1. The religious organization should “hold out” its ministerial employees as being ministers. This is an overarching concept with component parts described below. Primarily, though, holding an employee out as a minister refers to the org’s communication (both internal and external). Consistent communication is key and can be achieved in part through organizational newsletters, staff listings on websites, and all other private and public written and spoken communications making reference to staff.
2. The role of the minister should be distinct from the role of nonministers within the organization. The more distinct, the better the argument that these are a special class of employee and should be subject to different standards.
3. The job duties of the minister should include responsibilities that are unambiguously religious. Consider including in the minister’s written job description responsibilities such as: discipling those under the minister’s management; annual spiritual retreats or days of prayer and vision with corresponding spiritual growth plans submitted to supervisors or boards; and/or scriptural or religious principle teaching responsibilities.
4. To the extent reasonable, the job qualifications of the minister should include qualifications that are unambiguously religious. Consider employment qualifications for your ministers such as proven track record of religious service, spiritual character and maturity references from religious leaders, ecclesiastical certifications, etc.
5. Then, of equal importance, perform and keep records of annual performance evaluations for these employees, including evaluations of their performance on the religious responsibilities.
6. Consider providing an internal, or seeking an external, certification of the ministerial status of the employee.
7. Provide a religious job title. It may seem a bit contrived to bestow upon your VP of Communications the title of “Ambassador of the Religious Message of XYZ Ministry” or “Minister of Communication,” but this relates directly to the first factor mentioned: how you hold out your employees matters to the Court. Additionally, the Court in Hosanna-Tabor placed as much importance on the minister-in-question’s job title as any other indicator of her role as a minister.
8. Provide scriptural support for the responsibilities and qualifications of the position.
9. Provide opportunities for continuing education and training for the ministerial responsibilities and document how these opportunities enhance the ministerial effectiveness of employees.
10. Pray, as an organization, for the employee’s effectiveness in her/his religious responsibilities.
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11. In both the job description/application and the interview, make explicit that the religious qualifications are of paramount importance for this role.
12. Clearly communicate to the employee before extending a job offer, in onboarding documentation (employee handbook and/or training materials), and through regular performance evaluations that the organization considers the employee to be a minister.
13. Through the help of your attorney, consider communicating explicitly to the candidate (pre- employee) the differences between ministerial and nonministerial employment relationships and the legislative protections the candidate may be forfeiting by accepting a ministerial job.
Are There Hazards in Claiming the Ministerial Exception?
Religious nonprofits’ evaluation of the ministerial exception to their workforce has increased substantially in recent years, both because of the new guidance of Hosanna-Tabor and because of new compliance challenges like the increased salary threshold for exemptions under FLSA. The ministerial exception may apply for certain religious organization to exempt certain employees from ADA, ADEA, Title VII, certain state antidiscrimination legislation, and possibly both the FLSA and FMLA 6
. Religious organizations, however, must not be cavalier in their reliance upon the exception.
Religious organizations need to use caution in determining to what extent they will rely upon the ministerial exception for a number of reasons. First, the application of the exception needs to be an employee- by-employee (case-by-case) review. Blanket application will not serve the org well. Second, religious orgs need to consult with experienced religious nonprofit counsel to determine how the ministerial exception has been applied in the jurisdictions in which they operate. It is inaccurate to say that the ministerial exception applies to all federal employment statutes at this time. Third, religious orgs need to weigh carefully the branding for their organization or cause in regards to a lawsuit, where the press may pick up a theme of “XYZ Temple is claiming that they can simply refuse to hire the disabled on the sole basis that XYZ is religious and can therefore operate outside of the laws that protect citizens from discrimination.” Fourth, religious orgs who have not experienced the ordeal of litigating an affirmative constitutional defense should discuss with their religious nonprofit attorney exactly what such a defense would entail. The defense’s ultimate cost, including ministry disruption, press and public scrutiny, and legal fees may be enough to encourage the religious org that it would be easier in many cases to subject itself to FLSA, FMLA, or other requirements, rather than “win” a legal case on a constitutional matter. Fifth, and last, there is always potential that the next legal opinion on the ministerial
© 2016 by the Association of Christian Schools International
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