group well because members are often too tired or unable to stay the full length of the meeting to actually participate in that critical part of the church’s business. Putting the important topics at the top of the agenda can help ensure the church makes headway on matters of priority.

Return to the series homepage.

For related infographics and downloadable resources from the author, visit The Law of Order blog at civility.co.

Sarah E. Merkle is a professional parliamentarian and presiding officer. One of five lawyers worldwide to have earned the credentials Certified Professional Parliamentarian-Teacher (CPP-T) and Professional Registered Parliamentarian (PRP), she helps boards, associations, corporations, and public bodies navigate rules applicable to governance and business meetings.

Part 5 of 6

Title VII and Church Employment Practices

How the Supreme Court’s interpretation of Title VII’s term “sex” affects church employment.

Title VII of the Civil Rights Act of 1964 protects workers from discrimination based on race, color, religion, sex, or national origin. Since Title VII’s inception, the statute has included an exemption for “religious organizations.”

This exemption became more critical for many churches after the US Supreme Court recently interpreted Title VII’s term “sex” to include sexual orientation, sexual perception, gender identity, and transgender individuals (Bostock v. Clayton County, 140 S. Ct. 1731 (2020). But, the Supreme Court stated that its decision should not apply to religious organizations.

The Court’s words regarding the religious exemption bring little comfort to many in the religious community. But the Court did not indicate how it might rule regarding the religious exemption and the new definition of “sex.” Churches and the courts had already struggled with the application of the exemption for religious organizations. Now they face greater challenges in determining its application to the employment practices of religious organizations, especially when it comes to the new definition of “sex,” if compliance with the new definition violates their religious beliefs.

This article examines the scope of this exemption and explores how the statute applies to churches and religious ministries.

History of Title VII

In 1963, President Kennedy asked Congress to pass comprehensive civil rights legislation, and the Civil Rights Act of 1964 was passed the following year. The statute protected voting rights and prohibited discrimination in federal programs and public accommodations.

The Civil Rights Act was controversial from its initial drafting, with many in Congress opposing one part or another. Like many other difficult-to-pass bills, the bill was altered to gain enough congressional support to make it into law. For example, since the Tenth Amendment of the US Constitution limits the federal authority to matters of interstate commerce, Title VII was limited to employers engaged in interstate commerce with 15 or more employees for each workday during 20 weeks of a calendar year (42 U.S.C. § 2000e-2(a), et seq).

Note. The italics used in the quoted matter in the following section have been added for emphasis.

Another sticking point was its application to churches and other religious employers. The First Amendment of the US Constitution prohibits Congress from passing statutes restricting the free exercise of religion. The House Judiciary Committee requested a complete exemption for religious organizations from Title VII to reflect this constitutional requirement. The Senate disagreed, believing the request was broader than necessary under the First Amendment.

The Senate changed the exemption to read:

[Title VII] shall not apply … to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such[organization] of its religious activities.

Afterward, the House agreed to the amended exemption, and President Johnson signed the Civil Rights Act into law.

But problems immediately arose in the enforcement of the religious exemption. The US Department of Labor (DOL) interpreted the exemption to apply only to members of that religious group employed to perform religious activities. This interpretation forced the DOL to decide what activities were religious and how many religious activities were required before the exemption could be applied to a specific position.

Congress reconsidered the religious organization exemption in 1972. The issue arose in the creation of the Equal Employment Opportunity Commission (EEOC). After failing to secure a complete exemption as the House had initially wanted, the final bill deleted the word “religious” before the word “activities” in the statute.

Currently, Title VII states that it “shall not apply … to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such … [organization] of its activities” (42 U.S.C. § 2000e-1(a)).

The United States Congress Conference Report after the 1972 amendment stated:

The limited exemption … for religious corporations, associations, educational institutions or societies has been broadened to allow such entities to employ individuals of a particular religion in all their activities instead of the present limitation to religious activities.

The Conference Report also noted, however, that religious organizations “remain subject to the provisions of Title VII with regard to race, color, sex or national origin.”

What qualifies as a religious organization for a Title VII exemption?

Because Congress has not intervened since 1972, the courts have been required to create tests and criteria to determine a “religious organization” for Title VII’s exemption. Without congressional guidance, interpretation of this exemption has been subject to wildly different interpretations by the DOL, the EEOC, law professors, and the courts. Even within some judicial districts, the judges do not interpret the exemption consistently. No universally accepted definition exists to identify a religious organization used in Title VII.

No single test exists, and no test is used universally for determining whether an entity qualifies as a religious organization. An IRS determination that the organization has church status has little or no bearing on whether the organization meets the Title VII religious organization test because the tests are different. After making that observation, the courts will typically look at, and weigh, one or more of these factors:

  1. whether the entity operates for a profit,
  2. whether it produces a secular product,
  3. whether the entity’s articles of incorporation or other pertinent documents state a religious purpose,
  4. whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue,
  5. whether a formally religious entity participates in the [entity’s] management, for instance, by having representatives on the board of trustees,
  6. whether the entity holds itself out to the public as secular or sectarian,
  7. whether the entity regularly includes prayer or other forms of worship in its activities,
  8. whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and
  9. whether its membership is made up of coreligionists.

LeBoon v. Lancaster Jewish Community Center, 503 F.3d 217, 226 (3d Cir. 2007).

While traditional churches may easily qualify, parachurch ministries have more difficulty. For example, the US Supreme Court rejected an appeal from the Washington Supreme Court, finding the state exemption from its state nondiscrimination statute for “religious organizations” did not protect the Seattle Gospel Mission from liability for failing to hire an attorney in a same-sex marriage case (Seattle Gospel Mission v. Woods, 142 S.Ct. 1094 (2022)).

Likewise, another court found that a downtown mission organization was not a religious organization for Title VII because it was not affiliated with a particular denomination or church (Scaffidi v. New Orleans Mission, 2020 WL 1531266 (E.D. La. 2020)).

In contrast, the Ninth Circuit Court of Appeals held that World Vision qualified for the religious organization exemption from Title VII. In a 2–1 decision, the court held that World Vision could terminate three employees because they changed their religious beliefs (Spencer v. World Vision, Inc., 619 F.3d 1109 (9th Cir. 2010)).

But the three judges could not agree on the test to evaluate whether an entity meets the definition of a religious organization. The dissenting judge would have limited the exemption to organizations that gather members together for prayer and religious instruction.

One of the judges affirmed World Vision’s status under this test:

(1) does the organization self-identify as a religious organization in its governing documents?

(2) does the organization engage in religious activities to further its religious purposes, and

(3) does it hold itself out to the public as a religious organization?

The other affirming judge added another factor to the above three-item list: Does the organization not engage in the exchange of goods and services for money?

From these brief examples, one can conclude that churches and parachurch ministries should examine the nine criteria listed above and determine how they can best meet the criteria if they plan to seek an exemption from Title VII. At a minimum, they should review their governing documents, incorporate a statement of beliefs into governance documents and policies, and represent to the public that they are a religious organization.

Title VII’s application

Once an organization believes it meets the qualifications required to be classified as a religious organization, it must determine what portion of Title VII’s nondiscrimination provisions apply.

An examination of the applicable court cases reveals three plausible, but inconsistent, interpretations (discussed below).

Understanding the foundation for various interpretations requires some basic understanding of the rules for statutory interpretation. All three interpretations utilize differing rules for statutory interpretation to reach different conclusions.

Since the US Supreme Court has not instructed the lower courts on the correct or preferred way to interpret the Title VII religious organization exemption, each court is free to interpret the statute using the US Supreme Court rules for statutory interpretation.

The US Supreme Court has adopted a general guide to statutory interpretation for use by the lower courts. A complete review of the statutory interpretation rules isn’t possible for this article, but a few relevant rules should be noted.

First, the law should be given its plain meaning whenever possible.

Second, plain meaning should not be used if the language is ambiguous. Ambiguous means a reader could reasonably interpret the language in two or more ways.

If the language is ambiguous, the court should interpret the statute to give effect to every word because every word has a purpose.

If the statute remains ambiguous, the court should choose the interpretation to implement the congressional intent based on the legislative history.

Here, then, is a discussion of each interpretation and what each one might mean for a court’s decision.

Note. The italics used in the quoted matter in this section have been added for emphasis.

Interpretation 1: Textual or religiously motivated interpretation

The first interpretation is called the textual or religiously motivated interpretation. It indicates that the statute’s plain meaning requires that no part of Title VII applies to the employment practices of religious organizations.

Key point. This interpretation utilizes the first statutory interpretation rule: The statute should be given its plain meaning whenever possible.

The plain language of Title VII states that it “shall not apply … to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such … [organization] of its activities” (42 U.S.C. § 2000e-1(a)). If this interpretation is utilized, no other rules of statutory interpretation apply.

Under this interpretation, none of Title VII applies to the religious organization. A church is free to discriminate regarding applicants and employees based on race, color, religion, sex, or national origin. Based on this interpretation, if the church chooses not to hire a woman for a position because she is a woman, it is free to do so.

However, Congress has twice considered—and rejected—a blanket exemption for religious organizations. If a court found that the statute is ambiguous, the congressional rejection of this interpretation could invalidate this interpretation. Further, this interpretation potentially ignores the “employment of individuals of a particular religion” language.

Example. In 2023, the Fifth Circuit Court of Appeals left intact a lower court’s ruling in which it used the textual or religiously motivated interpretation method to find that Bear Creek Bible Church was exempt from Title VII as a religious organization (Briarwood Management, Inc. v. EEOC, ____ F.3d _______ (5th Cir. 2023)). This decision means the church could discriminate based on sexual orientation, sexual perception, gender identity, and transgender status without violating Title VII. The Fifth Circuit panel also ruled that the church could have different dress codes for men and women and require that employees use the bathroom associated with their biological gender.

Interpretation 2: The coreligionist interpretation

The second interpretation, the coreligionist interpretation, indicates that religious organizations may refuse to hire anyone not part of their denomination or church group.

Key point. This interpretation allows religious organizations to restrict employment to their denomination or church group.

The plain language of Title VII states that it “shall not apply … to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such … [organization] of its activities” (42 U.S.C. § 2000e-1(a)).

Some courts believe this language is ambiguous because it does not explicitly address how the exemption applies to the other protected classes. Some courts then looked at the legislative history. The 1972 amendment to Title VII added a statutory definition of religion. It states, “The term “religion” includes all aspects of religious observance and practice, as well as belief” (42 U.S.C. § 2000e-1(j)).

The authors of the 1972 amendment claimed the new language was to protect the religious rights of employees—not to expand the religious exemption of employers. Supposedly, the amended statute protected all religious organization employees instead of only those involved in religious activity.

Some courts have used this background in interpreting the Title VII religious organization exemption to prevent the application of Title VII to religious organizations only employing individuals who are part of the same denomination or church group.

This interpretation means that a Baptist church can require all its employees to be Baptist. It can also terminate an employee for failing to adhere to Baptist beliefs. It can refuse to hire Methodists. But the Baptist church must not discriminate against the other Title VII protected classes unless its discrimination is related to the church’s sincerely held religious beliefs.

Caution. All violations of such beliefs should provide comparable disciplinary actions. The inconsistent application of variances from their religious beliefs could lead a church into a potential Title VII violation if one of the protected classes is involved.

The US Supreme Court used this interpretation to allow a church to fire a gym worker at a facility owned by the church for failing to adhere to church beliefs and requirements (Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987)).

The Ninth Circuit Court of Appeals has affirmed this approach twice. The Fourth Circuit Court of Appeals has also adopted this approach.

Interpretation 3: Belief and conduct interpretation

The third interpretation, called the belief and conduct interpretation, indicates that religious employers may discriminate based on religious beliefs as long those beliefs do not contradict the other protected classes of race, color, sex, or national origin.

Key point. This line of interpretation rejects the coreligionist and textual interpretation cases.

With the addition of the definition of religion, some courts believe that the artificial lines of church association were eliminated. Accordingly, no statutory basis exists for limiting the religious organization exemption to those who employ only individuals that are part of the denomination or church group.

Since the purpose of Title VII is to protect workers from specific types of discrimination, the exclusions from its coverage should be narrowly interpreted. These courts’ interpretation means that religious organizations may discriminate only based on the employee’s self-identified religious beliefs and practices that vary from the employing religious organization—and only if those beliefs do not relate to another Title VII protected class.

Example. A court affirmed the right of a Christian school owned and operated by a church to terminate a teacher who remarried after a divorce, contrary to the church’s teaching.

While the teacher was not of the same faith as the employer, she had agreed to follow the church’s teachings and beliefs while employed by the school. Since the teacher’s religious beliefs differed from the employer’s and were evidenced by her actions, the school could terminate her because it met the definition of a religious educational employer (Little v. Wuerl, 929 F.2d 944 (3d Cir. 1991).

With this interpretation, all potential applicants must review the organization’s religious beliefs before applying for the job and determine if such beliefs align with the applicants’ beliefs. Religious organizations may require potential applicants to take this step before applying for a position to attempt to come into alignment with this interpretation.

Suggestions for determining how to comply

Each church must determine how it will comply with Title VII. Here are four suggestions.

Purchase employment practices liability insurance

Every church with 15 or more employees should purchase employment practices liability insurance. This insurance benefits the church in two ways. First, it provides access to the insurance company’s risk management employment attorneys and HR professionals. Second, the insurance company will assist with the defense should an employee claim a Title VII violation. The policy should also cover employment related claims under the state equivalent of Title VII.

Identify ministerial exception positions

The church or ministry should distinguish and document ministerial exception positions from every other position. Since Title VII does not apply to the ministerial exception positions, the church does not face Title VII risk with those positions. (For more on this subject, see “Applying the Ministerial Exception to Church Employees.”

Review all pertinent documents

The church should review its governance documents, EEOC statements made by the church, the church’s employee handbook, and the church’s employment-related policies. If the EEOC statement includes “religion” as a protected class, the church will have a hard time claiming that it may discriminate based on religion. Further, the church should qualify its EEOC statement to say the church follows Title VII only to the extent that Title VII applies to it.

Require employment applicants to agree with the church’s beliefs statement

The church should require all potential applicants to agree with the church’s statement of beliefs before applying for any position. The employee handbook and employment policies should require employees to follow the church’s sincerely held beliefs and disciplinary action should occur for all identified violations. This practice will isolate the Title VII issue to religious discrimination. Religious discrimination cases without considering the other protected classes will likely be easier to defend.

Preparation creates clarity in employment practices

Title VII may or may not apply to the church or a religious ministry. Title VII may or may not apply to some employment positions. With this statute, it is not always clear. And similar state employment laws may include a different definition of religious organization and protected classes of employees.

Preparation creates clarity for employment decisions, so a church or ministry must decide its risk tolerance, especially when the church’s sincerely held religious beliefs conflict with Title VII’s protected classes of employees. The church must also indicate whether it believes Title VII applies to all nonministerial exception positions. As part of its determination, every church should engage competent legal counsel to assist in drafting employment practices consistent with its religious beliefs.

Return to series home page.

Frank Sommerville is a both a CPA and attorney, and a longtime Editorial Advisor for Church Law & Tax.

October Key Tax Dates 2022

Deadline for church employees with six-month extensions for filing 2021 tax returns—and other key dates to note.

Monthly Requirements

If your church or organization reported withheld taxes of $50,000 or less during the most recent lookback period (for 2022 the lookback period is July 1, 2020, through June 30, 2021), then withheld payroll taxes are deposited monthly. Monthly deposits are due by the 15th day of the following month.

Note, however, that if withheld taxes are less than $2,500 at the end of any calendar quarter (March 31, June 30, September 30, or December 31), the church need not deposit the taxes. Instead, it can pay the total withheld taxes directly to the IRS with its quarterly Form 941. Withheld taxes include federal income taxes withheld from the employee’s wages, the employee’s share of Social Security and Medicare taxes, and the employer’s share of Social Security and Medicare taxes.

Semiweekly requirements

If your church or organization reported withheld taxes of more than $50,000 during the most recent lookback period (for 2022 the lookback period is July 1, 2020, through June 30, 2021), then the withheld payroll taxes are deposited semiweekly.

This means that for paydays falling on Wednesday, Thursday, or Friday, the payroll taxes must be deposited on or by the following Wednesday. For all other paydays, the payroll taxes must be deposited on the Friday following the payday.

Note further that large employers having withheld taxes of $100,000 or more at the end of any day must deposit the taxes by the next banking day. The deposit days are based on the timing of the employer’s payroll. Withheld taxes include federal income taxes withheld from the employee’s wages, the employee’s share of Social Security and Medicare taxes, and the employer’s share of Social Security and Medicare taxes.

October 17, 2022: Form 1040 due for taxpayers who filed for a six-month extension

Last day to file a 2021 federal income tax return (Form 1040) for taxpayers who obtained an automatic six-month extension by filing a Form 4868 by April 18, 2022 (April 19 if you live in Maine or Massachusetts).

October 30, 2022: File employer exemption (Form 8274)

Churches hiring their first nonminister employee between July 1 and September 30 may exempt themselves from the employer’s share of FICA (Social Security) taxes by filing Form 8274 by this date. (Nonminister employees are thereafter treated as self-employed for Social Security purposes).

The exemption is only available to churches that are opposed on the basis of religious principles to paying the employer’s share of FICA taxes.

October 31, 2022: File quarterly federal tax return (Form 941) with payment

Churches having nonminister employees (or one or more ministers who report their federal income taxes as employees and who have elected voluntary withholding) must file an employer’s quarterly federal tax return (Form 941) for the third calendar quarter by this date.

Enclose a check in the total amount of all withheld taxes (withheld income taxes, withheld FICA taxes paid by the employee, and the employer’s share of FICA taxes) if less than $2,500 on September 30, 2022.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

On-Demand Webinar

Handling A Child Abuse Allegation in Your Church

Planning well so that your ministry responds well if the unthinkable ever arises.

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Churches across the country continue to face allegations of child abuse. Real people are behind these allegations- those who file complaints, those who are accused, as well as those in positions of authority who must respond.

In most cases, the gospel in not reflected in the responses. Fallout is significant for everyone involved, and Church leaders must find a way to do better with such high stakes- whether spiritual, mental, relational, or legal.

Watch this video to hear from recognized experts in church leadership and law about responding to allegations, including abuse reporting, investigations, victim care, and more.

Panelists:

Jeff Dalrymple | Executive Director, Evangelical Council For Abuse Prevention

Robert Showers | Attorney & Principal Partner, Simms Showers

Sally Wagenmaker | Attorney & Partner, Wagenmaker & Oberly

Theresa Sidebotham | Attorney & Founder, Telios Law

Reading & Resources: 

Download the resources and templates mentioned in this webinar below. Or read one of the articles to get a handle on the basics of developing fair compensation in your ministry.

Key Tax Dates September 2022

Make quarterly estimated payments and meet monthly or semiweekly requirements.

Monthly requirements

If your church or organization reported withheld taxes of $50,000 or less during the most recent lookback period (for 2022, the lookback period is July 1, 2020, through June 30, 2021), then withheld payroll taxes are deposited monthly. Monthly deposits are due by the 15th day of the following month.

Note, however, that if withheld taxes are less than $2,500 at the end of any calendar quarter (March 31, June 30, September 30, or December 31), the church need not deposit the taxes.

Instead, it can pay the total withheld taxes directly to the IRS with its quarterly Form 941. Withheld taxes include federal income taxes withheld from employee wages, the employee’s share of Social Security and Medicare taxes, and the employer’s share of Social Security and Medicare taxes.

Semiweekly requirements

If your church or organization reported withheld taxes of more than $50,000 during the most recent lookback period (for 2022, the lookback period is July 1, 2020, through June 30, 2021), then the withheld payroll taxes are deposited semiweekly.

This means that for paydays falling on Wednesday, Thursday, or Friday, the payroll taxes must be deposited on or by the following Wednesday. For all other paydays, the payroll taxes must be deposited on the Friday following the payday.

Note further that large employers having withheld taxes of $100,000 or more at the end of any day must deposit the taxes by the next banking day. The deposit days are based on the timing of the employer’s payroll. Withheld taxes include federal income taxes withheld from employee wages, the employee’s share of Social Security and Medicare taxes, and the employer’s share of Social Security and Medicare taxes.

September 15, 2022: Quarterly estimated tax payments for certain employees and churches

Filing for certain ministers and self-employed workers

Ministers (who have not elected voluntary withholding) and self-employed workers must file their third quarterly estimated federal tax payment for 2022 by this date. A similar rule applies in many states to payments of estimated state taxes.

Nonminister employees of churches that filed a timely Form 8274 (waiving the church’s obligation to withhold and pay FICA taxes) are treated as self-employed for Social Security, and as a result are subject to the estimated tax deadlines with respect to their self-employment (Social Security) taxes unless they ask their employing church to withhold an additional amount of income taxes from each paycheck that will be sufficient to cover self-employment taxes. Use a new Form W-4 to make this request (the additional withholding is reported on line 4(c)).

Payments for unrelated business income tax liability

A church must make quarterly estimated tax payments if it expects an unrelated business income tax liability for the year to be $500 or more. Use IRS Form 990-W to figure your estimated taxes. Quarterly estimated tax payments of one-fourth of the total tax liability are due by April 18 (April 19 if you live in Maine or Massachusetts), June 15, September 15, and December 15, 2022, for churches on a calendar-year basis. Deposit quarterly tax payments electronically using the Electronic Federal Tax Payment System (EFTPS).

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

10 Legal and Tax Developments for Churches and Church Staff

Richard Hammar covers what church leaders should know—and anticipate—for the rest of 2022 and into 2023.

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Editor’s Note. This video is exclusive to Church Law & Tax members only. However, you can sign-up here to watch this video for free.

Each year, attorney and CPA Richard R. Hammar, the co-founder and senior editor of Church Law & Tax, reads and reviews countless cases of relevance to local churches, clergy, and church leaders. This evaluation allows him to identify developing legal, tax, and risk management issues–and pinpoint trends that will affect congregations in the future.

In this recording, Hammar will detail 10 of his most important recent findings. It’s a must-see program for church leaders who want to know what to watch for throughout the remainder of 2022 and into 2023, and perhaps more importantly, to plan and prepare well so that they reduce the legal and risk liabilities their churches may face.

Download the presentation slides here to follow along and take notes as you watch.

Stay up-to-date on Legal Developments and Supreme Court cases affecting churches.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Key Tax Dates August 2022

File employer’s quarterly federal tax return and meet monthly or semiweekly requirements.

Monthly requirements

If your church or organization reported withheld taxes of $50,000 or less during the most recent lookback period (for 2022, the lookback period is July 1, 2020, through June 30, 2021), then withheld payroll taxes are deposited monthly. Monthly deposits are due by the 15th day of the following month.

Note, however, that if withheld taxes are less than $2,500 at the end of any calendar quarter (March 31, June 30, September 30, or December 31), the church or organization need not deposit the taxes.

Instead, it can pay the total withheld taxes directly to the IRS with its quarterly Form 941. Withheld taxes include federal income taxes withheld from employee wages, the employee’s share of Social Security and Medicare taxes, and the employer’s share of Social Security and Medicare taxes.

Semiweekly requirements

If your church or organization reported withheld taxes of more than $50,000 during the most recent lookback period (for 2022, the lookback period is July 1, 2020, through June 30, 2021), then the withheld payroll taxes are deposited semiweekly.

This means that for paydays falling on Wednesday, Thursday, or Friday, the payroll taxes must be deposited on or by the following Wednesday. For all other paydays, the payroll taxes must be deposited on the Friday following the payday.

Note further that large employers having withheld taxes of $100,000 or more at the end of any day must deposit the taxes by the next banking day. The deposit days are based on the timing of the employer’s payroll. Withheld taxes include federal income taxes withheld from employee wages, the employee’s share of Social Security and Medicare taxes, and the employer’s share of Social Security and Medicare taxes.

August 10, 2022: Employer’s quarterly federal tax return—Form 941

Churches having nonminister employees (or one or more ministers who report their federal income taxes as employees and who have elected voluntary withholding) may file their employer’s quarterly federal tax return (Form 941) by this date instead of July 31 if all taxes for the second calendar quarter have been deposited in full and on time.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Postgame Prayers Protected by First Amendment, Supreme Court Says

Supreme Court says postgame prayers protected by First Amendment while also striking down controversial “Lemon test.”

A school district in the state of Washington claimed a coach’s on-field, postgame prayers violated the First Amendment’s Establishment Clause. In a 6–3 decision handed down in June of 2022, the United States Supreme Court ruled against the district, stating that “a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses.”

Through this ruling, the Court also struck down a controversial, decades-old judicial test created by a 1971 Court decision addressing Establishment Clause cases.

This article will further explore the ramifications of this decision, and what it means for religious liberty.

Background

In 2008, Joseph Kennedy began working as a football coach at Bremerton High School in Bremerton, Washington, after nearly two decades of service in the Marine Corps.

Like many other football players and coaches across the country, Kennedy made it a practice to give “thanks through prayer on the playing field” at the conclusion of each game. In his prayers, Kennedy sought to express gratitude for “what the players had accomplished and for the opportunity to be part of their lives through the game of football.”

After players and coaches shook hands at the end of each game, Kennedy would offer his prayers by taking a knee at the 50-yard line and praying “quietly” for “approximately 30 seconds.”

Initially, Kennedy prayed on his own. But over time, some players asked whether they could pray alongside him. Kennedy responded by saying, “This is a free country. You can do what you want.” The number of players who joined Kennedy eventually grew to include most of the team, at least after some games. Players also invited players from the other teams to join them. Over time, Kennedy began mixing motivational messages with the prayers when players were present.

For more than seven years, no one complained to the Bremerton School District (the “district”) about Kennedy’s prayer activities. The district’s superintendent first learned of them in September of 2015, and immediately sent Kennedy a letter instructing him to cease praying on school property following football games.

Kennedy initially chose to end his prayer activities, then hired an attorney after sensing he had “broken [his] commitment to God.” The attorney wrote on Kennedy’s behalf to school officials, informing them that, because of his “sincerely-held religious beliefs,” Kennedy felt “compelled” to offer a “post-game personal prayer” of thanks at midfield. The letter asked the district to allow Kennedy to continue that “private religious expression” alone.

The district rejected this request and issued Kennedy an ultimatum forbidding him from engaging in “any overt actions” that could “appea[r] to a reasonable observer to endorse . . . prayer . . . while he is on duty as a District-paid coach.” The district did so because it judged that anything less would lead it to violate the First Amendment’s Establishment Clause.

Kennedy prayed briefly and silently after the October 16, 2015, game and was joined by both players from the other team and community members. At the end of the next football game on October 23, 2015, Kennedy prayed at the 50-yard line and was joined by no one. After the next game on October 26, 2015, Kennedy prayed again, and while he was praying, other adults gathered around him on the field.

Shortly after the October 26 game, the district placed Kennedy on paid administrative leave and prohibited him from “participat[ing], in any capacity, in . . . football program activities.”

In a letter explaining the reasons for this disciplinary action, the superintendent criticized Kennedy for engaging in “public and demonstrative religious conduct while still on duty as an assistant coach” by offering a prayer following the games on October 16, 23, and 26. The letter did not allege that Kennedy performed these prayers with students, and it acknowledged that his prayers took place while students were engaged in unrelated postgame activities.

In an October 28, 2015, Q&A document provided to the public, the district admitted that it possessed “no evidence that students have been directly coerced to pray with Kennedy.”­

The Q&A also acknowledged that Kennedy “had complied” with the district’s instruction to refrain from his “prior practices of leading players in a post-game prayer immediately following games.” But the Q&A asserted that the district could not allow Kennedy to “engage in a public religious display.” Otherwise, the district would “violate the . . . Establishment Clause” because “reasonable . . . students and attendees” might perceive the “District [as] endors[ing] . . . religion.”

While Kennedy received “uniformly positive evaluations” every year from the district, he received a poor performance evaluation after the 2015 season ended.

The evaluation advised against rehiring Kennedy on the ground that he “failed to follow District policy” regarding religious expression and “failed to supervise student-athletes after games.” Kennedy did not return for the next season.

The Supreme Court addresses Free Speech and Free Exercise Clauses

After these events, Kennedy sued in federal court, alleging that the district’s actions violated the First Amendment’s Free Speech Clause, as well as its Free Exercise Clause. The federal district court and a court of appeals both ruled against Kennedy. The United States Supreme Court agreed to hear the case.

The Court began its opinion by noting:

Under this Court’s precedents, a plaintiff bears certain burdens to demonstrate an infringement of his rights under the Free Exercise and Free Speech Clauses. If the plaintiff carries these burdens, the focus then shifts to the defendant to show that its actions were nonetheless justified and tailored consistent with the demands of our case law.

Free exercise

The Supreme Court noted that a plaintiff may carry the burden of proving a free exercise violation in two ways.

First, the plaintiff may carry the burden by showing that “official expressions of hostility” to religion accompany laws or policies burdening religious exercise. In such cases the courts will “‘set aside’” such policies without further inquiry.” To illustrate, in 2018, the Supreme Court overturned a Colorado Civil Rights Commission ruling fining a Christian baker for refusing to bake a cake for a same-sex wedding because of hostility to religion. One of the commission members had referred to Christianity as “irrational” and comparable to slavery and the holocaust. Masterpiece Cakeshop v. Civil Rights Commission, 138 S.Ct. 1719 (2018).

Second, the plaintiff may carry the burden by showing that a government entity has burdened his or her sincere religious practice pursuant to a policy that is “not neutral” or “generally applicable.” Should a plaintiff make such a showing, the Supreme Court will find a First Amendment violation unless the government can satisfy “strict scrutiny” by demonstrating its course was justified by “a compelling state interest and was narrowly tailored in pursuit of that interest.”

The Court concluded that Kennedy met this second method of proving a violation of the Free Exercise Clause:

In this case, the District’s challenged policies were neither neutral nor generally applicable. By its own admission, the District sought to restrict Mr. Kennedy’s actions at least in part because of their religious character. . . [and t]he District further explained that it could not allow “an employee, while still on duty, to engage in religious conduct (emphasis added). Prohibiting a religious practice was thus the District’s unquestioned object. The District candidly acknowledged as much . . . conceding that its policies were “not neutral” toward religion.

Free speech

Kennedy also asserted that the district’s restrictions on his religious activities amounted to an unconstitutional violation of the First Amendment’s Free Speech Clause.

The Court asked, “Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District?” Only if the latter existed would the prayers be subject to government prohibition. The Court concluded:

[I]t seems clear to us that Mr. Kennedy has demonstrated that his speech was private speech, not government speech. When Mr. Kennedy uttered the . . . prayers that resulted in his suspension, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. He did not speak pursuant to government policy. He was not seeking to convey a government-created message. He was not instructing players, discussing strategy, encouraging better on-field performance, or engaged in any other speech the District paid him to produce as a coach. Simply put: Mr. Kennedy’s prayers did not ow[e their] existence” to Mr. Kennedy’s responsibilities as a public employee.

The timing and circumstances of Mr. Kennedy’s prayers confirm the point. During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters—everything from checking sports scores on their phones to greeting friends and family in the stands.

The Court concluded that for the district to prevail, it had to show that its restrictions on Kennedy’s protected rights “serve a compelling interest narrowly tailored to that end.” And this it could not do.

The Court concluded:

Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech.

The Lemon test

Perhaps the most significant development from this case was the Court’s repudiation of the so-called “Lemon test,” named after a 1971 ruling by the Supreme Court. Lemon v. Kurtzman, 403 U.S. 602 (1971). In the 1971 decision, the Court articulated a three‑pronged test for evaluating the constitutionality of government action under the Establishment Clause:

  • First, the statute must have a clearly secular legislative purpose;
  • Second, its principal or primary effect must be one that neither advances nor inhibits religion; and
  • Third, the statute must not foster an excessive governmental entanglement between church and state.

This is the test that state and federal courts have frequently applied in evaluating whether or not a particular governmental accommodation of religion violates the Establishment Clause.

In the case involving Kennedy, the Supreme Court made these observations about the Lemon test:

In time, the approach also came to involve estimations about whether a “reasonable observer” would consider the government’s challenged action an “endorsement” of religion. . . .

[T]he “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot. . . .

The Court has explained that these tests “invited chaos” in lower courts, led to “differing results” in materially identical cases, and created a “minefield” for legislators. . . . This Court has since made plain, too, that the Establishment Clause does not include anything like a “modified heckler’s veto, in which . . . religious activity can be proscribed” based on “perceptions” or “discomfort.” . . . An Establishment Clause violation does not automatically follow whenever a public school or other government entity “fail[s] to censor” private religious speech. Nor does the Clause “compel the government to purchase from the public sphere” anything an objective observer could reasonably infer endorses or “partakes of the religious.”

The Court continued:

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “reference to historical practices and understandings.” “[T]he line” that courts and governments “must draw between the permissible and the impermissible” has to “accord with history and faithfully reflect the understanding of the Founding Fathers.”

Conclusion

This decision reinforces free speech and free exercise protections for individuals who work in government positions.

But perhaps of greatest significance regarding this decision is the overturning of the Lemon test. Many religious practices have fallen victim to the Lemon test over the past several decades that would have been tolerated if not celebrated by the more accommodating analysis announced by the Supreme Court in the Kennedy case. This outcome enhances religious liberty protections going forward.

Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022)

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

Maine’s Tuition Assistance Rule Violated the First Amendment, Supreme Court Says

Maine’s tuition assistance rule barred use of state funds at religious schools, which violated the First Amendment, Court says.

A “nonsectarian” requirement included with a tuition assistance program offered in Maine violated the First Amendment’s Free Exercise of Religion Clause, the United States Supreme Court ruled last month.

The 6–3 decision in Carson v. Makin may make it easier for religious schools nationwide, at least in some cases, to benefit from financial aid made available to use at other public and private schools.

Background

Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition.

Most private schools are eligible to receive the payments, so long as they are “nonsectarian,” meaning the schools are not religious in nature. The requirement raised two questions: Does such a restriction violate the First Amendment’s Free Exercise Clause? And does the absence of such a restriction violate the First Amendment’s Establishment Clause prohibiting state sponsorship of religion?

The Supreme Court concluded the presence of the requirement did violate the Free Exercise Clause, while also finding the absence of the requirement would not violate the Establishment Clause.

The Court said:

A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. . . .

[Justice Breyer’s dissenting opinion] stresses the importance of “government neutrality” when it comes to religious matters, but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.

The Court turned to two past rulings

In reaching its decision, the Court relied on two of its previous decisions—Trinity Lutheran and Espinoza.

Trinity Lutheran Church v. Comer

In Trinity Lutheran Church v. Comer, 137 S.Ct. 2012 (2017), the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires. The Missouri Department of Natural Resources maintained an express policy of denying such grants to any applicant owned or controlled by a church, sect, or other religious entity.

The Trinity Lutheran Church Child Learning Center applied for a grant to resurface its gravel playground, but the department denied funding on the ground that the center was operated by a church. The Court deemed it “unremarkable in light of our prior decisions” to conclude that the Free Exercise Clause did not permit Missouri to “expressly discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”

While it was true that Trinity Lutheran remained “free to continue operating as a church,” it could enjoy that freedom only “at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center [was] otherwise fully qualified.” Such discrimination, the Court said, was “odious to our Constitution” and could not stand.

Espinoza v. Montana Department of Revenue

In Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020), the Supreme Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination,” violated the First Amendment’s Free Exercise of Religion Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing.

The Court observed that “a State need not subsidize private education [but] once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The Court concluded:

Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. . . . The provi­sion plainly excludes schools from government aid solely be­cause of religious status,” [just as in Trinity Lutheran]. . . .

The Free Ex­ercise [of religion] Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqual­ifying the religious from government aid as Montana did here. . . .

[The Constitution] condemns discrimination against religious schools and the families whose children attend them. They are “member[s] of the community too,” and their exclusion from the scholarship program here is “odi­ous to our Constitution” and “cannot stand” (citing Trinity Lutheran).

The Court’s conclusion in Maine

The Court concluded in Maine’s Carson case:

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

What this means for churches

What is the importance of this case? Most importantly, it will allow religious schools nationwide, at least in some cases, to benefit from financial aid made available to other schools (i.e., public and private secular schools).

Religious schools cannot be excluded from such aid solely on the basis of their religious status. As the Court concluded, religious schools are “members of the community too,” and their exclusion from the scholarship program here is “odi­ous to our Constitution” and “cannot stand” (citing Trinity Lu­theran).

This case may contribute to a greater degree of school choice, depending on current and future state-enabling legislation.

Carson v. Makin, 596 U.S. ____ (2022)

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.
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