For the International Day for the Elimination of Racial Discrimination, we recommend you take a look at the following books, especially The Gospel & Racial Discrimination by Russell Moore.
Managing Attorney Josh Bryant has been a discipleship pastor and lawyer, responsible for the church's legal safety and along with an amazing team of church leaders for assimilating guests into the church. Church General Counsel can help your church not only systematize its church growth processes, but merge those with church security processes into a seamless cross-functional team. And yes, we can help you determine who gets to carry a gun!
by Josh Bryant
Churches have a heightened sensitivity to background checks right now in light of a report by the Houston Chronicle that found 700 cases of sexual misconduct over the last 20 years in Southern Baptist Churches. But do you know what to do when you get a positive result? The answer may seem to be as simple as telling the person they cannot volunteer or serve on staff, but because of the Fair Credit Reporting Act, it isn't that simple. Here are five things you need to know about a positive background check.
1. Make sure you had their permission before you do anything. Several laws require written consent of the person before you run a background check on them. Failure to have that permission could get your church into trouble with the Federal Trade Commission, the Consumer Finance Protection Bureau, the Department of Justice, and any number of state institutions, not to mention a law suit for invasion of privacy. If you didn't have their permission, go get it and run the background check again.
2. Don't say no...yet. Before you take an "adverse action" against a volunteer or staff member by not allowing them to serve, you must give them a notice that includes a copy of the background check report you received. You must also include a document put out by the CFPB called "A Summary of Your Rights Under the Fair Credit Reporting Act" and give them at least five days to explain or contest the content of the report. To be safe, give them ten.
3. Now you can say no. If they don't contest the information or explain it to your church's satisfaction, now you can tell them no. But you have to do it in a certain way too. You have to tell them that they were rejected because of the information in the report, give them the name, address and phone number of the company that ran the report, inform them that the company who ran the report did not make the decision to deny them the opportunity to serve, and inform them of their right to dispute the accuracy or completeness of the report and get a free copy of the report from the company that ran it within 60 days. But...
4. Make sure you say no uniformly. Especially in the context of employment, failure to uniformly say no is discriminatory and can get your church in trouble. For example, if you tell one applicant no because they had a DWI on their record and another yes even though they also had a DWI on their record, you'd better have a very good reason for treating the two differently or you could be in trouble with the EEOC. Volunteers really don't have much of a recourse, but it does look bad. So write down what disqualifies a person from what roles in the church so that you plan in advance how to handle certain findings on a background check. And...
5. Make sure you maintain confidentiality. You need to lock the report up for a year and then either shred or burn it. If you store it digitally (which I don't recommend), you need to make sure you've got adequate data security in place and that you have the proper IT infrastructure to completely erase the data from your systems after a year. Moving it to the recycle bin or trash can on your computer is insufficient; the FCRA mandates that electronic copies cannot be reconstructed. That usually requires special software or hardware to make happen.
Dark cloud. Sad day. Euphemisms like this abound regarding a report by the Houston Chronicle that found over 700 cases of abuse in Southern Baptist Churches over the last 20 years. Prior posts on the Church Law Blawg have discussed how we can prevent claims like this. We can implement stringent policies that govern who can work with children and under what circumstances. We can limit counseling sessions with members of the opposite sex by bringing in a trained professional or including more than one counselor in the session. We can install internet filters that prohibit and prevent access to pornographic or dating sites. These are designed to increase your church's security, but as the adage goes, "there is no such thing as absolute security." We live in a fallen world, and despite our best efforts to prevent sexual abuse and misconduct in the church, it will most likely happen again. The question then is not just how do we prevent it, but also how do we respond to it? Here are a few things you can do in your church:
1. Encourage Reporting. When the dust has settled from a report of sexual abuse in the church, there can be no ambiguity about whether a victim was encouraged to or discouraged from reporting. In fact, there are a great many pastors who this week will feel compelled to address their congregations about the Houston Chronicle story. What a great time to stand in front of your congregation and encourage people to report it if they've ever been sexually abused in the church.
2. Institute an Open Door Policy. Allegations of sexual abuse on staff should not be delegated to the worship pastor. Unless the senior pastor is the alleged offender, the senior pastor's door needs to be wide open to hear allegations of sexual misconduct. This is worth interrupting your study time to hear about. It is a big deal that threatens the flock much more than losing a couple of hours of parsing out Greek words and diagraming passages.
When the dust has settled from a report of sexual abuse in the church, there can be no ambiguity about whether a victim was encouraged to or discouraged from reporting.
3. Call Law Enforcement. Especially if the victim is a minor, and while you're at it call your state's child abuse hotline. Failure to do so not only makes matters worse for everyone involved, it is probably criminal. Do not ask a victim not to call the police. If the victim voluntarily asks that it be handled internally, call the police anyway. There can be no ambiguity as to whether you encouraged or discouraged reporting.
4. Isolate the Offender. Immediately. Don't wait. Don't take the night to sleep on it. Call the offender if he or she is on staff and tell them to stay home the next day until this gets sorted out. This protects the church by preventing the destruction of possible evidence. It protects the individual from the same accusation, plus a dozen more problems that could come about after the individual returns to work. Most importantly, it protects the victim. Keep the identity of the victim and alleged offender private from everyone except law enforcement, your attorney, and your insurer.
Call your church's attorney and then get out of the way... If you try to investigate and find out exactly what happened, you'll eventually find yourself having chosen one side and ostracized the other. That's not the place of the church's shepherd.
5. Get Help. Do not try to investigate this on your own. Call your church's attorney and then get out of the way. Cooperate with law enforcement and your church's attorney's investigation. Instruct your staff to cooperate as well, then go back to your office and pray for your church. Devote yourself "to the ministry of the Word and to prayer." (Acts 6:4). If you try to investigate and find out exactly what happened, you'll eventually find yourself having chosen one side and ostracized the other. That's not the place of the church's shepherd. Then follow the advice of your church's God-fearing attorney, who should be praying for your church right along side you.
We can't expect to accomplish great things for God without a bit of opposition. There will undoubtedly be obstacles. But, what doesn't kill you makes you stronger, right? Marcus Aurelius said it this way hundreds of years ago:
Our actions may be impeded...but there can be no impeding our intentions or dispositions. Because we can accommodate and adopt. The mid adapts and converts to its own purposes the obstacle to our acting. The impediment to action advances the action. What stands in the way becomes the way.
There may be a giant ogre of an obstacle standing in your way, but that ogre cannot block your intention or happiness because you have it within your control to adapt. Change your perception. Use the ogre to help you advance your purposes. Let the obstacle be your way, and remember: "affliction produces endurance, endurance produces proven character, and proven character produces hope." Romans 5:4
God has moved His church in recent years to really focus on developing church leaders who love Him immensely and know how to influence others to move the church towards executing its mission of reaching the lost. He's taking it a step further to develop lay leaders in the church who are leaders in their homes, communities, governments, and businesses and can influence others in those contexts for Christ. Now as a matter of necessity, the Church needs leaders who can simplify the complex interaction between the spiritual we learned in seminary and the law governing organizations that most of us did not. Here are three principles church leaders should know in our legal environment.
1. Good leaders Govern.
If you cringed reading those three words, you're not alone. I cringed writing them. But by definition, leadership (the action of leading a group of people or an organization) requires governance (the manner of conducting the actions, affairs, and policies of an organization or group of people). Do you see the difference, but synergy between the two?
Leadership is what we do. We rally the saints for worship, fellowship, discipleship, ministry, and evangelism. We build consensus among the saints about the priorities and activities of the church. Leaders motivate. Leaders inspire. Leaders build relationships with people who so are inspired and motivated by the leader's vision that not only will they follow the leader, but they'll lead others to follow too. Then what?
Our organizations - our groups of called out people (ekklesia) - must act. They must carry on day-to-day affairs with the overarching goal to obey the command of Christ to spread His gospel from the pulpit to the farthest reaches of our planet. Leadership is what we do, governance is how we do it.
God established the instruments of church leadership and governance in Scripture - pastors (poimen), elders (presbuteros), and overseers (episkopos). Hermeneutically, how do we apply this as laid out in the historical context of Paul's writings to the Ephesians, Timothy and Titus to our current context? How do we submit to the authority of Scripture and the authority of the rule of law? The answer is deceptively simple.
2. Good governance requires law.
The church is to be in the world but not of it, so we still must operate within its various constructs. The American legal construct is becoming more complex by the day. Churches are finding themselves more taxed than ever. The rules around how you provide employee parking could subject your church or its staff to a tax. The rules about revenue streams other than charitable donations are complex and being enforced more stringently all the time (even by sympathetic administrations). Courts are side stepping First Amendment claims that the government has no business in a church's selection of its clergy relying on business law principles to force the church's hand in some employment cases. If good leaders govern and good governance requires law, good leaders know law.
Of course, the word law has multiple meanings. There are tax laws, employment laws, safety laws, property laws, zoning laws, laws governing the duties we owe to one another (torts), contract laws, criminal laws - all of which affect the church in some way. But there are also laws of church growth, laws of evangelism, laws of discipleship, laws of worship, laws of fellowship, laws of service, laws of ministry - timeless principles in Scripture that give the church its mission and function in the Kingdom. There are laws of men and laws of God. As long as the two do not conflict they must guide what we do. The question is, how are we going to do that? Again, the answer is deceptively simple.
3. Good leaders govern with words.
Write it down. Sounds simple, right? As with just about everything in life, it is easier said than done. Nevertheless, we must do hard things for the cause of Christ if those things will make our churches more secure, effective, and efficient. Writing down how your church is going to carry out an action does all three.
Let's take hiring a youth pastor as an example. You've heeded the advice of this blog and sat down in your office to write down how you are going to do that. The first thing on your list - write a job advertisement. Next, publish the advertisement. Third, receive resumes. Fourth, review resumes. Fifth, throw away 95% of them. And so forth and so on. Done. Right?
Not quite. You've engaged in leadership - you've written down what the church is going to do. But you've not engaged in governance - how you're going to do it. Have you decided how much to pay the new youth minister? Have you considered the Equal Pay Act, the Fair Labor Standards Act, and other laws of men that affect that decision? Have you considered the biblical description of who fills the pastoral office and how the office must be filled? How will your church meet all of these requirements?
The laws of men and laws of God weigh on how you hire; they speak to how you govern. What you write down are policies and procedures. They should provide two guardrails on either side of your church's path that provide security. One guardrail stops your church from doing anything illegal under the laws of men, the other stops your church from doing anything unbiblical under the laws of God. The guardrails are the governance. The path in between and the ultimate destination? That's leadership.
Writing it down also makes your church more effective. You can look back at how your church hired a youth minister and take note of the stick points - those areas in the process that created difficulty and can be improved upon so that when it's time to hire a music minister you have a better job description, a better candidate pool, and ultimately a person in the job that fits your church's culture.
Writing it down makes your church more efficient. Most of the time, one person is not solely responsible for the hiring process. Others in the church may participate in the interview process. Others still need to know how to collect documents that comply with the Immigration Reform and Control Act of 1986, the Welfare Reform Act of 1996, the Internal Revenue Code, and other state and federal laws. When you write down how to hire and teach it to everyone involved, that education combined with experience creates efficiency.
I believe every church can be more secure, effective, and efficient by leveraging the laws of men to obey the laws of God. I hope this has helped you lead your church in some small way for His fame and glory.
Church planting is very similar to starting a business or having a baby. If you don’t start on a firm legal footing, you could run into some serious problems later. When churches are closing their doors, strong, legally secure church plants are vital. Here are 7 areas in which church plants could be legally vulnerable.
1. Church plants face an increase in zoning difficulty. Managing attorney Josh Bryant makes it a matter of habit to read every reported case he can in which a church is a party to the law suit and one of the more frequent subjects of litigation are zoning difficulties. To undo the deleterious effects of a U.S. Supreme Court case on religious liberty, Congress passed two pieces of legislation – the well-known Religious Freedom Restoration Act, and the lesser-known Religious Use of Land and Institutionalized Persons Act. The latter has become the basis of more frequent suits between churches and municipalities as churches fight to use their land for religious purposes and defend against discriminatory zoning laws.
2. Church plants routinely use borrowed foundational documents. In theory, there is nothing wrong with copying the articles of incorporation and bylaws or constitution of another church for use in a church plant. In practice however, churches must be able to properly use and follow their bylaws. Church bylaws should reflect the vision and mission of the church, which is unique from church to church. Josh Bryant routinely works with churches on writing their bylaws and articles of incorporation to fuel their vision, not work against it.
3. Church plants are wise to launch with solid policies and procedures in place. It is invariably easier to launch with established policies and procedures than to write them when dozens or hundreds of people want to speak into them. Josh Bryant has worked with dozens of churches on getting policies and procedures in place for the first time decades after launching. Many times, they must work through policy and procedure at that time because of an incident that hurt the church – one that could have been avoided with well documented and trained policies and procedures.
4. Church plants do a lot of ministry relative to the number of people attending the church. Outreach, evangelism, events, and programs designed to attract the community to the church are good things. With each event, program, and ministry of the church comes one or more risk vectors with potential liabilities for the church. Food kitchens and pantries could cause food poisoning. Doctors serving in free medical clinics could commit some form of malpractice. Kids jumping on inflatables at block parties can break bones. As a former pastor, Josh Bryant has worked with church plants to conduct these types of events with less risk of liability.
5. Church plants must frequently look to cut costs. Many a church planter knows how necessary it is to operate on a shoestring budget. Josh Bryant has seen church planters successfully obtain property to meet in out of tax or mortgage foreclosure for pennies on the dollar. Then again, he has seen them mess it up and lose everything they invested in a property. There are churches who have navigated the rezoning process alone without incident. Then there are many others who have waited until it is too late to get help and ended up owning property that they could not put a church on.
6. Church plants often rent using leases or landlord-tenant laws that are heavily landlord friendly. Josh Bryant’s own home state is one of those in which landlords have rights but tenants have none. Some of that can be remedied by contract. Some of it, you just have to deal with. Some states are much friendlier to tenants. In any case, commercial lease negotiation and interpretation are not classes taught at most seminaries.
7. Church plants need to make sure they are secure with the IRS well in advance. Depending on the denominational affiliation of the church, churches may need to secure their 501(c)(3) tax exempt status. Others may be able to rely on a letter ruling granted to the entire denomination. Others may prefer to exist as a church outside of the 501(c) regime and follow the IRS guidelines for exempt but unregistered churches. Either way, churches need legal and accounting counsel to help get them set up. Josh Bryant has secured 501(c) status for several organizations, including many churches.
Church planting is a noble, exciting calling. It is also very exacting and trying at times. Josh Bryant and Church General Counsel are here to help church plants get established. Call us at (866)597-5621 today to get started.
by Josh Bryant | Managing Attorney
Remember a few years ago when the Department of Labor announced that it was going to double the salary requirement for exempt employees under the Fair Labor Standards Act? What a disaster for churches that would have been! Fortunately, the courts intervened and struck that particular regulation down before it went into effect. But now it seems many churches have been lulled into a false sense of security. We cannot forget that proper classification of job positions is important; failure to do so can bring a lot of liability on your church. Here are five reasons why you need to have Josh Bryant and Church General Counsel review your job descriptions to determine whether the job could or should be classified as exempt or non-exempt.
1. It may make sense for you to reclassify some of your positions. A great many people work above the $455 per week limit for non-exempt employees right now and qualify as exempt under the salary level test. Simply paying them a guaranteed minimum amount (a salary instead of an hourly wage) would allow them to qualify under the salary basis test. By adding a few duties that qualify under the duties test to classify a position as exempt, you can eliminate your overtime exposure, obtain a greater degree of certainty in personnel costs, and maybe even protect your church from liability in other areas of law. Josh Bryant will help you walk through that analysis to determine what is best.
2. Churches are staffed with many creative and ministry professionals still earning an hourly wage. Some positions within the church are truly administrative and involve little more than copying, filing, answering phones, greeting people, entering data, and so forth. However, many ministry assistant or secretarial positions in churches also require a very special skill set. For example, do your ministry assistants use InDesign or another piece of creative software to create slides, flyers, and so forth? If a good amount of their job involves duties like this, they could be exempt and not subject to overtime requirements. Do you require your ministry assistant's to have any spiritual duties? You should. If spiritual duties occupy a good portion of their time, they could be exempt as well. In addition, courts do not often get involved in employment disputes between churches and employees with spiritual duties. Josh Bryant can help you reclassify those jobs to help protect your church if it is appropriate to do so.
3. Churches are also staffed with many senior administrative personnel. Do you have someone on staff responsible for all technology, including computers, sound equipment, projection devices, televisions, and so forth? If so, they could be considered exempt under the administrative duties test. Do you have a human resources professional? They could be exempt too. There are many people who work for churches earning an hourly wage that do office work directly related to the general operation of the church which primarily involve the exercise of independent judgment and discretion about significant matters in the church. As such, they could also be classified as exempt. Josh Bryant can help identify these employees and reclassify their jobs accordingly.
4. It may make sense for you to seek more non-exempt employees. If you have jobs in which work is high volume in some seasons and slow in others, it may make sense to have that position classified as non-exempt to the extent possible considering all the factors. This can help you save money by only paying for hours worked instead of a salary when a person only has part time work to do. If your church grants different fringe benefits to different levels of employee, it may save money to get more non-exempt employees than exempt ones. But you have to remember that you may gain overtime exposure with non-exempt employees. Josh Bryant can help you with this analysis as well.
5. You might need to consider contract labor. If there is a singular task that needs to be done, you might could hire an independent contractor to do it, even on a full time basis. Your pastor could even be an independent contractor if you wanted him to be. The downside is that contractors must have absolute discretion in how they carry out their jobs. You only get to negotiate what job is done and the cost of doing that job. The contractor then determines how, what employees he or she needs to get the job done, and so forth. The upside is that you do not have the administrative hassle of wage withholding - that shifts to the contractor. Furthermore, your contractor is responsible for any damage caused to others during the scope of their employment rather than the church as is most often the case. Josh Bryant can help you with the contracts necessary if contract labor is more appropriate.
In short, job classification is very complicated, and they don't teach it in seminary. You have to consider not only the duties assigned to the person and their educational needs, but also the other policies of the church, your budget, and the pros and cons of having a job be classified as exempt, non-exempt, or contract. Below is a sample policy and procedure document designed to help you classify your jobs. Of course, we're here to help at Church General Counsel. Give us a call at (866)597-5621 for any help you may need.
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Here at Church General Counsel, we're starting a focus over the next several weeks about dealing with sexual harassment in the church as the #MeToo movement spreads like wildfire through our society refusing to pass over the church. How the church works to prevent sexual harassment in the workplace is crucial, and we'll have resources and further discussion on this topic over the next few weeks. But the second aspect of a good sexual harassment strategy is how to deal with it if a claim is made.
Churches must respond to claims of sexual harassment with a thorough investigation. However, there are many great reasons why churches should not conduct them internally.
1. Churches are not naturally qualified to conduct an investigation appropriately. I don't know of any seminary that teaches a class on fact finding investigative techniques. I know plenty of law schools that do, however. Attorneys are trained in how to build a case, and before the case can be built on the law it must be built on the facts. As such, attorneys must know how to conduct good witness interviews, collect documents and other evidence, and otherwise conduct a solid investigation.
2. Internal investigations can lead to hurt feelings and further conflict. Someone is going to disagree with your conclusion if you do the investigation by yourself. This can cause church members to be upset with you, and you didn't do anything but due diligence in investigating a sexual harassment claim as you should. It can cause more strife on staff. However, if you have an outside attorney conduct the investigation, it brings a formality to the process that relieves you of personally carrying the weight of the decision without an independent recommendation.
3. The content of the investigation can gain extra protections. This is the great benefit of attorney-client confidentiality and privilege. Attorney-client confidentiality just means that an attorney must keep information gained from the attorney-client relationship strictly confidential in a vast majority of circumstances. As such, the things that church staff, members, and others say to the attorney are usually protected. Attorney-client privilege goes further to prohibit a court from requiring an attorney to disclose that information. This is a great protection that you won't get with any other investigator.
4. The results of the investigation can also gain extra protections. This means that whatever the attorney discovers could be protected from anyone else getting access to it. This is because a doctrine known as attorney work-product. It is an exception to the discovery rules - rules that provide for the provision of evidence from one party in litigation to the other in hopes of settling a case or allowing the other party to prepare for trial on equal ground. Except in rare situations, the work of an attorney cannot be "discovered" by an opposing party such that not only communications, but the result of an investigation are protected from disclosure.
At Church General Counsel, we highly recommend our clients utilize our services to conduct investigations in sexual harassment and other personnel matters. Here are some ways we can help:
Church General Counsel Managing Attorney Josh Bryant, J.D., M.Div., authors most of the posts in this section. From time to time, he will post articles from others in the field of church growth, administration, and operations.