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.
Church General Counsel is committed to sustainably providing legal services to churches and pastors across the country. However, the time involved in providing customized service necessitates an increase in rates for those services beginning October 1, 2018 for any church that has not already retained the services of Church General Counsel. The rates for membership, documents, and other services will not change.
Current clients will maintain the same rate. The following rates will apply for churches who wish to make Church General Counsel their in-house attorney.
Fortunately there is still time to sign up to avoid this increase in rates. Click below to sign up, or email Managing Attorney Josh Bryant at firstname.lastname@example.org.
* Many churches can save between $200 and $800 by paying a lump sum as opposed to the monthly rate.
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:
My dad was a worship pastor when I was growing up and one of the ministerial headaches he got most frequently was the sound system. Feedback, static, interference, cassette tapes that wouldn't play (you younger folks won't understand) - it all created problems for worship services.
Now thanks to a ruling by the Federal Communications Commission, churches need to pay close attention right now and begin planning for more headaches right now. The quicker you plan, the less of a headache this will be.
Last year, the FCC ruled that wireless microphones cannot operate in most of the 600mhz band range anymore. The problem is, lots of churches have wireless microphones that operate in that range. To try and ease the burden, the FCC gave everyone until June of 2020 to make the conversion unless it interferes with licensed operation in the 600mhz band. If that happens, they can kick you out. What happens if you refuse? You could be fined or face criminal penalties. So yes, this is a big deal.
My biggest fear is that churches will wait until 2020 to update their microphones. How much money might that cost? One larger church I talked to will spend close to $40,000 or more to make the transition. Don't wait until the last minute. You need to start budgeting now to update your sound system, making sure that you have no device that operates wirelessly between 617-652, and 663-698 mhz. You should be able to find the frequency information on your wireless microphones.
Southern Baptists have been busy discussing what is appropriate in counseling after statements Southwestern Seminary's President Dr. Paige Patterson made regarding counseling divorce in the case of abuse came under scrutiny. The line of demarkation is clear at this point - some defending Patterson with a heavy emphasis on the sanctity of marriage; some calling for his resignation over insensitivity to abuse. I can add little clarity to that discussion, except to say that I pray I am raising a daughter who will run from such a situation (God forbid she ever find herself there), and sons who will never treat women so disrespectfully. We should also remember that we live in a day in age in which wives can abuse husbands too.
What I can add to the conversation is a review of the risks churches assume in counseling victims of domestic abuse. Here are a few liability vectors that churches and pastors need to consider on this subject.
A pastor can be held liable in this situation under a theory of general negligence. There are four things an abuse victim would have to prove: 1) the pastor or church owed a duty to the abuse victim, 2) the pastor breached that duty by an act or omission, 3) damages, and 4) the pastor in some way caused the damages.
Generally, the courts will not hold a pastor responsible for counseling on strictly spiritual matters due to the First Amendment. For many evangelicals, marriage counseling is a deeply spiritual matter to which Scripture speaks a great deal. Unfortunately, our culture is increasingly divorcing marriage from spiritual life. As such, some courts have held that pastors have a duty of care to persons seeking marriage counseling, the breach of which is not subject to First Amendment protections. Damages would be easy enough to prove in the case of physical abuse. Causation can be established by the trusting and somewhat authoritative relationship between pastor and person seeking pastoral guidance. Pastors therefore take a big risk by advising abuse victims to stay in an abusive situation.
Negligent Hiring, Supervision, or Retention
Liability for the church in this scenario would only stand if proven vicariously. In other words, the church is not directly responsible to the abuse victim, but as with all organizations it does have a responsibility to adequately interview, supervise, and if necessary fire any employee of the church. The duty is not the focus; churches have duties to oversee their employees. If the church does not do a thorough interview of a pastor, or if the church knew the pastor's stance was that victims should only pray for their abuser and remain in an abusive home, then the church could be held liable for negligent hiring. If the church does not supervise activities of a pastor that a court could deem as "non-spiritual" so as to allow a suit to proceed, then the church can be held liable for the actions of the pastor under a negligent supervision theory. If the church does supervise and knows that a pastor is counseling abuse victims to remain in abusive situations, then the theory would not be negligent supervision but negligent retention. In either of these cases, both the church and the pastor could be held liable and worse, the pastor and church will often end up bickering over who is more liable.
Some churches utilize peer counseling ministries in lieu of strictly pastoral counseling. Even in these scenarios, churches must be very careful in selecting, supervising, and revoking the privileges (if necessary) of lay counselors. Failure to do so can result in the church being held liable for the advice of the lay counselor.
Knowing now that counseling in and of itself contains risk regardless of the circumstance, what are some things we can do to protect ourselves?
1. Hire or refer. The psychological dynamics of abuse take counseling here out of many pastors' realm of expertise. However, seminaries are churning out tons of counseling graduates that could work at your church. Hire a pastor of pastoral care for your church to handle things like hospital, assisted living, and hospice visits, counseling, benevolence, and so forth. If you don't have the budget for another staff member, gather a list of good Christian counselors in the area and refer the matter out.
2. Statement of Ethics. While your statement of faith will not change with the culture, your statement of ethics will at least grow as conduct once reprehensible becomes more commonplace. Based on what your church believes the Bible says about man, sin, the church, and marriage, how do you expect members to act? In light of the #MeToo movement, growing allegations of sexual assault, abuse, and more, your statement of ethics or white papers should directly address and repudiate any form of abuse. Pastors and lay counselors should then be not only held to that standard, but also enforce that standard by encouraging separation from abusive situations.
3. Documentation. If you are going to have a pastoral counseling practice in your church, you need good documentation. This should include an agreement that a) requires alternative dispute resolution in the event the person seeking pastoral guidance is injured by the counseling process, and b) specifies exactly what you are qualified and not qualified to handle. It should also include routine note taking about what took place in every counseling session and a final letter of some sort indicating that the counseling relationship has ended. These documents must remain confidential.
4. Basic Policy Protections. Institute policies that prohibit male pastors from counseling females alone or that only women may counsel women. Establish other guidelines such as an open door policy or windows so that others may see inside the office while counseling is taking place. Utilize technology for video or telephone counseling. These should be in effect with all interpersonal relationships to prohibit the appearance of impropriety and hopefully limit the chances of a false claim of sexual misconduct. Counseling is often the first step to such an allegation.
5. Specific Policy Considerations. Limit what your pastors or lay counselors can discuss to things that are strictly spiritual or biblical in nature, that deal with a person's sanctification, and so forth. Limit the use of the term "counseling" because that can bring you under state licensing requirements. Instead, offer spiritual guidance or biblical guidance.
6. Insurance. Talk to your insurance carrier about professional liability insurance and Employment Practices Liability Insurance to cover the church in the event a pastor or lay counselor is found to be negligent in the practice of biblical counseling. Depending on the specific practices of your church, these policies can be rather inexpensive.
Back by popular demand! Church General Counsel will host a 1-hour church security webinar on April 12, 2018 at 3pm central. Topics include:
Church General Counsel will host a webinar on April 26, 2018 at 3:00pm CST to discuss cases in which churches have been in court. Managing Attorney Josh Bryant will select a number of cases to discuss in the following format:
Church General Counsel has announced its April webinar topics:
Church General Counsel will host a webinar on March 29, 2018 at 3:00pm to discuss cases in which churches have been in court. Managing Attorney Josh Bryant will select a number of cases to discuss in the following format:
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.