Many churches have received 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?
This article is the first in a series that addresses the application of various poster requirements to churches under both federal and state law.
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. The federal minimum wage is currently $5.15 an hour. With some exceptions, overtime (“time and one-half”) must be paid for work over forty hours a week. 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/esa).
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 1 and 1/2 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.
Example. A youth pastor is employed full-time by a church, 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).
Example. A church has 6 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 examples.
Example. 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.
Example. 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/esa). 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.
This article first appeared in Church Treasurer Alert, July 2006.