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.
In the annals of church litigation, exemption from taxation is not usually controversial. If the “entity” can possibly, rather than merely plausibly, be considered a “church,” its exemption from taxation is generally assumed.
In Jaswant Sawhney Irrevocable Trust, Inc. v District of Columbia, Slip Op. (DC App. 2020), the Plaintiff was denied a property tax exemption because it was allegedly not “a single congregation” owning and using the building. The Plaintiff, however, was a non-profit corporation that operated the property as a Gurdwara, a place of assembly and worship. The Plaintiff also had other charitable functions besides operating the Gurdwara so the taxing authority held it was not a church. Ultimately, the appellate court reversed the trial court’s agreement with the taxing authority so that on remand the Plaintiff could put on proof at trial that the property was operated as a Gurdwara. The appellate court held there did not need to be an exact legal identity shared by the church owner and the congregants to qualify for the exemption. Also, the statutory use of the word “congregation” did not necessarily require a definition by “legal form, nor indeed by any legal formality.”
Church conferences and denominations may own church property in which meets an assembly of worshippers that may or may not be owners of the property owning entity. Tax exemption should still be available so that the taxing authority can refrain from ecclesiastical entanglement trying to determine whether the worshippers and the owning entity are “sufficiently” related. The real challenge in a tax exemption case may be simply to refrain from underestimating their complexity. In the case reported, the actual application for tax exemption submitted to the taxing authority was not put in the court record. Even though statutes may use the word “appeal” permitting a challenge to governmental administrative actions, it is not generally automatic that the record before the governmental agency would become part of the record before the court. An incomplete record is often an anathema to an appeal of any sort.
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.
While in recent months, especially in Oklahoma, there has been considerable angst regarding the scope of the sovereignty of tribal governments, virtually the same type of issue arises with regard to denominational authority. Indeed, some denominations resolve certain disputes by convening a court. It may be called an “Ecclesiastical Council” rather than called a court, or by some other name, but nonetheless it is a court.
In Church of God in Christ, Inc. v L.M. Haley Ministries, Inc., Slip Op. (Tenn. App. 2020), the appellate court affirmed summary judgment in favor of the denomination. The local church’s long time pastor died. He was succeeded for a couple of years by a “Jurisdictional Bishop” that appointed himself as pastor. However, the successor died. For a time, the position of “Jurisdictional Bishop” remained vacant and so, too, as a result did the pastorate of the local church. Tiring of the circumstances, the local church in a congregational vote attempted to terminate its “jurisdiction” membership and transfer to another denominational jurisdiction. However, the original denominational jurisdiction appointed a “Jurisdictional Bishop” and he in turned appointed himself pastor of the local church. The faction of the local church that led the attempt to change denominational jurisdictional membership refused to relinquish control of the local church property or assets to the “Jurisdictional Bishop” appointed as pastor. To resolve the dispute with the local church, the denomination convened an “Ecclesiastical Council” to decide the matter. The council affirmed the appointment of the “Jurisdictional Bishop” as local church pastor and excommunicated the dissenting faction. The local church led by the dissenters resisted and the lawsuit was filed to enforce the decision of the denomination. The courts refused to review the “Ecclesiastical Council’s” decision, treated it as binding and worthy of deference, and granted judgment to the denomination.
The governing documents of the denomination and the local church made ecclesiastical inquiries unnecessary. Once the denomination established its authority to select the pastor, its authority to hold the local church property in trust, and its authority to excommunicate the dissenters, the denominational decision was treated deferentially. To avoid such an outcome, the local church should have obtained a documented “acceptance” from the denominational jurisdiction to which it tried to transfer by congregational vote. Further, the acquiescence of the losing denominational jurisdiction should have been negotiated. Both efforts would have been cheaper than litigation and more likely to be successful.