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Wednesday, May 03, 2006

Would a Church Staff Member Ever Sue Your Church?

Lawsuit2As a church leader, you might think your employees would never sue you. Think again.

Tens of thousands of people file employment discrimination charges each year, and churches are no exception.

In fact, employment claims against churches are on the rise, says attorney Kathleen Turpin, vice president of human resources for Brotherhood Mutual Insurance Company. Brotherhood Mutual is an expert in church risk management. It recommends that every church maintain an employee handbook and update it regularly to reflect current laws and practices. If your church doesn’t have one, it might wish to consult a guide for creating an employee handbook.

Are you protected?

Ensuring that your employment practices are in line with the law can save you untold hours of mental anguish. Not only do sound practices help your organization run smoothly, but they also reduce the likelihood that an employment-related lawsuit could be filed.

Below are three areas of employment law that produce some thorny issues: attendance, personal conduct, and sexual harassment. Each section provides a scenario, best- and worst-case scenarios, the legal issues involved, and suggestions for handling the issue.

1. Attendance
Bill frequently shows up late for work on Monday, and some Fridays he doesn't come to work at all. You've talked to him about this issue and have considered firing him. You have struggled with how much grace to give him. After some soul-searching on the weekend, you decide to let him go.

When you get to the office Monday, a voice mail message awaits you. On it, Bill says he's hurt his back and his doctor won't let him work for another three weeks. You decide it wouldn't be good to fire him today, so you wait until he returns to work before terminating him. Bill sues, saying you fired him because of his disability. You know you fired him because of the previous problems, but can you prove it?

Best Case: In the best-case scenario, you have an established attendance policy and have maintained accurate records of Bill's absences. In addition, your employee handbook explains that Bill is an at-will employee and can be terminated at any time. Finally, you give performance appraisals at least once a year and have kept a record of Bill's evaluations.

Worst Case: In the worst-case scenario, you have no records at all. Without documentation, it could be very difficult to terminate Bill. You should seek counsel about how best to proceed.

The Law: A variety of state and federal laws could come into play on this issue, including the Family Medical Leave Act, Americans with Disabilities Act, or state disability laws. Know the laws that apply to you. When in doubt, call a local attorney.

Suggestions:

  • Maintain confidential personnel records on each employee.
  • Store all personnel records in a secure, locked area.
  • Keep accurate attendance records regarding absences and tardiness.
  • Keep detailed information regarding an employee's performance, such as annual performance reviews and any disciplinary actions. Ensure this information is accurate.
  • Make sure personnel records don't include identifying information such as an employee's race, color, sex, national origin, age, disability, or marital status.
  • Record all changes in employee status, such as promotions, leaves of absence, or rates of pay.
  • Store records containing medical information in a secure location separate from other personnel records, because such information is subject to a higher level of privacy protection.

2. Personal Conduct
Pam and Tina are close friends who work at a church-operated day-care center. Members of the church are expected to abstain from drinking alcohol. Pam and Tina enjoy going out together on the weekends and frequently laugh and talk at work about their weekend experiences, which often include drinking at local bars.

One Monday, their co-workers learn Pam and Tina went bar hopping over the weekend, got drunk and drove themselves home. They're concerned that Pam and Tina might not set a good example for the children. You direct the day-care center. What should you do?

Best Case: Ideally, you already have a personal conduct policy that outlines what is considered unacceptable behavior by your organization. You should also have a personal conduct contract that both Pam and Tina signed when they accepted employment at the day-care center. Furthermore, all of your employees should have gone through regular training sessions that outline their rights and responsibilities for employment.

Worst Case: You don't have any policies in place. It will be difficult to discipline or fire Pam and Tina without facing a legal challenge. They could argue that what they do on their own time is nobody else's business. They could also say that they weren't aware of the standards or didn't agree to them.

The Law: State laws give employers varying degrees of control over employees' conduct outside of work. In some states, churches have more freedom than other organizations to regulate employees' behavior outside the workplace because churches are religious organizations. You should know the law in your state. If in doubt, ask your attorney. For background information, the U.S. Equal Employment Opportunity Commission is a great place to start.

Suggestions:

  • Get signed statements from the people who witnessed the behavior or overheard Pam and Tina talking about it.
  • Discuss the allegations with Pam and Tina. Allow them to explain their actions.
  • If you have policies governing the type of behavior they exhibited, give them a copy of the policies they violated.
  • If you don't have a policy, you may wish to warn both of them that any future behavior of this sort could result in termination.
  • Take appropriate disciplinary action.

3. Sexual Harassment
Sharon, a church secretary, approaches you with a problem she's been having with Bernie, a youth pastor. She says Bernie has been hugging her, making sexual comments, and sending her inappropriate images from the Internet. It's making her very uncomfortable.

You caught Bernie viewing pornography on his office computer a few months ago and had a serious talk with him. Bernie promised it wouldn't happen again, and you agreed not to bring it up again. Bernie would be a hard person to replace. Sharon, on the other hand, tends to be emotional and blow things out of proportion. How should you handle Sharon's complaint?

Best Case: If you've done your homework, your church already has an electronic media policy along with a policy that states sexual harassment won't be tolerated and will result in disciplinary action. In addition, you've trained employees about how to detect and report sexual harassment.

Worst Case: You don't have any such policies in place. Before taking action, you should consult your attorney for advice, because you're stepping into a legal minefield.

The Law: The U.S. Supreme Court has held employers strictly responsible for acts of sexual harassment committed by supervisory employees, even if the employer prohibited the conduct or was unaware of the conduct. When you're reviewing allegations of sexual harassment, it's important to remember that your personal opinion of Bernie or Sharon is irrelevant. You're dealing with a serious legal issue.

Suggestions:

  • Don't ignore the situation.
  • Don't tell Sharon to deal with it herself. While it may be appropriate in other circumstances for two people to resolve a grievance one-on-one (in accordance with Matthew 18:15-17), it's not the proper way to deal with sexual harassment.
  • Investigate Sharon's complaint to determine whether Bernie's behavior violates either your sexual harassment or electronic media policy. An electronic media policy explains that a person could be disciplined for using computers or e-mail to transmit or access information that is illicit, unsavory, pornographic, or harassing.
  • If you have a way to review e-mail records or check what Internet sites Bernie has accessed, do an inventory of them. This evidence will be useful when confronting Bernie.
  • Discuss the incident with Bernie and Sharon, separately, to get both sides of the story. Interview other witnesses and get signed statements from them.
    If you find a violation, discipline Bernie appropriately. In many cases, this will mean termination.
  • Don't punish Sharon for reporting the behavior.

If you must terminate Bernie, here are some guidelines to follow:

  1. Beware of the church rumor mill. Limit your explanation to the church staff and congregation. Say he violated church policy. Avoid specifics.
  2. Later, if a potential employer asks you to provide a reference for Bernie, limit your comments to the dates of his employment.

Even the best-run churches may expect employment conflicts from time to time. It may be unpleasant to consider worst-case scenarios, especially within your church family, but preparing for them in advance could actually prevent them from happening. If you haven't done so already, consult with an attorney to determine what steps you can take to improve your ministry's employment practices. To broaden your knowledge, be sure to read “Employment Liability: Myths and Misconceptions” and a summary of key employment laws located in Brotherhood Mutual’s free article archive.

[from the Brotherhood Mutual website...]

FOR DISCUSSION:  What precautions has your church made in this area, if any?

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May 3, 2006 in Personnel Issues | Permalink

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Comments

Our precautions are nothing this detailed. But I guess we are going to have become more intentional in this regard. We are completely off the grid on this but it is not as comprehensive as the examples above. Acutally it is kind of sad really.

Posted by: Kent | May 3, 2006 12:18:08 PM

It is sad, but it's a fact of life today. And it would be a real shame to see a good ministry damaged or destroyed by something like this. That's why it is necessary, and being a good steward of the church, to take the time to protect the church. I would think there would be plenty of resources and guidelines available online to guide us.

Posted by: DanielR | May 3, 2006 3:53:54 PM

Yes they would...... You think you might know people but it seems to be the ones you would never had thought they would do that to you. I don't put anything past anyone anymore.

Posted by: Clairvoyant 1 | May 4, 2006 6:36:47 PM

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