Category: Uncategorized

CHURCH MORALITY LAWSUITS

Church employees that run afoul of basic moral tenets of church employers are often terminated. Whether this is good church policy or not depends on the situation and depends on the alternatives available. Unfortunately, sometimes it is a financial question because some members may not want their offerings used to deal with the consequences of sin in others who fail to hide the sin.

In Kelley v Decatur Baptist Church, Memorandum and Order (ND Ala., NE Div. 2018), the federal district court did not dismiss the Plaintiff’s case because the Plaintiff alleged she was terminated because she was pregnant in violation of Title VII. She also alleged she was a “maintenance” and child daycare employee. The church alleged the pregnancy was out of wed lock and that the Plaintiff “sowed discord” among the daycare employees, neither reason being governed by Title VII. The church also asserted the first reason for termination was driven by beliefs protected by the Ecclesiastical Abstention Doctrine and the Ministerial Exception Doctrine because the Plaintiff was a “minister.” The case was not dismissed because the Court had to assume as true the allegations in the Complaint at this stage of the proceedings and that at best there was a factual dispute that could not be resolved at this stage. The case will proceed into discovery and possibly other proceedings.

There might not have been a factual dispute if as a new employee the Plaintiff had acknowledged by signing a document describing her position and its duties as ministerial or if there had been an employee handbook similarly acknowledged that contained similar language. Such an employee handbook might have contained a morals clause that expressly listed pregnancy out of wed lock, for the father and the mother, as disqualifying criteria for working with the children entrusted to the church. The troubling aspects of the situation may have been reduced if the church had engaged and paid a license professional counselor to counsel the Plaintiff to reduce or end the “discord” among child care workers, especially if that effort failed, and to help her make the adjustment to motherhood. The Scarlet “S” approach, if the church took that approach as the Court’s opinion seems to suggest, did not seem to work so well.

THE CHICKEN DID IT AGAIN

The tenth report posted herein in February 2017, entitled The Chicken Did It, was about a 2016 case out of California in which the California appellate court reversed for further proceedings a case involving over flow parking. Well, there has been another one. However, the lesson from these two cases is radically different. The California case reversed for further proceedings because the church gave no warning about the busy street and took no other action to protect people jaywalking to the church. This report is about the opposite.

In Charney v Reitz, Slip Op. (PA Supp. 2018), the church had only four paved parking spaces but was able to use a commercial parking lot across the street for over flow parking. The use of the parking lot across the street was a practice that persisted for decades. But, the street to be crossed, which may have not been in the distant past, became a very busy street. The church sometimes had police or firefighters acting as crossing guards. The church used reflective cones to warn drivers. In a footnote, the court even reported the church tried to take other safety actions but was blocked by the state’s department of transportation. What was the church’s reward for this diligence? The court found the church voluntarily undertook the duty to safeguard persons crossing the street to attend church events. The remand would be a jury trial over whether the church carried out its duty adequately in the fatality pedestrian auto accident that was the subject of the case. The deceased was a church member and was actually the person that purchased the reflective cones, so the deceased knew about the risks of crossing the street. But, the deceased was 84 years of age.

Trying to read the two cases side by side is disheartening because the church that did allegedly nothing, according to the court in California as reported in the February 2017 post, faced the same trial as the church reported in this post that did several things and may have been stopped from doing more. Of course, as a practical matter, the church that tried to address the problem may with the right jury find exoneration. Both churches hopefully had adequate insurance coverage and their legal fees were probably paid by those insurers. In addition to making certain their insurance policies covered use of an over flow parking lot, the churches should petition, maybe repeatedly, state, county or city traffic authorities to install flashing yellow warning signs, an officially installed and painted cross walk, and other safeguards. While the government in most states cannot be successfully joined as a party, they make a great “empty chair defendant.” Your trial counsel can explain that one to you.

CHURCH BUILDING WOES AND WARS

A famous teacher of evangelical pastors once told me that pastors had no choice but to be jacks of all trades. In this blog, the cases reported involve everything from financial controls, zoning, internal security for vulnerable members, property titles, and corporate control issues, just to name a few.

In Christ’s Legacy Church v Trinity Group Architects, Inc., 2018 OK CIV APP 31 (oscn.net), a division of the Oklahoma Court of Appeals reviewed a trial court summary judgment in favor of an architectural firm in a case about the design of a church building. The church claimed the architectural firm was negligence and breached its contract. The Court of Appeals affirmed the judgment against the church as to the negligence claim but reversed and sent the case back to the trial court on the breach of contract claim. The architectural firm claimed the written proposal was not signed by the church so there was not a written contract. If there was only an oral contract, the statute of limitations was three years but if the contract was in writing the statute of limitations was five years. The Court of Appeals held it did not matter whether the proposal was actually signed if it, indeed, represented in writing the agreement of the parties and had been acknowledged in another way.

In the trial court, the church will have to prove the written proposal was the written contract under which the architectural firm did the work even without a signature. One change order to the “proposal,” or a couple of emails, or “in re” lines on a letter or a fax will probably do it. Thus, once again, a case may be determined on whether in the age of scanners and computers the church was a reasonable records custodian. The statute of limitations barred the negligence claim because the church did not, or could not, investigate fast enough to present a claim. Most volunteer run churches usually have no more than one or two FTEs neither of which are professional property managers so the time to investigate gets away quickly. Also, well-meaning church members tend to stand around and gawk at a problem none of them are fully competent to address. Church boards need to hire the professional that can address the problem, pay for the service, and get a definitive answer with dispatch, which may include trial counsel. Large engagements like engaging an architect to design a building require as stewardship a written contract signed by everyone. One more thing for the pastor to know, right?

SPIRITUAL GUILT TRIPS

After the United States Supreme Court’s decision in Alamo Foundation v Secretary of Labor, 471 US 290 (1985) held that persons working for food, clothing and shelter were in fact employees because of their economic dependence entitled to the Minimum Wage, occasional confusion resulted about whether church volunteers were employees. Because church volunteers were not economically dependent, i.e., could walk away and never return, they were not employees entitled to payment.

In Acosta v Cathedral Buffet, Inc., Slip Op. (6^th Circuit 2018), the United States Court of Appeals for the 6^th Circuit was confronted with a Department of Labor (“DOL”) conclusion that because the church volunteers were spiritually or socially coerced by the pastor to serve as volunteers in the church owned restaurant that they were in fact employees entitled to the Minimum Wage. The DOL had to reach that conclusion because it could not realistically claim the church member volunteers were economically dependent for sustenance as had been the workers in the Alamo case. The 6^th Circuit concluded that spiritual or social coercion, if it existed, was not envisioned by the Fair Labor Standards Act (“FLSA”). As a result, church volunteers could not pursuant to the FLSA be employees.

The Concurring Opinion questioned whether the DOL had fully contemplated the implications of inquiring into spiritual or social coercion if such existed. The Concurring Opinion noted such an inquiry would require an inquiry into the religious imperatives for the volunteers contrary to the Ecclesiastical Abstention Doctrine of the First Amendment. Music worship leaders that must hold together church choirs and bands week after week forever can attest to the necessity of the spiritual guilt trip. But, such persuasion, if it is coercive, is not recognized as a prerequisite to a conclusion a worker is an employee rather than a volunteer. (However, the Concurring Opinion did not ask the same question of the federal trial court.)

The Daily Oklahoman, the general circulation newspaper in central Oklahoma, noted the 6^th Circuit’s decision in an op-ed piece in the April 23, 2018 edition. The Oklahoman concluded church volunteers could simply find another church. Somehow that did not occur to the DOL or the federal trial court which was reversed by the 6^th Circuit.