Key Point 8-20. Several federal and state laws require certain employers to display workplace posters in order to inform employees of their rights. Some poster requirements apply to religious organizations, while others do not. Even those that do often require modification to avoid confusion.
Churches often receive ominous and unsolicited advertisements warning them to begin displaying workplace posters or face substantial fines and penalties. These advertisements have created considerable confusion and apprehension among church leaders. Are churches required to display posters? If so, which ones?
A. Poster Requirements Under Federal Law
There are several poster requirements that are imposed by federal law. Those most relevant to churches are summarized below.
1. Minimum Wage and Overtime Pay
The Fair Labor Standards Act is the federal law that contains the minimum wage and overtime pay requirements. More than eighty million American workers are protected (or “covered”) by the FLSA, which is enforced by the Wage and Hour Division of the U.S. Department of Labor.
The minimum wage and overtime pay protections of the FLSA will apply to church employees if their work regularly involves them in interstate commerce. The definition of commerce is very broad, and includes such tasks as typing letters that are sent out-of-state in the mail, making telephone calls to persons located in other states, and traveling to other states in their work. Most church employees will meet this broad definition, and are therefore subject to the protections of the FLSA.
There are certain exceptions that are recognized by the FLSA. For example, administrative, executive, and professional workers are not covered. Generally, these are persons who perform duties specified by the Act, and who are paid on a salary basis of at least $455 per week. In addition, Department of Labor regulations specify that “clergy and religious workers are not covered by the FLSA.” This language indicates that the official position of the DOL is that clergy are not subject to the minimum wage and overtime pay requirements of the FLSA regardless of the amount of their compensation.
Every employer that employs workers subject to the federal minimum wage and overtime pay requirements is required by law to post “a notice explaining the Act … in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy.” You can obtain a free copy of a poster from any local office of the United States Department of Labor (Wage and Hours Division), or by visiting the DOL website (www.dol.gov).
The official poster is very generic, and simply notes the current minimum wage, and informs employees that they have a right to “overtime pay at least one and a half times your regular rate of pay for all hours worked over 40 in a workweek.” The official poster does not address the unique status of ministers under the law. Therefore, use of the official FLSA poster by churches may lead to confusion and a misinterpretation of the law unless properly modified.
Case study. A youth pastor is employed full-time by a church and is paid an annual salary of $20,000. Since he is paid less than $455 per week is he entitled to overtime pay? Department of Labor regulations specify that “clergy and religious workers are not covered by the FLSA.” This language indicates that the official position of the DOL is that clergy are not subject to the minimum wage and overtime pay requirements of the FLSA regardless of the amount of their compensation. The DOL regulations provide a basis for concluding that the FLSA minimum wage and overtime pay requirements do not apply to ministers. This clarification is not mentioned in the official FLSA poster. To the contrary, if the youth pastor read the official FLSA poster, he would assume that the church was legally required to provide him with overtime pay at a rate of one-and-a-half times his regular compensation for hours worked in excess of 40 during the same week.
2. Equal Employment Opportunity
Every employer covered by federal nondiscrimination laws prohibiting employment discrimination based on race, color, sex, national origin, religion, age, equal pay, and disability is required to display on its premises the poster “Equal Employment Opportunity Is the Law.” The poster must be displayed prominently, where it can be readily seen by employees and job applicants. You can obtain a free copy of the poster “Equal Employment Opportunity Is the Law” by contacting any local EEOC office, or by visiting the EEOC website (www.eeoc.gov).
Key Point. To obtain free copies of other federal required posters please contact the U.S. Department of Labor by calling 888-972-7332.
Churches are subject to these laws only if they are engaged in commerce (most are), and have at least 15 employees (20 in the case of the age discrimination law).
Case Study. A church has six employees. It is not subject to federal laws banning employment discrimination based on race, color, sex, national origin, religion, age, equal pay, and disability. It is not required to display on its premises the poster “Equal Employment Opportunity Is the Law.”
The official EEOC poster specifies:
Applicants to and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations are protected under the following Federal laws:
RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN
Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex or national origin.
The Americans with Disabilities Act of 1990, as amended, protects qualified applicants and employees with disabilities from discrimination in hiring, promotion, discharge, pay, job training, fringe benefits, classification, referral, and other aspects of employment on the basis of disability. The law also requires that covered entities provide qualified applicants and employees with disabilities with reasonable accommodations that do not impose undue hardship.
The Age Discrimination in Employment Act of 1967, as amended, protects applicants and employees 40 years of age or older from discrimination on the basis of age in hiring, promotion, discharge, compensation, terms, conditions or privileges of employment.
In addition to sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, as amended (see above), the Equal Pay Act of 1963, as amended, prohibits sex discrimination in payment of wages to women and men performing substantially equal work in the same establishment. Retaliation against a person who files a charge of discrimination, participates in an investigation, or opposes an unlawful employment practice is prohibited by all of these Federal laws. If you believe that you have been discriminated against under any of the above laws, you should contact immediately: The U.S. Equal Employment Opportunity Commission (EEOC), 1801 L Street, N.W., Washington, D.C. 20507 or an EEOC field office by calling toll free (800) 669-4000.
Note that the “official” EEOC poster does not address the unique status of ministers and churches under these laws. In particular, note the following two points:
First, the courts have refused to apply these discrimination laws to the relationship between a church and its pastor. This so-called “ministerial exception” is rooted in the First Amendment guaranty of religious freedom. As one court has noted, in a case involving a dismissed minister’s claim of unlawful discrimination: “This case involves the fundamental question of who will preach from the pulpit of a church, and who will occupy the church parsonage. The bare statement of the question should make obvious the lack of jurisdiction of a civil court. The answer to that question must come from the church.” Minker v. Baltimore Annual Conference of the United Methodist Church, 894 F.2d 1354 (D.C. Cir. 1990).
Second, Title VII and the Americans with Disabilities Act contain specific exemptions for religious employers. Both allow churches to discriminate in many employment decisions on the basis of religion.
Neither of these two unique rules is reflected in the Equal Employment Opportunity Is the Law poster, and so the poster will create confusion if posted in a church without appropriate modifications. Consider the following case studies.
- A church has more than 15 employees, and displays the Equal Opportunity Is the Law poster on its premises. An applicant for a bookkeeping position is rejected because she is a member of a different religious faith. The applicant sees the poster, and notes that covered employers cannot discriminate on the basis of religion. She files a formal complaint of discrimination with a civil rights agency. The complaint is quickly dismissed since the ban on religious discrimination in employment does not apply to a church. This unfounded complaint was filed because the official poster does not address the unique rules that pertain to churches.
- A church has more than 20 employees, and displays the Equal Opportunity Is the Law poster on its premises. The church dismisses a 60-year-old associate pastor, and replaces him with a pastor who is 30 years old. The dismissed pastor on many occasions had reviewed the poster, and is now convinced that his dismissal constitutes age discrimination in violation of federal law. As a result, he files a formal claim of discrimination with a civil rights agency. The complaint is quickly dismissed because of the “ministerial exception” to employment discrimination laws. This unfounded complaint was filed because the official poster does not address the unique rules that pertain to churches and ministers.
3. Employee Polygraph Protection Act
The federal Employee Polygraph Protection Act makes it unlawful for an employer engaged in interstate commerce (regardless of the number of employees) to require or even suggest that an employee or job applicant take a polygraph examination. Federal regulations specify that “every employer subject to the [Act] shall post and keep posted on its premises a notice explaining the Act. … Such notice must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment.” A free copy of the required notice can be obtained from the nearest office of the U.S. Department of Labor, Wage and Hour Division, or by visiting the DOL website (www.dol.gov). The official poster states, in part:
The Employee Polygraph Protection Act prohibits most private employers from using lie detector tests either for pre-employment screening or during the course of employment.
Employers are generally prohibited from requiring or requesting any employee or job applicant to take a lie detector test, and from discharging, disciplining, or discriminating against an employee or prospective employee for refusing to take a test or for exercising other rights under the Act.
The Act permits polygraph testing, subject to restrictions, of certain employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in economic loss to the employer.
Where polygraph tests are permitted, they are subject to numerous strict standards concerning the conduct and length of the test. Examinees have a number of specific rights, including the right to a written notice before testing, the right to refuse or discontinue a test, and the right not to have test results disclosed to unauthorized persons.
The Employee Polygraph Protection Act contains no special rules or exceptions for religious organizations, and so the official poster can be used without modification.
4. Occupational Safety and Health Act (OSHA)
Employers covered by the Occupational Safety and Health Act are required to display a poster prepared by the U.S. Department of Labor summarizing the major provisions of the Act and telling employees how to file a complaint. The newly revised OSHA poster contains the following text:
- You have the right to notify your employer or OSHA about workplace hazards. You may ask OSHA to keep your name confidential.
- You have the right to request an OSHA inspection if you believe that there are unsafe and un-healthful conditions in your workplace. You or your representative may participate in the inspection.
- You can file a complaint with OSHA within 30 days of discrimination by your employer for making safety and health complaints or for exercising your rights under the OSHA Act.
- You have a right to see OSHA citations issued to your employer. Your employer must post the citations at or near the place of the alleged violation.
- Your employer must correct workplace hazards by the date indicated on the citation and must certify that these hazards have been reduced or eliminated.
- You have the right to copies of your medical records or records of your exposure to toxic and harmful substances or conditions.
- Your employer must post this notice in your workplace.
Churches are required to post the OSHA poster if they are covered by the federal Occupational Safety and Health Act. As noted in section 8-19 of this text, religious organizations are only partially subject to OSHA regulations. The official OSHA poster does not take the unique status of churches into account, and may cause confusion unless properly modified.
The OSHA poster can be ordered without charge on the OSHA website (www.osha.gov).
5. Family and Medical Leave Act
The Family and Medical Leave Act provides certain employees with up to 12 weeks of unpaid, “job-protected” leave each year to give birth or to care for a family member, and requires group health benefits to be maintained during the leave as if the employee continued to work instead of taking leave. This law only applies to employers having 50 or more employees.
All covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of the Act and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it.
The official FMLA poster prepared by the Department of Labor is one page long. Here are some of the key provisions:
- FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to “eligible” employees for certain family and medical reasons. Employees are eligible if they have worked for their employer for at least one year, and for 1,250 hours over the previous 12 months, and if there are at least 50 employees within 75 miles.
- Unpaid leave must be granted for any of the following reasons: (1) to care for the employee’s child after birth, or placement for adoption or foster care; (2) to care for the employee’s spouse, son or daughter, or parent who has a serious health condition; or (3) for a serious health condition that makes the employee unable to perform the employee’s job.
- At the employee’s or employer’s option, certain kinds of paid leave may be substituted for unpaid leave.
- The employee may be required to provide advance leave notice and medical certification. Taking of leave may be denied if requirements are not met. The employee ordinarily must provide 30 days’ advance notice when the leave is “foreseeable.” An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer’s expense) and a fitness for duty report to return to work.
- For the duration of FMLA leave, the employer must maintain the employee’s health coverage under any “group health plan.”
- Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.
- The use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.
- FMLA makes it unlawful for any employer to: (1) interfere with, restrain, or deny the exercise of any right provided under FMLA; or (2) discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.
The Family and Medical Leave Act contains no special rules or exceptions for religious organizations, and so the official poster can be used without modification.
You can obtain a free copy of a poster from any local office of the United States Department of Labor, Wage and Hours Division, or by visiting the DOL website (https://www.dol.gov/agencies/whd/posters).
Case study. A church has 20 employees. It is not subject to the Family and Medical Leave Act (which only applies to employers having 50 or more employees). It is not required to display on its premises the Family Medical Leave Act poster.
6. Uniformed Services Employment and Reemployment Rights Act
The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to persons who perform work in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work is considered “service in the uniformed services.”
Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size. Religious employers are not exempt.
In general, an employer must reemploy service members returning from a period of service in the uniformed services if those service members meet five criteria: (1) the person must have held a civilian job; (2) the person must have given notice to the employer that he or she was leaving the job for service in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable; (3) the cumulative period of service must not have exceeded five years; (4) the person must not have been released from service under dishonorable conditions; and (5) the person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment.
USERRA establishes a five-year “cumulative total” on military service with a single employer, with certain exceptions allowed for situations such as callups during emergencies, reserve drills, and annually scheduled active duty for training.
Key Point. USERRA also allows an employee to complete an initial period of active duty that exceeds five years (e.g., enlistees in the Navy’s nuclear power program are required to serve six years).
Employers are required to display a poster explaining the rights, benefits, and obligations of employees and employers under the law. The official USERRA poster published by the Department of Labor contains the following text:
USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.
You have the right to be reemployed in your civilian job if you leave that job to perform service in the uniformed service and:
you ensure that your employer receives advance written or verbal notice of your service;you have five years or less of cumulative service in the uniformed services while with that particular employer;you return to work or apply for reemployment in a timely manner after conclusion of service; andyou have not been separated from service with a disqualifying discharge or under other than honorable conditions.
If you are eligible to be reemployed, you must be restored to the job and benefits you would have attained if you had not been absent due to military service or, in some cases, a comparable job.
RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATION
are a past or present member of the uniformed service;have applied for membership in the uniformed service; orare obligated to serve in the uniformed service;
then an employer may not deny you:
initial employment;reemployment;retention in employment;promotion; orany benefit of employment
- because of this status. In addition, an employer may not retaliate against anyone assisting in the enforcement of USERRA rights, including testifying or making a statement in connection with a proceeding under USERRA, even if that person has no service connection.
HEALTH INSURANCE PROTECTION
If you leave your job to perform military service, you have the right to elect to continue your existing employer-based health plan coverage for you and your dependents for up to 24 months while in the military.Even if you don’t elect to continue coverage during your military service, you have the right to be reinstated in your employer’s health plan when you are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries.
The official USERRA poster can be downloaded or ordered on the Department of Labor website, without charge. There are no special exceptions for religious employers under USERRA, but the so-called “ministerial exception” may prevent the application of this law to ministers. No court has addressed this issue directly.
The official poster contains the following disclaimer that would cover the potential application of the ministerial exception: “The rights listed here may vary depending on the circumstances.”
B. Penalties for Failing to Display a Required Federal Poster
Can pastors and church board members be sent to jail for failing to display a required poster? Can a church that fails to display a required federal poster be assessed a substantial fine or other penalty? Despite what you may have read in the fear-mongering advertisements you have received from private companies offering to sell you a poster that will enable your church to be “in compliance'” with the law, there are few penalties that can be assessed for failing to display a poster. And, the penalties that do exist are insignificant and rarely imposed.
Failure to display a required poster may have consequences besides a fine or penalty. To illustrate, in order for an employee to sue an employer for violating federal discrimination laws, the employee generally must file a “charge” or complaint with the Equal Employment Opportunity Commission (EEOC) within 180 days from the date of the alleged violation (this deadline may be extended to 300 days if the complaint is covered by a state or local nondiscrimination laws). However, several courts have ruled that an employer’s failure to display required workplace posters may extend the time that employees have to file discrimination claims, thereby exposing an employer to potential liability for a protracted period of time. This is a good reason to comply with applicable poster requirements, even if the monetary penalty that can be imposed for noncompliance is minimal.
Case study. A church has 20 employees. It fails to display any workplace posters. An employee files a charge of age discrimination with the EEOC two years after the alleged act of discrimination occurred. The church claims that the claim is barred because it was filed more than 180 days after the alleged act of discrimination. The employee points out that the church failed to display the Department of Labor’s “Equal Employment Opportunity Is the Law” workplace poster. This omission may have the effect of extending the employee’s deadline for filing her discrimination complaint, since she could argue that she was not aware of her rights under the law and could not take advantage of them in a timely manner.
Key Point. No reported court ruling addresses the imposition of fines or other penalties on a church for failure to display a required workplace poster. This does not suggest that churches should disregard poster requirements. Instead, it demonstrates that innocent failures to comply with poster requirements will not necessarily result in fines, penalties, or prison sentences, especially if a church begins to comply with those requirements.
C. Commercially Available Posters
Posters that claim to comply with federal employment laws are available from a number of vendors. Before purchasing one of them, note the following considerations:
- Many of these posters are expensive. Some cost as much as $150 or more for doing nothing more than reproducing the free Department of Labor posters on one large, laminated chart.
- Do not purchase a poster from any vendor that engages in fear tactics or intimidation.
- No commercially available poster that we have seen mentions the special exceptions and rules that apply to churches and clergy as noted in this section. In addition, they often contain information about laws that do not apply to churches. As a result, such posters will often create confusion among church staff members.
Case study. A church has five employees. The church treasurer receives an unsolicited ad warning of substantial fines and penalties for failure to display a workplace poster. The church pays $100 for the poster. The poster presents the same material that is available for free in Department of Labor posters. It includes the Equal Employment Opportunity Is the Law and Family Medical and Leave Act posters, neither of which applies to a church with only five employees.
D. State Law
Many states have their own poster requirements in addition to those mandated by federal law. For example, many states require that employers subject to the following laws post notices described by state law: (1) a state civil rights law; (2) a state minimum wage law; (3) unemployment compensation; and (4) workers compensation. Many states make these posters available free of charge. Also, note that the official posters often do not address the special rules or exemptions that may apply to churches and clergy. We recommend that church leaders contact a local attorney for an explanation of the poster requirements that apply under state or local law.
In summary, some or perhaps all of the poster requirements described in this section may apply to a church, depending on the circumstances. Some churches display a “unified” poster containing the required language under each federal and state law, while others simply display applicable posters copied from federal and state agency websites. In either case, your posters should be accompanied by a notice (prepared by the church) to the effect that the posters do not take into account the special rules and exceptions that apply to churches and clergy.
Tip. Federal posters can be obtained here, https://www.dol.gov/general/topics/posters
Tip. Some churches display the applicable federal and state posters (obtained for free from government websites), and also post a conspicuous notice above or below the posters that cautions employees that the posters do not necessarily reflect the unique legal rules and exceptions that apply to churches and clergy.