Tag: church employment

FIRING THE PIANO PLAYER

It is hard to imagine a church that has a constitution and bylaws so primitive that they still require that termination of any and every church employee be the subject of a public congregational meeting and vote. Not only would feelings run high in such a meeting, what might be said might make it impossible to salvage the church leadership or other employees. While the senior most pastor employed by the church might need to be subjected to a congregational meeting and vote in some traditions and denominations, it is hard to imagine a valid purpose for subjecting subordinate ministry staff, support or clerical staff to such a chaotic process.

Nevertheless, in Lippard v Holleman, Slip Op. (NC App. 2017)(unpublished), the piano player with 34 years of tenure was presented for termination to the congregation for a vote. But, after what is described as a full court press by the senior pastor, the congregation voted to retain the plaintiff. Both leading up to this meeting and in the events afterward, the piano player alleged she and her husband, a deacon, were defamed by the senior pastor and music minister. The case was procedurally tortured by the withdrawal of the piano player’s first lawyer, assignment to multiple judges, and the new lawyer filing an entirely new lawsuit.

The defendants alleged the Ecclesiastical Abstention Doctrine deprived the court of jurisdiction. Of course, the problem was the justification put forward by the senior pastor for termination did not stay private, did not stay in the congregational meeting, and was alleged to have been untrue. The appellate court reversed the trial court dismissal and sent the case back to the trial court to be heard as a defamation case.

One lesson is that the church should have had modern bylaws making employment issues private and the exclusive domain of the church board or the senior pastor. (The choice between these two is usually made based on the tradition of the denomination or the church as to the authority to accord to each but in this discussion it will be assumed the selection of the church board, whatever it might be called, is the preference.) Modern bylaws would have required the piano player’s husband to be excused from a board meeting about the employment of his wife. The likelihood a pastor could survive in a congregation that would not support his recommendation to replace a staff member or clerical person, including a piano player, seems low.

Another lesson for pastors and church board members is that employment issues should be treated as confidential, especially in “at will” jurisdictions. Indeed, one might argue the “civil procedure” set forth in Matthew 18:15 starts in private in its first stage, and only in the escalated stage does it go to the congregation or the public, and then only on disciplinary matters. Employment, which is a financial relationship, should rarely, if ever, be treated as a disciplinary matter unless there is simply no choice. Otherwise, spilling out into the street and the civil secular courts is more likely.

ARE PASTOR EMPLOYMENT CONTRACTS REAL?

While a court will typically refuse to reinstate a defrocked or fired pastor under the Ecclesiastical Abstention Doctrine or the “ministerial exception,” in most states a purely contract based dispute will be heard under neutral contract principles. In most states, the contract will be enforced as written or legal defenses to contracts will be considered.

In Bigelow v Sassafras Grove Baptist Church, Slip Op. (NC App. 2016), the Pastor and the church entered into an employment contract that contained a disability provision. In case it is not obvious, the contract did not require that the Pastor remain at his post to receive the disability benefits. The disability benefit provided by the contract was that the church would pay salary and medical benefits if the Pastor became disabled during the twelve year term of the contract, which might turn out to be several years in this particular case if the contract was enforced.

The trial court dismissed the case under the aforementioned 1^st Amendment doctrines. The appellate court reversed the dismissal and sent the case back to the trial court for further proceedings, which would probably include discovery and trial until verdict or settlement. The reversal was based on a thorough review of the Ecclesiastical Abstention Doctrine and the “ministerial exception,” and the conclusion that neutral contract law principles governed the dispute.

The contract was, in part, quoted in the court opinion. The contract was clearly not drafted by a lawyer. Drafting errors may have resulted in confusion about the terms agreed upon or the full extent of the promises exchanged, especially duration of the promises. Further, the disability insurance policy in effect at the inception of the contract was no longer in force and it seems likely the church did not anticipate that the loss of that coverage might or might not expand the financial commitment. The portion of the contract quoted did not specify which party had the obligation to keep the disability coverage in force. If that was the Pastor’s duty, then the church might have a setoff to assert.

Employment contracts are generally enforceable between Pastors and churches as to financial terms, but not as to actual employment. If the church removes the Pastor from that position, no court will intervene, even if the financial aspects of the contract are still enforceable.

CAN THE CHURCH LADY BE FIRED?

In those states that recognize the employment at will doctrine, church employees have no greater rights than secular employees without an employment contract. In other words, the employee can depart their employment at any time and the employer can terminate the employment at any time. While in secular employment protected classes of employees might have certain legal protections from terminations based on their characteristics, such as race or ethnicity, even these protections do not apply to church employees that have religious duties.

In a legal proceeding involving the Pastor, an “administrative employee” of the church testified in court. Other church leaders present heard the testimony and terminated the employee shortly thereafter. The employee commenced a wrongful termination action alleging the termination violated public policy which, if it existed, protected the employee from termination based on court testimony. In Heidorn v Chelten Church, Slip Op. (Pa. Super. Ct., 2016), the court affirmed dismissal of the case by the trial court because the court found no such public policy. That the motive for termination might have been retaliation for testimony was not enough to inspire a new public policy.

The opinion does not provide details about the testimony of the fired church employee or the legal proceeding involving the Pastor. Thus, it seemed that such details, no matter what they were, would not have caused the court to create such a public policy or to extend it so far as to abrogate the at will doctrine. The at will doctrine is a general employment doctrine, i.e., not related only to churches, so this opinion might apply to most secular employers as well.

Can You Just Add “Minister” to the Contract?

In the United States Supreme Court case, Hosanna – Tabor Evangelical Lutheran Church and School v EEOC, 565 US___, (01/11/2011), with which everyone is now trying to bring their employment relationships into alignment, the teacher in question was classified as a “minister” because of her religious licensure and her religious teaching responsibilities. As such, employment decisions could not be reviewed by the courts without violation of the First Amendment Ecclesiastical Abstention Doctrine. Other religious organizations have had the idea based on the case that all of their employees, regardless of expertise, are also religious operatives and so described them in employment contracts and employment policy manuals.

Will it work?

So far, it generally has. It probably will if the job, as described in the policy manual, includes religious education or other religious duties. In the absence of a policy manual or job description, there may be other proof of the religious entanglement of even secular positions. If the religious organization accepts government money there may be the need to trace whether the federal programs in which the employees serves is secular, and funded by government, or secular but related to the religious objectives. Absent a financial entanglement with government, most courts will likely allow church schools to enforce the tenants of their religious sponsors and probably most other types of organizations, too.

Another valid question would be, is it necessary? Most courts will see the reality rather than look only to the form. For now, until a few more court decisions come down the pipeline, the better practice is to revise employment agreements and policy manuals of church schools to make clear the religious nature of the duties of the teachers.

Another method of deflecting employment claims will be the “morality clause” inserted in employment contracts or policy manuals. Most denominations have a central document that sets forth a clear statement of the religious morality expected or sought, too. Evangelical churches that do not have a denominational base document usually have corporate bylaws or other constitutional documents upon which the church school or employment policy manual can be based to achieve the same result.