Wage and hour laws are generally statutes enacted by states that govern hourly wages, overtime, and other rules. Generally, in addition to the statutes in each state, each state has adopted regulations that further interpret the statutes. Therefore, generalizations about state wage and hour law are problematic. Most states, by statute, regulation or some other means limit the enforcement of wage and hour laws as to church employment. Employees that are “ministerial” are generally not governed by state wage and hour laws. However, determining when an employee is “ministerial” under these state provisions can also be problematic.
In Samano v Temple of Kriya, Slip Op. (ILL. App. 2020), the trial court held that the Plaintiff’s employment was governed by state wage and hour law. The trial court reasoned that the duties of the Plaintiff were more secular than religious. The appellate court reversed. The Plaintiff’s title included her as ministerial staff, she conducted weddings, baptisms, and funerals, even though these were not her primary duties, and she was responsible for disseminating “the spiritual messaging of the defendant temple” to the public. She was responsible for posting religious books, digital versions of sermons, and streaming of yoga as a form of spiritual study. That the defendant charged for some of the materials did not convert all of them from religious to secular. As a result, the regulatory authority’s pronouncements regarding jobs that were considered ministerial could and probably did encompass Plaintiff’s job. The appellate court took guidance from federal decisions exploring the scope of the Ministerial Exception even though the language of state wage and hour laws and regulations were not identical to federal employment laws.
Wage and hour laws will likely be, if the statutory language permits enforcement as to religious entities, enforceable as to clerical and cleaning employees in churches. Whether these statutes will be imposed on the relationship with employees that have secular as well as ministerial duties will remain unclear. Courts that try to determine whether a duty is secular rather than religious will risk entanglement in ecclesiastical issues the First Amendment and the Ministerial Exception were to avoid. Application of the “primary duties” test used in Ministerial Exception cases may further narrow the application of wage and hour laws, too.
Our reports of the United States Supreme Court decisions in Our Lady of Guadalupe School v Morrissey-Berru, 140 S. Ct. 2049 (2020) and Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 565 U.S. 171 (2012) may have suggested that federal employment law claims were barred by the Ministerial Exception. However, while the decision to hire or fire a ministerial employee might be constitutionally protected under these cases, some courts continue to search for actionable theories of recovery against churches in employment matters.
In Demkovich v St. Andrew the Apostle Parrish, Slip Op. (7th Cir. 2020), the United States Court of Appeals for the 7th Circuit decided to adopt an approach similar to the 9th Circuit and rejected the prohibition recognized by the 10th Circuit. The Plaintiff was a music director for two years in a local denominational church. As we have seen in other cases, music directors are generally regarded as ministerial because of their extensive involvement in developing worship services and similar activities. Plaintiff claimed he was fired because of his same sex marriage. He claimed the local church knew of his sexual orientation at hiring but did not reach a decision to terminate until after his same sex marriage while employed became known. Plaintiff claimed that leading up to the firing, he was subjected to hostile “comments and epithets” regarding sexual orientation and that he was “harassed and humiliated” based on “weight and medical issues” (“diabetes and metabolic syndrome”).” The trial court dismissed the claim regarding hostile “comments and epithets” regarding sexual orientation and denied dismissal of the claim regarding comments about weight and medical issues that caused Plaintiff to be ““harassed and humiliated.” The 7th Circuit reversed the dismissal and affirmed the denial of a dismissal and remanded for discovery, other motions, and possibly trial. The 7th Circuit held that while complaining about the termination was prohibited by the Ministerial Exception, complaining about the treatment by a supervisor was not prohibited. The 7th Circuit reasoned that creating a “hostile environment is not essential for management supervision and control of employees” and therefore, not protected by the First Amendment separation doctrine. The local church or denomination, if it knew of the hostile work environment, and failed to act could be found liable. Generally, in creating a “hostile work environment,” the “the behavior of individual coworkers and / or supervisors …is generally treated as outside the scope of employment.”
Church employers can generally avoid these risks by acting definitively and without hesitation to terminate ministerial employees without advising the employee of the reason for the adverse employment action. Churches and denominations are especially prone to delay, deliberation, “tough love,” and internal hand wringing. These actions, even well meaning, will be subjected to spin doctoring, especially if comments or actions are made regarding a Title VII protected class or a disability. Such conduct will be characterized, rightly or wrongly, to describe a “hostile work environment.” Because ministerial employees are inherently insiders, and not volunteers, churches and denominations are tempted to believe erroneously that what is said will remain within the cloister.
In a church tradition or denomination that carefully proscribes who may be a “minister,” “priest,” or “pastor,” persons that assist in worship, sacraments, church schools and other vital roles may not have a title of office that would neatly fit in the Ministerial Exception. Often the question with such employees is whether their role is sufficiently vital to religious services and advancement of the needs of the faith to be considered ministerial even if their title is not clearly related.
In Menard v Archdiocese of Boston, Slip Op. (Mass. 2020), the trial court considered the plaintiff’s employment contract and an article the Plaintiff wrote for the church newsletter in which the Plaintiff described the duties incumbent upon Plaintiff’s position. The consideration led to dismissal of the lawsuit pursuant to the Ministerial Exception. The appellate court affirmed. The Plaintiff was a Director of Music Ministries and could not be a priest or pastor. But, her duties as Director of Music “presuppose a significant knowledge of her faith’s musical canon, and the ability to transmit that knowledge and “convey the Church’s message.”” The decision was based on the newest United States Supreme Court pronouncement in Our Lady of Guadalupe Sch. v Morrissey-Berru, U.S. Supreme Ct., Nos. 19-267 & 19-348, slip op. at 18 (July 8, 2020) which taught that “what matters, at bottom, is what an employee does.”
In cases of this type an employment contract is an invaluable documentation of the religious and secular duties of the employee. In this case, because the employee was of some longevity, the employee wrote a church newsletter article that dovetailed with the contract and explained the duties in the Plaintiff’s own words. Church newsletters are often invaluable sources of this type of information. Oddly, many churches do not keep file copies (paper or digital).
Even in light of recent Supreme Court decisions regarding federal employment claims against churches and parachurch organizations, some common law tort claims remain actionable against churches. We have reported many times regarding defamation claims. Defamation that is solely internal in the organization or in the web of organizations that make up a denominational authority is not likely to remain actionable long if it is at all. Defamation between different organizations in the same denomination, or to outsiders, may or may not be the foundation of viable claims.
In McRaney v North American Mission Board, Southern Baptist Convention, Slip Op. (5th Cir. 2020), the United States Court of Appeals for the 5th Circuit reversed the dismissal entered by the trial court. The Court of Appeals held that the dismissal was premature because the Complaint, the first document in a federal civil lawsuit, stated a civil claim and did not on its face appear to raise ecclesiastical issues. Also, the case was not brought as an employment claim. The only theories of recovery espoused were for intentional interference with business relationships, defamation, and intentional infliction of emotional distress. The Plaintiff was formerly employed as the Executive Director of the General Mission Board of Maryland / Delaware. The Plaintiff alleged the Defendant made false statements about him that caused him to be fired from his position, caused him to be “uninvited” to speak at a large mission symposium, and posted a picture of him at the Defendant’s offices to malign him. On remand, discovery may still lead to dismissal of the case by motion for summary judgment, in which more may be considered than merely the contents up to the four corners of the Complaint.
The lesson to be learned is that there are litigation risks other than wrongful termination and federal employment law claims. While defamation cases are rarely successful, churches communicating negative information about a former employee to a prospective new employer should do so only to protect the public good rather than merely because an employee fell out of favor or left hard feelings.