by Josh Bryant
In a previous article, I described 5 questions that church leaders need to ask in terms of making a decision that would result in the church being called ethical. In reality, no one church leader makes all the decisions that result in an organization's actions. The Senior Pastor, staff, key lay leaders, other leaders, and volunteers all act in a manner that reflects on the church itself. These actions are the actions of the church as much or more than they are the actions of one person. How then do we restrain the conduct of the organization? In short, a strategic ethics program.
Many would say that the church of all places needs an ethics program the least. Churches don't need policies and procedures because no volunteer would intentionally harm the church or have the authority to do anything that would. Churches don't need to worry about violating obscure laws because churches are "small fish" compared to big corporations. Churches don't need codes of conduct for volunteers because we all follow Christ and will do the right thing.
These statements simply could not be further from the truth. More and more lay counseling programs are popping up that are poorly supervised and trained. Volunteers are operating chainsaws, heavy equipment, and automobiles full of children. Churches aren't so small any more. Mega churches and multisite churches are growing in number, and many times in size. As churches grow, budgets grow. Volunteers will always do the right thing? Tell that to the churches and charities that will lose $5 billion this year alone to fraud and theft. We must lead our churches to be very intentional in structuring the church's conduct. Here are four levels of ethics to strive for, each building on the one before it.
Level 1 Church - Compliance Driven Ethics
At this level, your church's method of ethical behavior is driven by a need to protect the organization. You have policies and procedures in place designed to meet the government's requirements of the church. You have rules and disciplinary procedures for staff members to enforce compliance with your code of conduct. The focus of your ethics program is all about "following the rules."
In some regards, most churches find themselves in this area of the spectrum or below. Far too many churches do not have any policies and procedures. Too many church leaders are completely unaware that their church is violating several laws that could result in serious harm to the church. This state of blissful ignorance has been tolerated and ignored for a long time, but we are starting to see that tolerance end. Churches have control over staff by threats of being fired, but they do not have the same "control" over their volunteers. Most have such a volunteer shortage that they will not fire a volunteer at any cost. In order to fully meet the requirements of even a compliance driven ethics programs, these are areas that the church must address.
Level 2 Church - Risk Driven Ethics
At this level, your church has developed a more sophisticated system for measuring risks and mitigating them. You have resources assigned to tackle them. You have begun to create an ethical culture at the church among staff and volunteers, but your efforts are still very inward focused. The church is more concerned with the effect of the conduct of its employees and volunteers on the church than the effect of that conduct on the outside world. In other words, you're still acting to protect the church.
Very few churches exist at this level. Even those with well developed policy manuals usually do not have a great system of measuring what risk is out there and how to ethically mitigate that risk. Very few churches have an employee with the responsibility of doing so. Very few churches are employing quality risk assumptions and liability waivers that one would expect at this level. Most churches are comfortable either ignoring the issue or simply ensuring staff comply with the rules.
Level 3 Church - Reputation Driven Ethics
At first glance the name of this level sounds prideful and self-centered, but it isn't. We want the church to look good to the outside world. We want what Jesus offers to be attractive without the church making it less attractive.
At this level, the church is paying attention to the ramifications of its decisions on the world around it - those directly impacted by its actions. Instead of a tyrant enforcing policy on staff, the church pays attention to what would make their lives better. The church focuses on how it can make its members and guests lives better. When the church is concerned about its reputation - not pridefully but for the cause of Christ - its relationships with employees, volunteers, members, and guests grow stronger. Employees and volunteers are more productive. More members volunteer.
I can hear you already - "we are focused on a lot of these things." There are many churches who do very well meeting ethical obligations at this level. But statistics show that most church staff are still severely under paid. We are concerned with providing a great worship experience and spiritual growth for our members and guests, but people are coming less frequently. These are our goals, there is just no ethics program attached to them. There is nothing that governs the church's conduct to make sure this happens. There are no policies and procedures governing parking lot greeters or the process by which a guest speaker is vetted and approved. Furthermore, all of this is built on a foundation that is crumbling at best. Each level builds on the previous one, so if we do not fix those problems, we could very easily find the comfy chair of our laurels that we are resting in get kicked out from underneath us by a litigious, hostile world.
Level 4 Church - Culture Driven Ethics
At this level, your church is adding value to its community and to other churches. Your church is considering future generations and people who have not yet been born who will worship at your church decades from now. Some believe that to reach this level your church must be concerned with its environment through recycling programs, clean energy usage, carbon footprints and more. None of these concerns are bad or unbiblical, even if you do not believe in global warming (I offer no opinion on the subject). Your community not only benefits from your church, it trusts your church. As a result, your church's conduct optimally achieves its mission.
Here you have policies and procedures for the entire church. Every operation is performed within the same parameters every time. As such, the community begins to rely on and trust those operations. The chances of variable conduct derailing the train and causing a legal disaster are minimized. You have a code of ethics that is part of your DNA. You talk about it, teach it, publish it, and live it. Your church's conduct is intentionally designed to bring value to the Kingdom of God, to do everything it is obliged to do, to take care and shepherd those God has entrusted to it, to fulfill the Great Commission, and to be a trusted and valuable member of society. This is the kind of church ethics program we should strive for.
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.
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.
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.
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.