Summary of Major Federal Employment Laws Affecting Churches

SUMMARY OF MAJOR FEDERAL EMPLOYMENT LAWS AFFECTING CHURCHES

Kilpatrick Townsend & Stockton LLP Suite 2800 1100 Peachtree Street Atlanta, Georgia 30309

Introduction

Georgia is probably the most employer-friendly state in the country. It has a strong tradition of protecting employment at will and the right of the employer and employee to freely decide if they will continue the employment relationship. Georgia is a “right to work” state that does not compel unwilling workers to join unions. In short, it provides an environment that is conducive to the successful operation of good business.

However, Georgia employers are still subject to a number of restrictions. Although Georgia does not duplicate many of the federal antidiscrimination laws as some other states do, the federal equal employment laws are vigorously enforced in Georgia. In addition, there are a number of state laws and restrictions that employers must keep in mind.

This book is intended to provide an introduction to this regulatory landscape. It is not, of course, an attempt to provide legal advice or a substitute for consultation with a lawyer or analysis of specific circumstances and legal authorities.

The following is a brief summary of major federal employment statutes. These summaries are not intended to substitute for legal advice, and statutes and case law should be reviewed for a full understanding of the details of these laws.

A. Title VII of the Civil Rights Act of 1964 (“Title VII”) 1. Coverage and Requirements for Compliance Under Title VII Title VII covers all private employers and state and local governments that employ 15 or more individuals, labor organizations, and employment agencies that employ 15 or more individuals. Title VII makes it unlawful to discriminate against applicants and employees on the basis of their race, color, sex, religion, or national origin.

Title VII prohibits discrimination in a number of areas of employment, including (i) hiring and firing; (ii) compensation, (iii) assignment or classification of employees; (iv) transfer, promotion, layoff, or recall; (v) job advertisements; (vi) recruitment; (vii) testing; (viii) use of company facilities; (ix) training and apprenticeship programs; (x) fringe benefits; (xi) pay, retirement plans, and disability leave; and (xii) other terms and conditions of employment. Discriminatory practices under Title VII also include (i) harassment on the basis of race, color, religion, sex, or national origin; (ii) retaliation against an individual for filing a charge of discrimination, participating in an investigation of alleged discrimination, or opposing discriminatory policies or practices; (iii) employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, religion, or ethnic group; and (iv) denying employment opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, or national origin.

Finally, Title VII requires that employers post notices to all employees advising them of the rights available under Title VII. Such notices must be accessible, as needed, to persons with visual or other disabilities that affect reading. The law is enforced by the Equal Employment Opportunity Commission (“EEOC”), which can file litigation in federal court. Private individuals who file a charge of discrimination with the EEOC within 180 days of a discriminatory event and comply with administrative prerequisites may file lawsuits to enforce their rights.

2. Categories Protected Under Title VII a. Race and Color A principal focus of Title VII is the prohibition against discrimination on the basis of race and color. Employment decisions motivated by race or color are generally illegal, except in the rare instances where race or color is a bona fide occupational qualification. Further, reliance on racial stereotypes can render an employment decision unlawful. In addition, basing an employment decision on a facially neutral factor or condition that disproportionately affects a particular race may, under certain circumstances, be prohibited under a disparate impact theory if the use of that criteria adversely affects a

3 particular race. Discrimination on the basis of color may include some types of discrimination between individuals of the same race.

b. National Origin Discrimination Under Title VIPs prohibition against national origin discrimination, it is illegal to discriminate against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. A rule requiring that employees speak only English on the job may violate Title VII unless an employer shows that the requirement is necessary for conducting the business.

Title VII’s prohibition of national origin discrimination overlaps broadly with the Immigration Reform and Control Act of 1986 (“IRCA”), which requires employers to assure that they hire employees who are legally authorized to work in the United States. An employer who requests employment verification only for individuals of a particular national origin or individuals who appear to be or sound foreign may violate both Title VII and IRCA; verification must be obtained from new hires.

c. Religious Accommodation Requirement Under Title VII, an employer is not permitted to discriminate against an individual because of his or her religion. Title VII also requires employers to reasonably accommodate the religious beliefs and practices of an employee or prospective employee. Title VII’s definition of religious beliefs extends to all aspects of an employee’s religious observance and practice. Accommodation of religious beliefs and practices is not required, however, if the employer demonstrates that to do so would impose “undue hardship.” Such undue hardship may exist, for example, when the employee’s work during an absence for religious observance cannot be performed by another employee of substantially similar qualifications.

d. Sex Discrimination Title VII prohibits harassment on the basis of sex, as well as on the basis of other prohibited criteria. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. There are two types of sexual harassment: quid pro quo and hostile environment. Quid pro quo sexual harassment occurs when a supervisor or manager makes a job benefit contingent on the exchange of sexual favors or a job detriment contingent on an individual’s refusal of sexual advances. Employers will be held vicariously liable for the conduct of supervisors who commit quid pro quo sexual harassment. Hostile work environment sexual harassment occurs when a supervisor or manager, a nonsupervisory co-worker, or a third party in the workplace engages in sexually related conduct toward an employee that is so severe or pervasive that it alters the terms and conditions of employment. In the case of hostile environment sexual harassment created by a manager or supervisor, when no tangible employment action (for example, discharge or denial of a promotion) is taken, an employer may avoid liability when it takes prompt, reasonable steps to prevent and correct the harassing behavior. Such steps include implementing and enforcing an antiharassment policy, training supervisors and managers, and conducting prompt investigations of and taking remedial action against perpetrators of sexual

4 ©2015 Kilpatrick Townsend & Stockton LLP. All rights reserved. harassment. If the hostile environment is created by a non-supervisory co-worker or a third party (such as a vendor or customer), an employer will be liable if it knew or should have known of the harassing conduct and failed to take prompt, remedial action to correct it.

The prohibition on sex discrimination has recently been administratively extended to discrimination based on a person’s gender identity or transsexualism. In 2012, the Equal Employment Opportunity Commission (“EEOC”), the agency that enforces Title VII, unanimously held that discriminating against an employee or applicant on the basis of that individual’s gender identity, change of sex, and/or transgender status violates the prohibition on sex discrimination contained in Title VII. While the EEOC’s decision is only directly binding on federal agencies at this time, private employers will likely feel the impact as the EEOC will accept and investigate all charge of transgender discrimination made by employees of federal, state, and private employers.

The EEOC has also taken the position that Title VII prohibits sexual preference discrimination.

e. Pregnancy Discrimination Act of 1978 (“FDA”) The Pregnancy Discrimination Act (“PDA”) amended Title VII in 1978 to extend its prohibition of discrimination on the basis of sex to include discrimination based on pregnancy, childbirth, and related medical conditions. Under the PDA, pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.

In UAW v. Johnson Controls, Inc.,1 the Supreme Court ruled that the fetal-protection program of the employer in that case was discriminatory. Any employer considering a fetal-protection program should review this decision.

B. Title I of the Americans with Disabilities Act of 1990 (“ADA”) 1. Introduction The ADA prohibits private, state, and municipal employers that employ 15 or more employees, labor organizations, and employment agencies from discriminating against otherwise qualified individuals with a disability who can perform the essential functions of a job, with or without a reasonable accommodation that does not impose an undue hardship on the employer. The ADA also prohibits discrimination against individuals, whether disabled or not, because of their relationship to or association with a person with a disability. The ADA prohibits disability discrimination in the same broad aspects of employment that apply to Title VII, as enumerated in A.1. above, and otherwise broadly prohibits disability discrimination in public services, transportation, and public accommodations.

1499 U.S. 187 (1991).

5 An individual with a “disability” under the ADA is a person who has a physical or mental impairment that “substantially limits” one or more “major life activities,” has a record of such an impairment, or is “regarded as” having such an impairment. “Major life activities” include activities that an average person can perform with little or no difficulty such as walking, breathing, seeing, hearing, speaking, learning, and working.

The ADA Amendments Act of 2008 (“ADAAA”) retained the ADA’s basic definition of “disability” but redefined terms in each prong of the definition so as to broaden the ADA’s coverage. The ADAAA: (i) expands the definition of “major life activities” to include “major bodily functions;” (ii) redefines who is “regarded as” having a disability to include those individuals with an actual or perceived impairment; (iii) directs that the term “substantially limits” be construed in favor of expansive coverage; (iv) specifies that “disability” includes any impairment that is episodic or in remission if it would substantially limit a major life activity when active; and (v) prohibits consideration of the ameliorative effects of “mitigating measures” when assessing whether an impairment substantially limits a person’s major life activities.

Major bodily functions include functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

2. “Qualified Individual with a Disability” A qualified individual with a disability is someone who satisfies the skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position.

3. “Reasonable Accommodation” Employers are required to reasonably accommodate qualified individuals with a disability. Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. Reasonable accommodation may be necessary to apply for a job, to perform job functions, or to enjoy the benefits and privileges of employment that are enjoyed by people without disabilities. An employer is not required to lower production standards to make an accommodation. An employer is also not generally obligated to provide personal use items such as eyeglasses or hearing aids.

4. “Undue Hardship” An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an undue hardship on the operation of the employer’s business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business’s size, financial resources, and the nature and structure of its operation.

6 ©2015 Kilpatrick Townsend & Stockton LLP. All rights reserved. 5. Prohibited Inquiries and Examinations Before making an offer of employment, an employer may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with business necessity.

6. Drug and Alcohol Use Employees and applicants currently engaging in the illegal use of drugs are not protected by the ADA when an employer acts on the basis of such use. Tests for illegal use of drugs are not considered medical examinations and, therefore, are not subject to the ADA’s restrictions on medical examinations. Employers may hold individuals who are illegally using drugs and individuals with alcoholism to the same standards of performance as other employees, including prohibitions against using or being under the influence of drugs or alcohol at work.

C. Civil Rights Act of 1991 The Civil Rights Act of 1991 amended various civil rights laws, including Title VII, the ADA, and 42 U.S.C. § 1981. Among the most significant features of the 1991 Act are the changes it made to the remedial and enforcement provisions of Title VII and the ADA. The 1991 Act authorized the award of compensatory and punitive damages to individuals who have been subjected to intentional discrimination, and claimants seeking such damages are entitled to a jury trial.

Under the Act, depending on the size of the employer, the sum of compensatory and punitive damages is capped at various prescribed levels: (1) $50,000 for employers with 100 or fewer employees; (2) $100,000 for employers with 101 to 200 employees; (3) $200,000 for employers with 201 to 500 employees, and (4) $300,000 for employers with more than 500 employees. However, a backpay award is not limited by the cap on compensatory and punitive damages.

For claims brought under the ADA, employers who act in “good faith” (as defined by the ADA) when providing a reasonable accommodation will not be liable for compensatory and punitive damages in connection with an unlawful failure to accommodate a disability.

The 1991 Act also contains restrictions on the use of employment tests by specifically prohibiting the adjustment of scores, using different cut-off scores, or otherwise altering the results of test scores on the basis of race, color, religion, sex, or national origin.

D. 42 U.S.C. Section 1981 Section 1981, also known as the Civil Rights Act of 1866, prohibits discrimination on the basis of race in making and enforcing contracts, including employment contracts. The Civil Rights Act of 1991 amended Section 1981 such that it now operates generally to prohibit intentional race discrimination in employment.

7 E. Age Discrimination in Employment Act of 1967 (“ADEA”) The ADEA prohibits employers, labor organizations, and employment agencies that employ 20 or more individuals from discriminating on the basis of age against applicants and employees who are forty years of age or older. The ADEA prohibits discrimination in the same employment areas covered under Title VII, as enumerated above in Section I.A.1. The Act also prohibits discrimination on the basis of age by apprenticeship programs, including joint labor-management apprenticeship programs, and the denial of benefits to older employees. An employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

The ADEA also specifically prohibits statements of age preference and limitations in job notices and advertisements. An age limit may be specified only in the rare circumstance where age has been proven to be a bona fide occupational qualification or “BFOQ.”

The Supreme Court held in General Dynamics Land Sys., Inc. v. Cline,2 that the statute did not prohibit “reverse age discrimination.” That is, employers are permitted to favor older workers over relatively younger ones.

F. The Rehabilitation Act of 1973 The Rehabilitation Act of 1973 (“Rehabilitation Act”) preceded the Americans with Disabilities Act (“ADA”) and consists of several sections covering disability discrimination. For private employers, the major sections of the Rehabilitation Act are Section 503 and Section 504. Both sections protect qualified individuals who have a disability, who have a record of a disability, or who are regarded as having a disability. In the context of employment, an individual is “qualified” if he or she is capable of performing a particular job with or without reasonable accommodations. An employer is not required to accommodate an individual’s disability if it would result in an undue hardship for the employer. Individuals currently engaging in the illegal use of drugs are not “individuals with a disability” and are not protected by the Rehabilitation Act or the ADA against adverse employment actions based on their current, illegal drug use Section 503 of the Rehabilitation Act requires federal contractors to take affirmative action to employ and promote qualified individuals with disabilities. Specifically, Section 503 applies to any employer with a federal contract or subcontract in excess of $10,000 for the purchase, sale, or use of personal property or nonpersonal services, including construction. Regulations promulgated to enforce Section 503 provide specific steps that employers must follow to ensure that they are complying with Section 503’s affirmative action requirement. If an employer has a federal contract or subcontract of $50,000 or more and has 50 or more employees, it must establish an affirmative action plan in writing. In March 2014, revised regulations setting forth the affirmative action obligations under Section 503 went into effect, imposing new data-collection requirements, establishing a seven-percent utilization goal for employees with disabilities, and requiring covered contractors to invite applicants with disabilities to self-

2540 U.S. 581 (2004).

8 ©2015 Kilpatrick Townsend & Stockton LLP. All rights reserved. identify as such at both the pre- and post-offer stages of the hiring process. Section 503 is enforced by the Office of Federal Contract Compliance Programs, and private causes of action are not available to aggrieved individuals under Section 503. If an employer violates Section 503, its contract with the federal government may be cancelled, terminated, or suspended, the employer may be debarred from future contracts, and the employer may be liable to the aggrieved individual for back pay.

Section 504 of the Rehabilitation Act applies to any program or activity that receives federal funds. Section 504 prohibits the recipients of federal funds from excluding or denying a qualified individual with a disability an equal opportunity to receive program benefits and services, including employment. To be “qualified” for participation in a federally funded program, an individual must meet all of the program’s requirements. In effect, therefore, employers who receive federal funds cannot deny employment opportunities to qualified individuals with a disability on the basis of the disability. Section 504 is enforced by the particular federal agency that has provided the federal funds, but aggrieved individuals also have a private cause of action under Section 504.

G. Genetic Information Nondiscrimination Act of 2008 1. Coverage and Requirements for Compliance under GINA The Genetic Information Nondiscrimination Act (“GINA”) applies to employers with 15 or more employees, state and local governments, labor organizations, and employment agencies. Title II of GINA makes it unlawful to discriminate against an individual on the basis of genetic information in regard to hiring, discharge, compensation, or terms, conditions, or privileges of employment. Under Title II of GINA, it is also illegal to harass a person because of his or her genetic information. GINA also makes it illegal to fire, demote, harass, or otherwise retaliate against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.

“Genetic information” is defined as information about (i) an individual’s genetic tests; (ii) the genetic tests of that individual’s family members; (iii) the manifestation of a disease or disorder in family members of the individual (family medical history); (iv) an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic information by the individual or a family member of the individual; (v) genetic information of a fetus carried by an individual or family member; and (vi) genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.

Individuals wishing to assert claims of discrimination under GINA must file a charge of discrimination within 180 days of the alleged discriminatory event. The claimant filing the charge may not file a lawsuit under Title II of GINA until he or she receives a “right to sue” notice from the EEOC.

2. Acquisition of Genetic Information and Exceptions GINA prohibits covered employers from requesting, requiring, or purchasing genetic information relating to their employees and applicants. An employer will not be in

9 violation of GINA’s prohibitions as long as its acquisition of the information falls into one of six narrow exceptions: (i) the employer inadvertently requests or requires genetic information about the individual or the individual’s family member, such as through a casual conversation or as part of documentation provided to support a request for a reasonable accommodation, so long as the request was lawful; (ii) the information is obtained as part of an employer-offered health or genetic services program, such as a voluntary wellness program; (iii) the information is obtained as part of an employer’s lawful request for medical information to comply with the certification provisions of the Family and Medical Leave Act (“FMLA”) or similar state laws; (iv) the employer acquires genetic information from documents that are commercially and publicly available for review or purchase; (v) the employer acquires genetic information for use in the genetic monitoring of the biological effects of toxic substances in the workplace; or (vi) the employer conducts DNA analysis for law enforcement as a forensic laboratory or for purposes of human remains identification, where the employee’s genetic information is used to detect sample contamination.

3. Confidentiality Under GINA, it is also unlawful for a covered employer to disclose genetic information about applicants or employees. An employer that possesses genetic information about its employees must treat the information as a confidential medical record. Accordingly, it must maintain such information on forms and in medical files that are separate from personnel files.

H. Fair Labor Standards Act (“FLSA”) The FLSA governs minimum wage, overtime pay, and child labor requirements for employees engaged in interstate commerce and for employees employed by an enterprise affecting interstate commerce. In general, the law applies to most employees for work done for most employers, although there are certain exceptions for certain industries and locations.

The minimum wage requirements of the FLSA are intended to guarantee a minimum standard of living necessary for health, efficiency, and general well-being. Since July 24, 2009, the minimum wage under the FLSA has been $7.25 per hour. States are free to require employers to pay a higher minimum wage.

The FLSA’s overtime provisions require that each employee be paid an overtime wage of 1.5 times the “regular” hourly rate of the employee for all hours worked over 40 in any workweek, unless the employee is considered “exempt” from overtime. This requirement can be met either by the standard 1.5 times method or by the fixed wage for fluctuating work week method if certain conditions are met. Employees who work in executive, professional, computer professional, or administrative capacities, or as outside salespersons are exempt from the overtime provisions of the FLSA. These exemptions are subject to detailed tests. Certain employees of motor carriers may also be exempt from the overtime provisions of the FLSA. Several other overtime exemptions are available under the FLSA.

10 ©2015 Kilpatrick Townsend & Stockton LLP. All rights reserved. Employees who are not paid in compliance with the law may complain to the U.S. Department of Labor or can file a lawsuit in federal court to recover unpaid wages, attorneys’ fees, and liquidated damages. The FLSA prohibits employers from retaliating against employees who file claims under the FLSA. In addition to the foregoing remedies available in a civil lawsuit, the FLSA provides for criminal penalties (including fines and imprisonment), which are most often used for repeat offenders.

The FLSA’s child labor provisions restrict the employment of children in certain industries and occupations based on their age. The FLSA generally imposes a minimum age of 16 years for most industries, although there are exceptions and further limitations. Some special provisions exist for children working for parents and relatives on family farms. Often, work certificates may be required to employ youths during the school year.

I. Equal Pay Act of 1963 (“EPA”) The EPA, which was enacted as an amendment to the FLSA, covers all employees who are covered by the FLSA. Virtually all employers are subject to the provisions of this Act. The EPA prohibits discrimination on the basis of sex in the payment of wages or benefits, when men and women perform equal work of equal skill, effort, and responsibility in the same establishment for the same employer under similar working conditions. A violation of the EPA may also occur when an employer pays a different wage to a person who worked in the same job before or after an employee of the opposite sex. An employer can avoid liability only by proving by a preponderance of the evidence that the pay differential is justified by one of the four exceptions in the EPA. The first three exceptions apply to differences in pay based on a seniority system, a merit system, or an incentive system. The fourth exception allows an employer to justify pay differentials based on “any other factor other than sex.” The employer’s burden is a heavy one.

On the other hand, pay differentials based on factors other than sex are not unlawful. Where an improper pay differential does exist, the EPA does not permit an employer to reduce wages of any employee to comply with the Act or retaliate against any employee for attempting to enforce the provisions of the Act.

J. Family and Medical Leave Act (“FMLA”) The federal Family and Medical Leave Act (“FMLA”) applies to private employers with 50 or more employees and to all federal, state, and local public agencies. The benefits of the FMLA are available to employees who have worked a total of at least 12 months for the employer, who have provided at least 1,250 hours of service during the 12 months before the start of a family or medical leave, and who work at or report to a worksite at which or within 75 miles of which the employer employs 50 or more employees. The FMLA provides an entitlement of up to 12 weeks of job-protected, unpaid leave during any 12-month period for the following reasons: the birth or care of the employee’s newborn child; the placement of a child with the employee for adoption or foster care; to care for a spouse, child, or parent with a serious health condition; the - employee’s own serious health condition; or any qualifying exigency arising from the

11 employee’s spouse, child, or parent being on active duty or ordered to active duty in the armed forces for deployment outside the United States. The FMLA provides an entitlement to up to 26 weeks of job-protected, unpaid leave in a single 12-month period to care for a U.S. service member or veteran who is a family member and who has a serious injury or illness incurred or aggravated in the line of duty while on active military duty. For purposes of leave to care for a service member or veteran with a serious injury or illness, “family member” is defined as the employee’s parent, spouse, or child or other relative to whom the employee is the next of kin.

During periods of FMLA leave, an employer must maintain group health benefits that the employee was receiving at the time leave began at the same level and in the same manner as if the employee had continued to work. Under most circumstances, an employee may elect, or the employer may require, the use of any accrued paid leave (e.g., vacation, sick, or personal leave) for periods of unpaid FMLA leave. FMLA leave may be taken in one continuous block of time, or it may be taken in separate blocks of time on an intermittent or reduced-schedule basis. Taking intermittent or reduced- schedule leave for the placement of a child with the employee for adoption or foster care or for the birth and care of a healthy newborn child is subject to approval by the employer. FMLA leave relating to a serious health condition (including pregnancy- related disability) or a serious military-service-related injury or illness may be taken on an intermittent or reduced-schedule basis when leave in that form is medically necessary, regardless of the employer’s approval.

When leave is foreseeable, an employee must provide the employer with at least 30 days’ notice of the need for leave. If the leave is not foreseeable that far in advance, notice must be given as soon as practicable. An employer may require medical certification of a serious health condition or a serious injury or illness from a health care provider and, during the leave, may require periodic reports of the employee’s status and intent to return to work, as well as a “fitness-forduty” certification upon return to work in appropriate situations.

An employee who returns from FMLA leave is entitled to be restored to the same job or to an equivalent position with equivalent pay, benefits, and responsibilities. The employee is not entitled to accrue benefits during periods of unpaid FMLA leave.

Employers are prohibited from discriminating against or interfering with employees who take or request FMLA leave. Employers are required to post a notice in the workplace that outlines the basic provisions of the FMLA and are subject to a civil monetary penalty for willfully failing to post such notice. Employers are also required to give an employee who requests an FMLA leave a written notice indicating whether the employee is eligible for FMLA leave and setting forth their rights and obligations under the FMLA. An employer must also give an employee who requests a leave that may be covered by the FMLA a notice indicating whether the leave is designated as FMLA leave. Although the failure to provide these individual notices does not result in a civil monetary penalty, it can lead to employer liability for interfering with FMLA rights.

12 ©2015 Kilpatrick Townsend & Stockton LLP. All rights reserved. Employees may file complaints with the U.S. Department of Labor alleging violations of the FMLA. The Secretary of Labor may then file suit to ensure compliance and recover damages if a complaint cannot be resolved administratively. Employees may also file civil lawsuits without the involvement of the Department of Labor to correct violations and recover damages.

In addition to the FMLA, some states have family and medical leave statutes, and nothing in the FMLA supersedes a provision of state law that is more beneficial to the employee.

K. Occupational Safety and Health Act of 1970 (“OSHA” Antiretaliation Provision) This provision applies to any employer engaged in a “business affecting commerce,” and provides that such employer cannot discharge or otherwise discriminate against any employee who exercises his or her rights under OSHA, or files an OSHA complaint.

L. Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”) This law requires employers with federal contracts or subcontracts of $100,000 or more to take affirmative action to hire and promote qualified covered veterans. Covered veterans include disabled veterans, recently separated veterans, Armed Forces service veteran medal, and active duty wartime or campaign badge veteran.

M. Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) Both a federal law and some state laws apply to employees who serve in the military. The federal act, USERRA, applies to persons who perform voluntary or involuntary duty in the “uniformed services” of the United States. These services include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), and initial active duty training, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

USERRA entitles employees who have been absent from work for service in the uniformed services to job restoration rights if they meet the following eligibility criteria:

 The person must have held a civilian nontemporary job;

 The person must have given notice to the employer that he or she was leaving the job for service in the uniformed services;

 The period of service must not have exceeded five years (although many exceptions to this five-year limitation exist);

13  The person must have been released from service under honorable conditions; and

 The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment.

Job restoration rights are based on the duration of military service rather than the type of military duty performed, such as active duty for training or inactive duty.

USERRA also prohibits employers from discriminating against eligible employees because of their military service and from discharging a reinstated veteran without cause for a period after restoration of employment. The period depends on the length of service. If an employee served more than 180 days, the period is one year; if the employee served less than 181 days but more than 30 days, the period is 6 months. Additionally, USERRA guarantees reemployed persons pension plan benefits that accrued during military service and provides health benefits continuation for service members and their families during military service for up to 18 months.

Although USERRA does preempt state laws providing lesser rights or imposing additional eligibility criteria, it does not preempt state laws providing greater or additional rights. Indeed, Georgia has a military leave law that is more generous than federal law_ It requires an employer to reinstate an employee who has left work to perform military service if the employee applies for reemployment within 90 days of being relieved from military service, regardless of the length of service. If, however, an employee leaves employment to attend National Guard assemblies or annual training or to attend service schools conducted by the United States armed forces for a period not exceeding six months, the employee must apply for reemployment within ten days after completion of the military service.

N. National Labor Relations Act (“NLRA”) This Act applies to private employers in most industries affecting interstate commerce. It prohibits discrimination against employees who engage or decline to engage in concerted activities protected by the NLRA.

However, the National Labor Relations Board does not assert jurisdiction over churches.

O. Worker Adjustment and Retraining Notification (“WARN”) Act The WARN Act applies to “any business enterprise” employing 100 or more employees, excluding employees who have worked less than six months and those who work an average of less than twenty hours per week. The Act requires an employer to give employees who are reasonably expected to suffer employment loss 60 days’ notice of any (1) plant closing that affects 50 or more workers at a single site in a 30-day period, or (2) mass layoff at a single site during any 30-day period (i) resulting in an employment loss for 50 to 499 employees if this number comprises at least 33% of non- part-time employees at the site, or (ii) resulting in an employment loss for at least 500 non-part-time employees. In certain situations, the 30-day period for aggregating

14 ©2015 Kilpatrick Townsend & Stockton LLP. All rights reserved. employment losses is expanded to a 90-day period. Employees who suffer employment loss have a private right of action in federal court for WARN violations. Employers must provide notification of the mass layoff or plant closing to unions and local and state authorities.

P. Federal Contractors and Subcontractors In addition to federal antidiscrimination and other employment-related laws of general application discussed elsewhere, Congress and the Presidents, past and present, have used their governmental procurement powers to require businesses that wish to do business with or receive funds from the federal government to comply with a dizzying array of additional obligations that impact far more businesses than those who contract directly with federal agencies. However, these obligations would not normally apply to churches.

15 Chapter 2: Duty to Report Newly Hired Employees

In 1996, Congress enacted the “Personal Responsibility and Work Opportunities Act” (the “Act”) as part of welfare reform. In part, the Act is designed to enforce child-support obligations. To that end, the Act requires states to establish new-hire reporting laws and create new-hire directories to facilitate the location of noncustodial parents when they change jobs and to facilitate the withholding of child-support payments. Under these reporting systems, employers are required to report information regarding newly hired and rehired employees to the state. Local state law should be consulted for specifics.

Some states place limits on an employer’s ability to rely on or use certain criminal records of employees or applicants. For example Georgia establishes a criminal diversion program for individuals who have not previously been convicted of a felony or certain other crimes. When such a person pleads guilty or nolo contendere (no contest) to a criminal charge, the court may, in lieu of entering an adjudication of guilt, place the individual on probation or sentence the individual to a period of confinement.3 Once the individual successfully completes the terms of the probation or is released from confinement, the individual is completely discharged from the criminal charges without a court adjudication of guilt. An individual who successfully completes this program is not deemed to have been convicted of a crime.4

The Georgia First Offender Act prohibits employers from disqualifying an applicant for employment based on the applicant’s discharge from criminal charges pursuant to the criminal diversion program.5 For example, an applicant who has been discharged from criminal charges pursuant to this program and has no other criminal record may truthfully answer “no” to a preemployment inquiry as to whether the individual has ever been convicted of a crime, and the employer may not reject that applicant for lying on the application about his or her criminal record for so responding.

The Georgia Attorney General has construed the antidiscrimination provision of the Georgia First Offender Act to bar termination from employment as well as disqualification for employment based on a discharge from criminal charges pursuant to the criminal diversion program. However, the Georgia Attorney General has taken the position that an employer may lawfully consider the underlying facts that supported the original criminal charges in making personnel decisions. The Georgia Attorney General has also stated that an employer may consider an individual’s guilty plea in connection with the criminal diversion program as an admission against interest in a subsequent personnel action.6

3 O.C.G.A. § 42-8-60.

4 O.C.G.A. § 42-8-62(a).

5 O.C.G.A. § 42-8-63.

6 Ga. Atty. Gen. Op. U86-25 (Aug. 19, 1986).

17 Chapter 4: Negligent Hiring, Supervision, and Retention

Under the law of many states, an employer can be liable for negligent hiring, supervision, or retention of an employee. Such negligence can result in tort damages. Although the typical physical injury at work of one employee due to the negligence of a fellow employee of the same business will be handled in the workers’ compensation context, negligent selection, supervision, and retention claims can arise in a number of situations. Such claims are typically made when an employee injures a nonemployee. Situations in which the employee will have access to a person’s home or to disabled or vulnerable individuals are areas of particular scrutiny. Access to children is, of course, a particular concern. However, there is no specific limit on the circumstances in which these issues can arise.

Background checks are a good precaution in many circumstances, and individuals with criminal backgrounds or violent histories are appropriate for particular scrutiny. However, employers should be careful about automatic disqualifications, which can raise discrimination issues, and each instance should be reviewed carefully and individually.

Some employers, such as nursing homes, certain medical facilities, and day care and child care centers are required to conduct criminal background checks on certain employees.

The Occupational Safety and Health Act of 1970 (the “Act”) requires employers to provide safe and healthful working conditions. With the approval of and supervision by the Occupational Safety and Health Administration (“OSHA”), many states have developed their own occupational safety and health programs. While OSHA may not cover purely religious activities, it may apply to many church activities.

As required by the Act, OSHA issues safety and health standards with which employers must comply, in the absence of a variance. The standards are detailed and address myriad situations. However, even in the absence of a specific standard, the Act imposes on all employers the general duty to furnish to each employee a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm to ... employees.”

OSHA inspectors will perform workplace inspections either upon their own choosing or as the result of an accident or request for inspection. OSHA inspectors will not give advance notice of these inspections. However, if an employer requires, the inspector must have a warrant – something they can normally obtain.

Upon finding violations, OSHA inspectors will issue citations to the offending employer. In the event an employer disagrees with the citation, the employer has fifteen working days to contest the citation or it becomes a final order and is not subject to review. Once a citation becomes final, it is then on the employer’s record and will lead to a repeat violation (which includes increased penalties) should the employer violate the same standard at any location. Deciding how to handle citations can be very important to a business as the fines can go as high as $70,000 for each violation, and willful violations may result in criminal penalties up to and including imprisonment.

Once an employer receives an OSHA citation, the clock runs quickly on the time to contest and, if necessary, to litigate. Additionally, settlement of an OSHA citation calls on an employer to admit the underlying violation and therefore exposes the employer to future repeat violations should they engage in the same or similar conduct.

19 Chapter 6: Workers’ Compensation

A. Coverage State workers’ compensation laws provide state-specified wage-replacement and medical expense benefits to employees who experience a compensable work-related injury or illness. Although it depends on state law, the requirement for carrying workers compensation insurance often applies to churches.

This section briefly and generally explains the wage and hour requirements that federal laws impose on employers.

The Fair Labor Standards Act of 1938

1. Overview The Fair Labor Standards Act of 1938 (“FLSA”) and its regulations provide standards for minimum wages, overtime compensation, recordkeeping, child labor, and equal pay. It also regulates how employees must be compensated.

2. Coverage The FLSA covers employees of “enterprises.” Employees of an enterprise are covered if the enterprise annually grosses at least $500,000 and is either engaged in interstate commerce, produces goods for interstate commerce, or has employees who handle, sell or otherwise work on goods or materials that have been moved in or produced for commerce by any person. Employees of an enterprise are also covered if the enterprise is a hospital, provides medical or nursing care for residents, is a school, or is a government agency.

The FLSA also covers individual employees who are engaged in commerce or in the production of goods for commerce. Under the FLSA, “commerce” is defined as “trade, commerce, transportation, or communication among the several States or between any State and any place outside thereof.” A court will consider an individual to be engaged in commerce if the individual’s work relates to the actual movement of commerce, the individual regularly uses the channels of commerce, or the work is related to the instrumentalities of commerce.

However, the FLSA only applies when there is an employer-employee relationship. The definition of an employee in the FLSA is very broad. An “employee” is “any individual employed by an employer.” Additionally, the FLSA defines the term “employ” as to “suffer or permit to work.” Generally, a court’s inquiry into whether an employer- employee relationship exists is focused on the economic realities of the relationship. The “economic realities” test focuses on whether the individual is economically dependent on the alleged employer or is in business for himself or herself. A court will be less concerned with contractual terminology or with common law agency concepts.

3. The FLSA’s Requirements a. Minimum Wage Requirements The FLSA requires employers to pay their employees at least $7.25 per hour effective July 24, 2009. If state law mandates a higher minimum wage,. that rate applies to all nonexempt employees.

There are exceptions to the minimum wage requirement. Employers with newly hired employees under the age of 20 may pay those employees an “opportunity wage” of

21 $4.25 per hour for the first 90 consecutive days of employment. However, an employer cannot displace other employees to hire employees under age 20.

Employers can also apply toward satisfaction of an employee’s minimum wage the “reasonable cost” of providing the employee with board, lodging, or other facilities, furnishing meals to the employee, and providing the employee with transportation from home to work, provided that the employer makes no profit.7 Additionally, employers can deduct from an employee’s minimum wage federal, state, and locals taxes, payments owed to a third person pursuant to a court order, payments assigned to a third party provided that the employee has consented, and repayments owed to the employer for a loan from the employer.8

b. Overtime Requirements Under the FLSA, covered employers are required to pay all employees at least one and half times their “regular rate” for each hour, or fraction of an hour, worked in excess of 40 hours during any workweek, unless otherwise exempt.9 A single workweek is the standard and the FLSA does not allow employers to average hours over 2 or more weeks, except for hospital employees, fire protection employees and law enforcement employees.10

An employee’s regular rate cannot be less than minimum wage and ordinarily is calculated each workweek by dividing the total remuneration an employee is paid, with eight specific exclusions, by the total number of hours actually worked during the workweek.11 Nondiscretionary bonuses for accuracy, good attendance, continued employment, and for quality or quantity of work are included in an employee’s remuneration when determining the employee’s regular rate12 However, premium pay for overtime and holiday work, discretionary bonuses, and payments for vacation or illness or similar payments for hours not worked are not included in the employee’s total compensation and should not be used to determine the employee’s regular rate.13

c. Exemptions (i) Timekeeping, Minimum Wage Overtime Exemptions The FLSA and its regulations provide that employees who work in certain industries or positions are exempt from certain timekeeping, minimum wage, and overtime

7 29 U.S.C. § 203(m).

8 29 C.F.R. § 531.39.

9 29 U.S.C. § 207(a)(1).

10 29 U.S.C. § 207(j) & (k).

11 See 29 C.F.R. § 778.108; 29 U.S.C. § 207(e).

12 29 C.F.R. §§ 778.208-778.210.

13 29 C.F.R. 778.203, 778.211, 778.218; 29 U.S.C. § 207(e).

22 ©2015 Kilpatrick Townsend & Stockton LLP. All rights reserved. requirements. The burden of showing that an employee is exempt always lies with the employer. The most common category of timekeeping, minimum wage, and overtime exemptions are “white-collar” exemptions. They are exemptions for bona fide executive, administrative, and professional employees, computer professionals, highly compensated employees, and outside sales people.

To qualify for the executive exemption, the employee must receive a salary of no less than $455 per week, primarily manage the enterprise or a recognized subdivision thereof, direct the work of at least two other full-time employees, and have the authority to effect status changes of other employees or whose recommendations regarding status changes for other employees are given particular weight.14 The administrative exemption requires that the employee receive a salary of no less than $455 per week, primarily perform office or nonmanual work directly related to the management or business operations of the employer or of customers, and exercise discretion and independent judgment with respect to matters of significance.15 To qualify for the non- academic professional exemption, the employee must receive a salary of no less than $455 per week and must primarily perform work that requires knowledge of an advanced type acquired through a prolonged course of specialized study or requires invention, imagination, or talent in a recognized field of artistic endeavor.16

Highly skilled computer professionals are also exempt if they are paid at least $27.63 per hour and their primary duties include the application of systems analysis and techniques, the design, creation, or modification of computer systems, the design or creation of computer programs related to machine operating skills, or a combination of these duties.17 This exemption does not cover junior programmers or other computer operators.

The exemption for highly compensated employees applies to employees with a total annual compensation of at least $100,000 who perform one or more of the exempt duties of an executive, administrative, or professional employee described above.18

An “outside salesperson” is exempt if the employee is customarily and regularly engaged away from the employer’s place of business and is employed for the primary purpose of making sales or obtaining orders or new customers.19 This exemption does not include sales made by phone, mail, or internet.20

14 29 C.F.R. § 541.100(a).

15 29 C.F.R. § 541.200(a).

16 29 C.F.R. § 541.300(a).

17 29 C.F.R. § 541.400.

18 29 C.F.R. § 541.601

19 29 C.F.R. § 541.500(a).

20 29 C.F.R. § 541.502.

23 The second category of minimum wage and overtime exemptions generally applies to employees in specific industries. They are exemptions for certain agricultural employees, amusement and recreational employees, casual babysitters, domestic companions, employees engaged in fishing operations, limited circulation newspaper employees, switchboard operators employed by small public telephone companies, seamen on non-American vessels, and federal criminal investigators.21

(ii) Overtime Only Exemptions The FLSA also exempts certain employees in specific industries from the overtime requirements. For example, the FLSA’s overtime requirement does not apply to employees with respect to whom the Secretary of Transportation has the power to establish qualifications and maximum hours pursuant to provisions of the Motor Carrier Act.22 The overtime requirements also do not apply to railroad or airline employees.23 For a description of other employees who are also exempt from the overtime requirements, please see 29 U.S.C. §§ 213(b)(5)-(30).

d. Recordkeeping Requirements The FLSA requires employers to “make, keep, and preserve” records of employees and of their “wages, hours, and other conditions and practices of employment.”24 The specific regulations regarding recordkeeping are found in 29 C.F.R. § 516 and require employers to maintain certain records for both exempt and non-exempt employees. The extent of an employer’s obligation to maintain records about its employees depends greatly on whether the employee is exempt from the minimum wage or overtime requirements. Employers must maintain the required records for at least 3 years and must keep the records in the place of employment or at a central recordkeeping office where records are customarily maintained.25 The records must be available within 72 hours following a request by the Department of Labor.26

4. Enforcement and Damages The FLSA provides for the following enforcement mechanisms: criminal proceedings, actions by individual employees, collective actions by employees, and actions by the Department of Labor.27 An individual’s right to sue terminates when the Secretary of Labor commences an action.28 Civil actions for nonwillful violations of the FLSA must be

21 29 U.S.C. §§ 213(a)(6)-(16).

22 29 U.S.C. § 213(b)(1).

23 29 U.S.C. §§ 213(b)(2)-(3).

24 29 U.S.C. § 211(c).

25 29 C.F.R. §§ 516.6 and 516.7.

26 29 C.F.R. § 516.7.

27 29 U.S.C. § 216.

28 29 U.S.C. § 216(b).

An employer who is convicted of committing a willful violation of the PISA can be imprisoned for up to 6 months and fined up to $10,000.30 However, an employer cannot be imprisoned for a first offense.31 Additionally, the FLSA provides back pay, liquidated damages, civil penalties, attorneys’ fees, and costs as damages for violations.32

29 29 U.S.C. § 255(a).

30 29 U.S.C. § 216(a).

31 29 U.S.C. § 216(a).

32 29 U.S.C. § 216(b).

25 Chapter 8: Child Labor

A. Overview Most states have some type of child labor law which can affect churches. Church camps are an example of where there is a potential application.

Eighteen is the age of majority in Georgia; anyone younger than eighteen is considered a minor.33 Chapter 2 of Title 39 of the Official Code of Georgia governs the employment of minors working within the state and generally applies to all employers. For the most part, Georgia’s child labor laws are less restrictive than federal child labor laws. Thus, conduct that is permitted in Georgia may be prohibited by federal law. Georgia employers who are covered by the federal Fair Labor Standards Act are responsible for ensuring that their actions comport with that statute as well.

The minimum age for employment under Georgia law is 12, two years younger than the federal minimum employment age of 14. Georgia’s minimum age requirement does not apply to minors employed “in agriculture, domestic service, in private homes,” by their parents or “persons standing in the place of a parent,” or in “any specific employment permitted by” the Official Code of Georgia.34 Although employers are permitted to hire minors over the age of 12, the work conditions of these minors are highly regulated.

It is a misdemeanor to violate any of Georgia’s child labor laws. An employer may be enjoined from employing a child in violation of these laws.35 It is also a misdemeanor for anyone to apprentice or otherwise dispose of a minor to any person for the purpose of using the minor as a rope/wire walker, beggar, “gymnast, contortionist, circus rider, acrobat, or clown, or for any indecent, obscene, or immoral exhibition, practice, or purpose.”36

B. Required Documentation An employer must receive an employment certificate prior to employing a minor. In order to receive an employment certificate, the prospective employer must provide a statement describing the capacity in which the minor will be employed and indicating that it would employ the minor immediately if the certificate were received.37 The minor must present this statement, along with a certified copy of his or her birth certificate or birth registration card, to the superintendent of schools, or an authorized staff member, if the minor is enrolled in public school, or to the principal administrative officer, or an authorized staff member, if the minor is enrolled in private school. The school will then

33 O.C.G.A. § 39-1-1.

34 O.C.G.A. § 39-2-9.

35 O.C.G.A. § 39-2-21.

36 O.C.G.A. § 39-2-17.

37 O.C.G.A. § 39-2-11.

26 ©2015 Kilpatrick Townsend & Stockton LLP. All rights reserved. issue an employment certificate. If the minor is between the ages of 12 and 16 the certificate must show the true age of the minor and “that such minor is not less than 12 years of age and is physically fit to engage in the employment sought to be obtained.”38 Where the minor is age 16 or older, the certificate must state that the minor “is fully 16 years of age.” The school must also issue an identification card to each minor age 16 or older certifying that the minor is eligible for employment.39

In addition to the certificate, the school must also issue a letter stating that the minor is enrolled full-time and has an attendance record in good standing. This letter must be updated “in January of each subsequent academic year during which the minor maintains his or her employment until such minor reaches the age of 18 years or receives a high school diploma, a general educational development (GED) diploma, a special education diploma, or a certificate of high school completion or has terminated his or her secondary education and is enrolled in a postsecondary school.”40 The employer must keep a copy of this letter as well as the employment certificate in the minor’s employment file. Failure to comply with the documentation requirements is a misdemeanor punishable by a fine up to $1,000 and/or up to 1 year imprisonment.41

C. Permitted Employment No minor under 16 years of age is permitted to work at or in the vicinity of any mill, factory, laundry, manufacturing establishment, workshop, or other place of employment that the Commissioner of Labor may deem hazardous or “dangerous to life or limb or injurious to the health or morals” of a minor.42 Thus far, the Commissioner of Labor has deemed hazardous all occupations connected with (1) power driven machinery or equipment, (2) motor vehicles, whether being driven or serviced, such as at a gas station, (3) tools or equipment generally associated with the building and trades industry, (4) meat processing, including freezing or packaging meat, poultry, or seafood, (5) hazardous fixtures or merchandise such as guns, knives, or deep fat fryers, (6) railroads, (7) vessels or boats whether or not in use, (8) poisonous gases, acids, paints, or hazardous quantities of any other airborne substance, (9) construction or utilities, (10) warehouses, (11) excavating, (12) logging, (13) radioactive substances, and (14) demolition.43 Minors age 16 or older must have the proper employment certificate and identification card in order to work in these occupations. Please note that federal law prohibits minors under age 17 from working in many of these occupations.

38 O.C.G.A. § 39-2-11.

39 O.C.G.A. § 39-2-11.

40 O.C.G.A. § 39-2-11.

41 O.C.G.A. § 39-2-11.

42 O.C.G.A. §§ 39-2-1 to 39-2-2.

43 Ga. Camp. R. & Regs. § 300-7-2-.01.

27 Notwithstanding the above designations, a minor may be employed to do office work for any such occupation provided that administrative policy forbids access to all hazards, whether or not listed by the Commissioner of Labor.44 In addition, during summer vacation, minors age 14 or older may be employed to perform lawn, shrubbery, or garden care and maintenance, including the operation of equipment associated therewith, as long as (1) the minor has proper documentation, (2) the lawns are owned or leased by the employer, and (3) “the minor is covered by an accident and sickness insurance plan or a workers’ compensation insurance policy or plan provided by the employer.” Such lawn work may be performed on the grounds of a factory or mill or other business, even though employment within the building would otherwise be prohibited.45

In Georgia, minors are generally prohibited from selling, serving, dispensing, or taking orders for alcoholic beverages. Nonetheless, they may be employed in establishments which sell alcohol for off-premises consumption, such as convenience stores or supermarkets.

D. Work-Hour Restrictions46 1. Ages 12 to 16 Minors under the age of 16 may not work during school hours, unless they have completed high school or have been excused from attendance by the county or the board of education of an independent school system.47 Furthermore, minors under the age of 16 generally may not work between the hours of 9:00 p.m. and 6:00 a.m.48 This time restriction also applies specifically to minors under the age of 16 “employed in the delivery of messages by any person, firm, or corporation engaged in the message service business or in the general work of messenger service.”49 However, minors employed to deliver and/or sell newspapers in residential areas may began their duties at 5:00 a.m., provided that such activities are not performed during school hours.50

Minors between the ages of 12 and 16 may not work more than 4 hours per school day during the months when school is in session. These minors may not work more than 8

44 Ga. Comp. R. & Kegs. §300-7-2-.01.

45 O.C.G.A. § 39-2-11.1.

46 Please note that federal work-hour laws are more restrictive.

47 O.C.G.A. § 39-2-4.

48 O.C.G.A. § 39-2-3.

49 O.C.G.A. § 39-2-5.

50 O.C.G.A. § 39-2-6.

2. Age 16 or Older There are no hour restrictions for minors age 16 or older.

E. Termination of Employment An employer must return the employment certificate to the minor’s school within 5 days of terminating a minor. Likewise, the employer must return the certificate if the minor has failed to report to work for a period of 30 days. The certificate must be returned within 5 days of the 30th day. Once an employment certificate has been returned, the employer must obtain a new certificate in order to re-employ the minor.52

F. Entertainment Industry Employment The child labor code does not apply to minors employed in the entertainment industry, provided that the employer has the written consent of the Commissioner of Labor.53 However, there are various provisions of the Rules and Regulations of Georgia that regulate minors in the entertainment industry, including rules addressing notification, the work environment, work hours, and the child’s education.

51 O.C.G.A. § 39-2-7.

52 O.C.G.A. § 39-2-13.

53 O.C.G.A. § 39.2-18.

29 Chapter 9: Termination of Employees

The federal Worker Adjustment and Retraining Notification Act (“WARN”) addresses facility closing or mass layoff situations.

The federal WARN Act applies to “any business enterprise” employing 100 or more employees, excluding employees who have worked less than six months and those who work an average of less than twenty hours per week. The Act requires an employer to give employees who are reasonably expected to suffer employment loss 60 days’ notice of any (1) plant closing that affects 50 or more workers in a 30-day period or (2) mass layoff at a single site during any 30-day period (i) resulting in a job loss for 50 to 499 employees if this number comprises at least 33% of non-part-time employees, or (ii) resulting in a job loss for at least 500 non-part-time employees. Employees who suffer an employment loss have a private right of action in federal court for WARN violations. In addition to notifying affected employees, employers must provide notification of the mass layoff or plant closing to state and local authorities. If the employees who are expected to experience an employment loss in a plant closing or mass layoff are represented by a union, the employer must notify the union instead of the represented employees.

Of course, the same discrimination and related statutes that govern other terminations and layoffs must also be complied with in a group layoff situation.

If severance agreements and releases are sought in connection with a group termination, the group termination provisions of the federal Older Workers Benefit Protection Act need to be complied with to maximize the enforceability of the releases obtained.54

54 See 29 U.S.C. §§ 626(f)(1)(F)(ii) and 626(f)(1)(H).

30 ©2015 Kilpatrick Townsend & Stockton LLP. All rights reserved. Resolution Number: 1997-A094 Title: Urge Church Bodies to Discontinue Unjust Employment Practices Legislative Action Taken: Concurred as Substituted Final Text:

Resolved, That the 72nd General Convention urge all dioceses, congregations, and Episcopal institutions to discontinue the practice of involuntary termination of employment for no cause, including the practice of requiring pro forma resignations of employees upon the change of bishops or clergy in charge; and be it further Resolved, That dioceses, congregations, and Episcopal institutions be encouraged to develop plans for reviews that will help all parties involved make decisions concerning issues of employment, including termination of employment, which are just and that respect the dignity of all parties involved.

Citation: General Convention, Journal of the General Convention of...The Episcopal Church, Philadelphia, 1997 (New York: General Convention, 1998), p. 783.

Archives Research Report, 1997-A094 Page 1 of 1 COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION ______

JEREMY M. WARNICK, : : Appellant, : DECEMBER TERM, 2011 : NO.: 01539 v. : : ALL SAINTS EPISCOPAL CHURCH, : REV. CHARLES E. BENNISON, : 714 EDA 2014 DIANE CAIRNS, RICHARD CRAIG, and : LINDA COLWELL, : : Appellees. : ______

RAU, J.

OPINION

I. STATEMENT OF THE CASE

This case involves the constitutional question of whether a civil court may interfere with how a church chooses its priest. Specifically, Father Jeremy M.

Warnick (Appellant) sued All Saints Episcopal Church, Charles E. Bennison (the

Episcopal Bishop of Pennsylvania), and three All Saints congregants, challenging

Bishop Bennison¶Vdecision to revoke his license to minister in Pennsylvania,

Bishop Bennison¶VOHWWHUWRthe congregation explaining the decision and statements made by congregants about Father Warnick at a church meeting.

7KH%LVKRS¶VGHFLVLRQVVWHPPHGIURPFRQJUHJDQWV¶FRQFHUQVDERXWFather

:DUQLFN¶VFRQGXFWZKLFK, if true, constituted conduct unbecoming of clergy. At an earlier church meeting, congregants had complained that Father Warnick was living in the rectory with a woman not his wife and that he posted sexual material

1 on Facebook. Father Warnick was paid through the end of his contract even though his license was revoked before the contract was set to expire.

Father Warnick filed a canonical complaint, pursuant to the procedures set forth by the Constitution and Canons of the Episcopal Church, appealing the

%LVKRS¶VGHFLVLRQ and FKDOOHQJLQJWKH%LVKRS¶Vletter to the congregation explaining the decision. The Diocese rejected his claims on all grounds. Father

Warnick then filed this civil complaint, echoing the issues raised in his canonical complaint, FKDOOHQJLQJWKH%LVKRS¶VUHYRFDWLRQRIKLVOLFHQVHDQGclaiming that

WKH%LVKRS¶VDQGFRQJUHJDQWV¶statements made related to that decision were defamatory and interfered with his ability to find work with other Episcopal parishes.

The Defendants (Appellees) in this case are All Saints Episcopal Church

(All Saints), Bishop of Pennsylvania Charles E. Bennison, and All Saints congregants and Vestry members Diane Cairns, Richard Craig, and Linda

Colwell. Father Warnick raised four claims against all Defendants: defamation

(Count I), tortious interference with existing and prospective contractual relations

(Count II), libel/slander (Count III), and civil conspiracy (Count V). He also raised a breach of contract claim against Defendant All Saints (Count IV).

Defendants moved for summary judgment on all claims. This Court granted the Motion for three independently sufficient reasons: (1) the First

$PHQGPHQW¶Vdeference and ministerial exception doctrines bar all claims; (2)

Father :DUQLFN¶VFODLPVIDLODVDPDWWHURIODZLQDUHDVZKere there is no factual dispute; and (3) Father Warnick failed to show evidence essential to prove his

2 claims, resting instead on mere allegations. Father :DUQLFNDSSHDOVWKLV&RXUW¶V dismissal of his claims.

II. UNDISPUTED FACTS

All Saints is a congregation of the Protestant Episcopal Church. (See

'HIV¶0RW6XPP-([$$P. Compl. ¶¶ 2±4.) The Episcopal Church is a hierarchical church governed by a Constitution and Canons that set forth specific requirements delineating the structure, administration, responsibilities, and procedures of its operations. (See 'HIV¶0RW6XPP-([%, Excerpts of

Constitution & Canons of the Episcopal General Convention of the Episcopal

&KXUFK'HIV¶0RW6XPP-([&&RQVWLWXWLRQRIWKH(SLVFRSDO&KXUFK.) As an ordained priest in the Episcopal Church Father Warnick consented to abide by the Constitution and its Canons including its structure of governance. (See 'HIV¶

Mot. Summ. J. Ex. B, Excerpts of Constitution & Canons of the Episcopal

General Convention of the Episcopal Church, at All Saints 13'HIV¶0RW

Summ. J. Ex. D, Warnick Dep. 33:14±17, Aug. 22, 2013.) In addition, all priests agree to comply with the standards of conduct and are subject to discipline for a breach. (See 'HIV¶0RW6XPP-([%([FHUSWVRI&RQVWLWXWLRQ &DQRQVRI the Episcopal General Convention of the Episcopal Church, at All Saints 163.)

7KH6WDQGDUGVRI&RQGXFWUHTXLUHWKDWDSULHVWQRWHQJDJHLQ³FRQGXFW

XQEHFRPLQJDPHPEHURIWKHFOHUJ\´ See 'HIV¶0RW6XPP-([%([FHUSWV of Constitution & Canons of the Episcopal General Convention of the Episcopal

Church, at All Saints 132 & 135.) Father Warnick has acknowledged that when he became an Episcopal priest, he subjected himself to Church discipline. (See

3 'HIV¶0RW6XPP-([':DUQLFN'HS±27, Aug. 22, 2013.) He admits

WKDWWKH&DQRQVVWDWHWKDW(SLVFRSDOFOHUJ\³KDYHE\WKHLUYRZVDWRUGLQDWLRQ accepted additional responsibilities and accountabilities for doctrine, discipline,

ZRUVKLSDQGREHGLHQFH´ See 'HIV¶0RW6XPP- 3O¶V$QVZHULQ2SS¶QWR

'HIV¶0RW6XPP-

At all relevant times, Charles E. Bennison was the Bishop of the Episcopal

Diocese of Pennsylvania. Under Canon law of the Episcopal Church, Bishop

Bennison was the Ecclesiastical Authority for the Diocese of Pennsylvania and had the authority to select which priests would be licensed to preach. (See 'HIV¶

Mot. Summ. J. Ex. B, Excerpts of Constitution & Canons of the Episcopal

General Convention of the Episcopal Church, at All Saints 75±76, 93, 98±99,

'HIV¶0ot. Summ. J. Ex. D, Warnick Dep. 113:7±12; 113:24±114:1; 114:9±

12; 114:18±21; 115:2±6, Aug. 22, 2013.) :LWKRXWVXFKDOLFHQVHDSULHVW³VKDOO´ not preach. (See 'HIV¶0RW6XPP-([%([FHUSWVRI&RQVWLWXWLRQ &DQRQV of the Episcopal General Convention of the Episcopal Church, Canon III.9.6(a), at All Saints 98.) The Bishop must agree before a church enters into any employment contract with a priest. (See 'HIV¶0RW6XPP-([':DUQLFN

Dep. 115:2±6, Aug. 22, 2013.) Moreover, Canon IV.7.3 provides for the ability of the Bishop to restrict the ability of a priest to continue ministry:

³Sec. 3. If at any time the Bishop determines that a Member of the Clergy may have committed any Offense (as defined by Canon), or that the good order, welfare or safety of the Church or any person or Community may be threatened by that Member of the Clergy, the Bishop Diocesan may, without prior notice or hearing, (a) place restrictions upon the exercise of the ministry of such Member of the Clergy or (b) place such Member of the Clergy on Administrative Leave.´

(See 'HIV¶0RW6XPP-([%([FHUSWVRI&RQVWLWXWLRQ &DQRQVRIWKH

Episcopal General Convention of the Episcopal Church, Canon IV.7.3, at All

Saints 140.)

Father Warnick was from the Diocese of Arizona but the Bishop of the

Diocese of Pennsylvania licensed him to minister in Pennsylvania. (See 'HIV¶

Mot. Summ. J. Ex. A, Am. Compl. ¶ 2.) Father Warnick had two one-year contracts with All Saints: January 2009 through January 2010 and January 2010 through January 2011. (See 'HIV¶0RW6XPP- 3O¶V$QVZHULQ2SS¶QWR

'HIV¶0RW6XPP-.) Father Warnick understood that no permanency was attached to his position at All Saints. (See 'HIV¶0RW6XPP-([':DUQLFN

Dep. 33:4±13, Aug. 22, 2013.)

)DWKHU:DUQLFNKDVGHVFULEHGKLPVHOIDVD³UDGLFDO´SULHVW See 'HIV¶

Mot. Summ. J. Ex. D, Warnick Dep. 34:23±35:11, Aug. 22, 2013.) After arriving at All Saints, Father Warnick developed a plan to restructure the parish by allowing the existing, conservative congregation to receive part-time ministry

ZKLOHJURZLQJDQHZFRQJUHJDWLRQLQWHUHVWHGLQGLIIHUHQW³FRQWHPSRUDU\´ worship. It was his view that this was would address All Saints¶ILQDQFLDO difficulties and increase parish membership. (See 'HIV¶0RW6XPP- 3O¶V

$QVZHULQ2SS¶QWR'HIV¶0RW6XPP-¶ 28 & 29.) Father Warnick also

GLVDJUHHGZLWKVRPHFRQJUHJDQWVRQKRZWKHFRQJUHJDWLRQ¶VHQGRZPHQWIXQG should be used. (See 'HIV¶0RW6XPP-([':DUQLFN'HS±12; 42:9±

13, Aug. 22, 2013.) Some congregants complained that he was not accessible

5 enough to parishioners and was not meeting his priestly obligations. (See 'HIV¶

0RW6XPP- 3O¶V$QVZHULQ2SS¶QWR'HIV¶0RW6XPP-'HIV¶0RW

Summ. J. Ex. D, Warnick Dep. 42:9±13, Aug. 22, 2013.)

In 2009 Father Warnick posted on his Facebook answers to a ³VH[XDO

SRVLWLRQTXL]´ where he identified various sexual positions. His Facebook was available to some 300 people including some associated with the Episcopal

Church including at least one All Saints parishioner. Eventually he removed it from his profile because he knew it ZDV³SUREDEO\VRPHWKLQJWKDWFRXOGKDYHWKH potential to upset people.´ (See 'HIV¶0RW6XPP-([':DUQLFN'HS

92:13±99:5, Aug. 22, 2013.) Also during 2009, although he was married and separated, he and another woman, Sarah Caswell, EHJDQOLYLQJDWHDFKRWKHU¶V houses (his house being the rectory) on several alternate weekends. (See 'HIV¶

Mot. Summ. J. Ex. D, Warnick Dep. 75:19±77:13, Aug. 22, 2013.) Kirk Stevan

Smith, the Bishop of Arizona (Father :DUQLFN¶V home diocese), advised him that such a living arrangement was not proper while he was still married to someone else, and that he should end any emotional relationship or physical contact with the woman not his wife until his divorce was final. (See Defs.¶ Mot. Summ. J. Ex.

+%LVKRS6PLWK¶VOHWWHUWRFather Warnick, Jun. 19, 2009.)

Father :DUQLFN¶V divorce was finalized in November 2009. (See 'HIV¶

Mot. Summ. J. Ex. D, Warnick Dep. 211:12±18, Aug. 22, 2013.) After the divorce, he and Sarah Caswell married, at a Methodist rather than an Episcopal church. (See 'HIV¶0RW6XPP- 3O¶V$QVZHULQ2SS¶QWR'HIV¶0RW6XPP

J. ¶¶ 47 & 48.) Father Warnick admits that he did not follow the Episcopal

6 Canons on remarriage after divorce. (See 'HIV¶0RW6XPP-([':DUQLFN

Dep. 87:16±19, Aug. 22, 2013.)

On November 1, 2010, the Vestry voted at its meeting to recommend that

All Saints maintain a part-time ministry. (See 'HIV¶0RW6XPP- 3O¶V

$QVZHULQ2SS¶QWR'HIV¶0RW6XPP- Father Warnick claims that the vote to maintain a part-time ministry amounted to a vote to keep him on as a part-time priest, and that the vote gave rise to a valid employment agreement or

FRQWUDFWEHWZHHQKLPVHOIDQG$OO6DLQWVVXEMHFWWR%LVKRS%HQQLVRQ¶VDSSURYDO

(Am. Compl. ¶¶ 20±21.) Father Warnick claims that on November 8, 2010, Ms.

Cairns sent a letter and an email to Canon Jill Mathis, a representative of the diocese, stating that Father Warnick was trying to overturn the Vestry vote choosing to have a part-time ministry. (See Defs.¶ 0RW6XPP-([*3O¶V

Resp. to 'HIV¶ First Set of Interrogs., No. 21.) Father Warnick claims that on

November 22, 2010, Ms. Cairns emailed the Bishop of Arizona with what he characterized as ³numerous unfounded complaints.´ (See id.)

On December 16, 2010, at a congregational meeting to discuss Father

:DUQLFN¶VLGHDVIRUUHVWUXFWXULQJWKHSDULVKWKH%LVKRSWKH9HVWU\DQGthe

SDULVK¶Vcongregants freely discussed their concerns, including Father :DUQLFN¶s performance, or purported nonperformance, of duties, along with his Facebook posting and his living with one woman while married to another. (See 'HIV¶0RW

Summ. J. & PO¶V$QVZHULQ2SS¶QWR'HIV¶0RW6XPP-¶ 'HIV¶

Mot. Summ. J. Ex. D, Warnick Dep. 130:6±15; 133:21±134:2, Aug. 22, 2013.)

Father Warnick claims that at that meeting Mr. Craig defamatorily said,

7 ³-HUHP\SRVWHGLQDSSURSULDWHVH[XDOPDWHULDO on Facebook. Sarah and Jeremy

OLYHGWRJHWKHULQWKHUHFWRU\ZLWK6DUDK¶VFKLOGUHQEHIRUHWKH\ZHUHPDUULHGDQG

ZLWKRXWWKHNQRZOHGJHRI-HUHP\¶VH[-wife.´ (See Defs.¶ Mot. Summ. J. Ex. G,

3O¶V5HVSWR'HIV¶ First Set of Interrogs., No. 23.) Father Warnick admits that posting sexual information on Facebook and living with a woman before marriage

ZRXOGEH³FRQGXFWXQEHFRPLQJRIDPHPEHURIWKHFOHUJ\´ See 'HIV¶0RW

Summ. J. Ex. A, Am. Compl. ¶ 32), but he also admits that only an ecclesiastical court can make that determination about specific conduct. (See 'HIV¶0RW

Summ. J. Ex. D, Warnick Dep. 165:21±166:2, Aug. 22, 2013.)

After the meeting, Bishop Bennison, the Bishop of the Diocese of

Pennsylvania, revoked Father :DUQLFN¶VOLFHQVHWRPLQLVWHU anywhere in

Pennsylvania and drafted a letter explaining his decision: concerns raised at the meeting would, if true, be conduct unbecoming of clergy²but canonical structures prohibited his investigating the truth or falsity of the allegations, because only the authority in Arizona, where Father Warnick remained canonically resident, could do so. (See 'HIV¶0RW6XPP- 3O¶V$QVZHULQ

2SS¶QWR'HIV¶0RW6XPP-¶ 62 & 63; 'HIV¶0RW6XPP-([-, Bishop

%HQQLVRQ¶VOHWWHU

Father Warnick asserts that a portion of the letter Bishop Bennison drafted is defamatory:

³$WWKHSDULVK-wide meeting on December 16, a number of you expressed gratitude and esteem for Father Warnick, his preaching and pastoral care. But at the same time two specific accusations were made which, if true, would constitute conduct unbecoming a member of the clergy.

8 I am not now in a position to ascertain the truth or falsehood of the accusations. That is the responsibility of Father :DUQLFN¶VELVKRS the Bishop of Arizona. Were Father Warnick canonically resident in the Diocese of Pennsylvania, I could temporarily inhibit his ministry until the Church could adjudge the veracity of the accusations. Because he is not canonically resident here, my only option is to revoke KLVOLFHQVH´

('HIV¶0RW6XPP-([-%LVKRS%HQQLVRQ¶VOHWWHU.) Bishop Bennison did not mail the letter to parishioners; it was sent to Bob Lambert, a parishioner, whom the Bishop expected to send it out to the congregation. (See 'HIV¶0RW6XPP.

J. Ex. K, Caswell-Warnick Dep. 31:6±8, Aug. 23, 2013.) Father Warnick and Ms.

Caswell helped Mr. Lambert send the letter by stuffing the envelopes. (See

'HIV¶0RW6XPP-(x. K, Caswell-Warnick Dep. 31:9±32:1, Aug. 23, 2013.)

A few months later, on February 1, 2011, Ms. Cairns sent an email to Mr.

Lambert, a supporter of Father :DUQLFNZKLFKUHDGLQSDUW³,I\RXZHUHSD\LQJ attention at the meeting with Bishop Bennison, you would have noted that 20 people stated their dissatisfaction and that the Warnicks DID in fact live together

EHIRUH0$55,$*(´(See Defs.¶ 0RW6XPP-([*3O¶V5HVSWR'HIV¶ First

Set of Interrogs., No. 21.) The next day, February 2, 2011, Ms. Colwell emailed

Mr. Lambert and referred to the allegation that Father Warnick and Sarah

Caswell were ³OLYLQJWRJHWKHU´EXWFODULILHG WKDW³,DPQRWVD\LQJLWLVWUXHRUQRW

WUXH´(See Defs.¶ Mot. Summ. J. Ex. M, Colwell email to Lambert.) She also stated LQWKDWHPDLOWKDWVKHKDGEHHQWROG0V&DVZHOO¶VFKLOGUHQZHUHHQUROOed in school in September 2009 and then rhetorically asked where the children lived between that time and December 2009. (See id.)

Father Warnick acknowledges that any renewal of his one-year contract

9 could become effective only with the approval of the Bishop of the Diocese of

Pennsylvania (see 'HIV¶0RW6XPP-([$Am. Compl. ¶ 15), but he claims interference with various existing and potential contracts. (See Defs.¶ Mot.

6XPP-([*3O¶V5HVSWR'HIV¶ First Set of Interrogs., No. 7.) Although his license was revoked twenty-five days before his contract expired, he was paid for the entirety of his contract and was allowed to stay on in the rectory, with water and electricity paid by All Saints, for six months after the revocation. (See DHIV¶

0RW6XPP- 3O¶V$QVZHULQ2SS¶QWR'HIV¶0RW6XPP-

Father Warnick filed a canonical complaint against Bishop Bennison accusing him of abusing his discretion by revoking his license and thereafter failing to provide Father Warnick with assistance and mediation in the face of the accusations made against him at the congregational meeting; that complaint was dismissed on August 4, 2011. (See 'HIV¶0RW6XPP-([2$SSHDORI,QWDNH

2IILFHU¶V,QLWLDO'LVPLVVDOLQWKHPDWWHUof The Rev. Jeremy M. Warnick & The Rt.

Rev. Charles E. Bennison, Jr. (Nov. 9, 2011) (original dismissal of complaint).)

He appealed to the Diocese; the appeal was rejected on December 26, 2011.

(See 'HIV¶0RW6XPP- 3O¶V$QVZHULQ2SS¶QWR'HIV¶ Mot. Summ. J. ¶¶ 75

& 77.) The rejection of the appeal outlines the canonical rules that govern the complaint and appeals processes. (See 'HIV¶0RW6XPP-([%'HFLVLRQRI the President of the Disciplinary Board for Bishops.) It observes that, to a certain extent, ³XQEHFRPLQJFRQGXFWOLNHEHDXW\LVµLQWKHH\HRIWKHEHKROGHU¶´DQGWKDW

Father :DUQLFN¶VFRPSODLQWDQGDSSHDODFFXVHBishop Bennison of conduct unbecoming of clergy. (Id.) The rejection also cites the canonical reasons for

10 the dismissal of the complaint and the denial of the appeal,WVD\V³7KHFDQRQ directs the President to affirm or overrule a decision of dismissal by the Intake

2IILFHUZLWKLQWKLUW\ GD\V 7LWOH,9 ´,WIXUWKHUVD\V³>7@KHFRPSODLQWDQG the appeal IDOOXQGHUWKHSURYLVLRQVRI7LWOH,9 K ZKLFKSURYLGHVWKDWµ,Q exercising his or her ministry a Member of the Clergy shall . . . refrain from: . . .

DQ\&RQGXFW8QEHFRPLQJD0HPEHURIWKH&OHUJ\´,WIXUWKHUTXRWHVWKH

Canons:

³7LWOH,9SURYLGes that, µIn order for any conduct or condition to be the subject of the provisions of this Title, the Offense complained of must violate applicable provisions of Canon IV.3 or IV.4 and must be material and substantial or of clear and weighty importance to WKHPLQLVWU\RIWKH&KXUFK¶(emphasis added).´

(Id.)

After Father :DUQLFN¶VFDQRQLFDOFRPSODLQWZDVXQVXFFHVVIXOFather

Warnick initiated this civil action on December 13, 2011, raising the same issues as the Church already rejected. (See 'HIV¶0Rt. Summ. J. Ex. O, Appeal of

,QWDNH2IILFHU¶V,QLWLDO'LVPLVVDOLQWKHPDWWHURI7KH5HY-HUHP\0:DUQLFN

The Rt. Rev. Charles E. Bennison, Jr. (Nov. 9, 2011) (original dismissal of complaint).)

III. LEGAL ANALYSIS AND CONCLUSIONS

A. The First Amendment bars all claims.

1. The Deference Rule and Ministerial Exception Apply in This Case.

7KHILUVWZRUGVRIWKH%LOORI5LJKWVVD\WKDW³Congress shall make no law

UHVSHFWLQJDQHVWDEOLVKPHQWRIUHOLJLRQRUSURKLELWLQJWKHIUHHH[HUFLVHWKHUHRI´

U.S. CONST. Amend. I. As these words relate to this case, ³[b]oth Religion

11 Clauses bar the government from interfering with the decision of a religious

JURXSWRILUHRQHRILWVPLQLVWHUV´Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. E.E.O.C., 132 S. Ct. 694, 702 (2012). Specifically, the ³Establishment

Clause prevents the Government from appointing ministers, and the Free

Exercise Clause prevents it from interfering with the freedom of religious groups

WRVHOHFWWKHLURZQ´Id. at 703. $FFRUGLQJO\³LW is impermissible for the

JRYHUQPHQWWRFRQWUDGLFWDFKXUFK¶VGHWHUPLQDWLRQRIZKRFDQDFWDVLWV

PLQLVWHUV´Id. at 704. 0HGGOLQJLQDFKXUFK¶VFKRLFHRISULHVWZRXOGEH

³WUHVSDVVLQJRQVDFUHGJURXQG´Gaston v. Diocese of Allentown, 712 A.2d 757,

761 (Pa. Super. Ct. 1998). To do so would impermissibly allow ³&DHVDU>WR@

HQWHU>@WKH7HPSOHWRGHFLGHZKDWWKH7HPSOHEHOLHYHV´Presbytery of Beaver-

Butler of United Presbyterian Church in U.S. v. Middlesex Presbyterian Church,

489 A.2d 1317, 1320 (Pa. 1985).

In this case, Father Warnick already appealed his termination to Episcopal authorities pursuant to the rules of the canonical process, and his appeal was denied. (See 'HIV¶0RW6XPP- 3O¶V$QVZHULQ2SS¶QWR'HIV¶0RW6XPP

J. ¶¶ 75 & 77). After not receiving the relief he sought from the Episcopal Church by whose authority and governance he agreed to be bound, Father Warnick now asks a secular civil court to override the ecclesiastical ruling.

The Supreme Court of Pennsylvania long ago described the importance of

FLYLOFRXUWV¶GHIHUHQFHWRHFFOHVLDVWLFDOFRXUWVLQHFFOHVLDVWLFDOPDWWHUV:

³The decisions of ecclesiastical courts, like those of every other judicial tribunal, are final; as they are the best judges of what constitutes an offence against the word of God, and the discipline of the church.

12 . . . Any other than those courts must be incompetent judges of matters of faith, discipline and doctrine; and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt, which would do anything but improve either religion or good morals.´

German Reformed Church v. Com. ex rel. Seibert, 3 Pa. 282, 282, 291 (1846).

And the Supreme Court of the United States held well over a century ago that

³ZKHQHYHUWKHTXHVWLRQVRIGLVFLSOLQHRURIIDLWKRUHFFOHVLDVWLFDO rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on WKHPLQWKHLUDSSOLFDWLRQWRWKHFDVHEHIRUHWKHP´

Watson v. Jones, 80 U.S. 679, 727 (1871).

7KLV&RXUW¶Ventertaining any RI:DUQLFN¶VFODLPVZRXOGthus violate the

³GHIHUHQFHUXOH´which the Supreme Court of the United States created in light of the First Amendment. The deference rule prohibits unjustifiable intrusion by civil courts into the religious affairs of organized religions:

³All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.´

Watson, 80 U.S. at 729.

The Pennsylvania Supreme Court has laid out how the deference rule applies:

³ H[DPLQHWKHHOHPHQWVRIHDFKRIWKHSODLQWLII¶VFlaims; (2) identify any defenses forwarded by the defendant; and

13 (3) determine whether it is reasonably likely that, at trial, the factfinder would ultimately be able to consider whether the parties carried their respective burdens as to every element of each of the SODLQWLII¶VFODLPVZLWKRXWµintruding into the sacred precincts.¶´

Connor v. Archdiocese of Philadelphia, 975 A.2d 1084, 1103 (Pa. 2009).

The Court in Connor stated that the deference rule provides for a ³PLQLVWHULDO

H[FHSWLRQ´ in the ³VSHFial class of cases that involves the employment relationship between a religious institution and its ministerial employees in which the courts understandably are particularly reluctant to encroach on the

LQVWLWXWLRQ¶VGHFLVLRQ-making process in selecting sXFKHPSOR\HHV´,GDW±

09. ³>)@HGHUDOFRQVWLWXWLRQDOSURWHFWLRQDVSDUWRIWKHIUHHH[HUFLVHRIUHOLJLRQ

DJDLQVWVWDWHLQWHUIHUHQFH´PDQGDWHVWKDWUHOLJLRXVLQVWLWXWLRQVKDYHWKHULJKWWR select their own religious leaders. Id. at 1093 (quoting Kedroff v. St. Nicholas

Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)).

The Supreme Court of the United States recently reaffirmed the importance of the ministerial exception and the deference that must be afforded to organized religions in their choice of clergy, making reference to both the Free

Exercise and the Establishment Clauses of the First Amendment:

³We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, ZKLFKSURWHFWVDUHOLJLRXVJURXS¶VULJKWWRVKDSHLWVRZQIDLWKDQG mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.´

Hosanna-Tabor, 132 S. Ct. at 706. The Court ePSKDVL]HGWKDW³WKHDXWKRULW\WR select and control who will minister to the faithful²a matter strictly ecclesiastical²LVWKHFKXUFK¶VDORQH´Id. at 709 (internal citation and quotation omitted).

Father :DUQLFN¶VWRUWDQGFRQWUDFWFODLPVVHHNdamages IRU0RYDQWV¶ frank debate about his suitability to minister to them and their resultant choice to discontinue his ministry at All Saints. The issues that triggered congregational conversations about revocation and the revocation of his license itself²his desire to change the worship style of the parish and the conflict this caused,

FRQJUHJDQWV¶FRQFHUQVDERXW perceived nonperformance of priestly duties² undergird all of Father :DUQLFN¶VFODLPV,WLVKDUG to conceive of questions more appropriately left to the Church itself than ecclesiastical matters related to a parish OHDGHU¶Vpotentially refocusing the parish away from the ³Wraditional

Episcopal experience.´ (See 'HIV¶0RW6XPP-([*3O¶V5HVSWR'HIV¶

First Set of Interrogs., No. 18.) It is questions such as these that it is not only most appropriate but also most necessary to apply the deference rule.

$VWKH6XSUHPH&RXUWRI3HQQV\OYDQLDKDVREVHUYHG³7KHUHODWLRQVKLS between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical

FRQFHUQ´Connor, 975 A.2d at 1109 (quoting Downs v. Roman Catholic

Archbishop of Balt., 683 A.2d 808, 812±13 (Md. Ct. Spec. App. 1996)). Indeed,

³WKHFRQFHUQLQPLQLVWHULDOH[FHSWLRQFDVHVLVQRWZLWKFKLOOLQJMXVWDQ\VSHHFKE\

15 religious institutions but, rather, that which is necessary to make an informed decision about the selecWLRQDQGUHWHQWLRQRIWKHLURZQSHUVRQQHO´Id. at 1110.

%LVKRS%HQQLVRQ¶VGHFLVLRQWRHQG)DWKHU:DUQLFN¶VPLQLVWU\DQGKLV restructuring plans, is exactly what the deference rule and ministerial exception are intended to shield from state intrusion.

2. The Deference Rule and Ministerial Exception Bar the Defamation Claims.

All of Father :DUQLFN¶VGHIDPDWLRQFODLPVDUHrooted in 0RYDQWV¶ discussions of his ministry and their voicing of their displeasure. The defamation claim against Mr. Craig (a member of the Vestry) relates to concerns he expressed at the December 16, 2010, meeting about Father :DUQLFN¶V living arrangement with the woman he later married, and his Facebook activity. (See

'HIV¶0RW6XPP-([*3O¶V5HVSWR'HIV¶)LUVW6HWRI Interrogs., No. 23.)

The defamation claims against Ms. Colwell and Ms. Cairns (also Vestry members) relate to their discussions about Father :DUQLFN¶VPLQLVWU\EHIRUHDQG after Father :DUQLFN¶VOLFHQVHZDVUHYRNHG See 'HIV¶0RW6XPP-([*

3O¶V 5HVSWR'HIV¶)LUVW6HWRI,QWHUURJV1R'HIV¶0RW6XPP-([M,

Colwell email to Lambert.) The defamation claim against Bishop Bennison is based on the congregational letter that explained why he revoked Father

:DUQLFN¶Vlicense. ('HIV¶0RW6XPP-([-%LVKRS%HQQLVRQ¶VOHWWHU.)

If Father :DUQLFN¶VFODLPVwere to move forward, this Court would not only have to invade WKH&KXUFK¶Vprocess for choosing clergy, but also challenge the

&KXUFK¶Vunderstanding of its own Constitutions and Canons. The Pennsylvania

Supreme Court has held that considering defamation claims involving a religious

16 orGHU¶VFOHUJ\VHOHFWLRQREYLRXVO\ violates the )LUVW$PHQGPHQW¶Vdeference rule and ministerial exception:

³When the conduct complained of occurs in the context of, or is JHUPDQHWRDGLVSXWHRYHUWKHSODLQWLII¶VILWQHVVRUVXLWDELOLW\WR enter into or remain a part of the clergy[ ][ ] it is difficult to see how the forbidden inquiry could be avoided. Questions of truth, falsity, malice, and the various privileges that exist often take on a different hue when examined in the light of religious precepts and procedures that generally permeate controversies over who is fit to represent and speak for the church. As the Court observed in McClure v. Salvation Army, 460 F.2d 553, 558±59 (5th Cir.), cert. denied, 409 U.S. 896, 93 S. Ct. 132, 34 L.Ed.2d 153 (1972): µThe relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern.¶´

Connor, 975 A.2d at 1109 (quoting Downs v. Roman Catholic Archbishop of

Balt., 683 A.2d 808, 812±13 (Md. Ct. Spec. App. 1996)). The Pennsylvania

Supreme Court observed that congregational discussions in choosing clergy especially merit the shield provided by the deference rule:

³>7@RDOORZDVDFWLRQDEOHFKXUFKPHPEHUV¶FRPPHQWVDERXWWKHLU church leaders made at church meetings would inhibit the free and RSHQGLVFRXUVHHVVHQWLDOWRDUHOLJLRXVLQVWLWXWLRQ¶VVHOHFWLRQRILWV minister. Such a result could chill expressions of dissatisfaction from church members and thereby intrude upon the autonomy of religious institutions to freely evaluate their choice and retention of religious leaders.´

Id. at 1110.

Father Warnick alleges that Mr. &UDLJ¶VVWDWHPHQWDQGRWKHU0RYDQWV¶ repetition thereof, is defamatory because such behavior, if true, would be conduct unbecoming²but Father Warnick admits that only an ecclesiastical court can make such a determination. ³7KDW>FRQGXFWXQEHFRPLQJ@LVVRPHWKLQJ that can only be determined through a trial process at this point in time in the

17 Episcopal Church. . . . The canons are not clear. . . . They give general

FDWHJRULHV7KHUH¶VDcanonical process WKDW¶VUHTXLUHGWRPDNHWKDW

GHWHUPLQDWLRQ´ See 'HIV¶0RW6XPP-([':DUQLFN'HS165:21±166:2;

168:12; 168:15; 168:22±24, Aug. 22, 2013; emphasis added.) Thus, Father

Warnick himself thus acknowledges that this Court would have to encroach on

WKH(SLVFRSDO&KXUFK¶VMXULVGLFWLRQ by interpreting Church Canons in order to assess the allegHGO\GHIDPDWRU\PHDQLQJRI0RYDQWV¶VWDWHPHQWV.

Further, because Church Canons bear on whether Bishop Bennison had jurisdiction to investigate the truth or falsity of the accusations against Father

Warnick, in attempting to assess 0RYDQWV¶DIILUPDWLYHWUXWKdefense the Court would again be improperly compelled to interpret Canons and question Church authorities¶LQWHUSUHWDWLRQs regarding ecclesiastical matters. This Court would also need to interpret the Canons in order to assess whether the affirmative defense of privilege applied to the statements at issue.

3. The Deference Rule and Ministerial Exception Bar the Contract Claims.

Similarly, the contract and interference with contract claims relating to All

6DLQWV¶ HQGLQJ)DWKHU:DUQLFN¶V full-time ministry and choosing not to give him part-time ministry are precluded from civil court analysis because of the deference rule and ministerial exception. Canonical and ecclesiastical discretion are at the core of Church decisions over who can serve as a priest. Father

Warnick acknowledges that an employment contract to be a priest could be entered into only ZLWKWKH%LVKRS¶VDSSURYDO. (See 'HIV¶0RW6XPP-([$

Am. Compl. ¶ 15.) &KXUFKDXWKRULWLHV¶DQGFRQJUHJDQWV¶FRPPXQLFDWLRQVDERXWD

18 SULHVW¶VFRQWLQXHGPLQLVWU\ZLWKLQD&KXUFKDOVRLPSOLFDWHcanonical discretion and would require interpreting the Canons in order to assess whether such communications were privileged. Moreover, as discussed more fully in Section

B, neither a party to a contract nor any SDUW\¶VDJHQWVFDQWRUWLRXVO\LQterfere with their own contracts. But in order to assess this claim, this Court would have to decide whether the Bishop can be found liable for interfering with alleged contracts²that is, whether he was a third party to those contracts or whether he had to approve those contracts himself; this would again require the Court to interpret the Canons.

Any such interpretation by this Court of Church law would be an unconstitutional incursion by the state into sacred precincts: the deference rule and the ministerial exception prohibit it, and all of Father :DUQLFN¶VFODLPVDUH barred as a result.

4. Father Warnick Cites Nonbinding, Irrelevant Case Law in Support of His Argument that the Deference Rule and Ministerial Exception Do Not Apply.

Father Warnick argues that the decision of the Supreme Court of the

United States in Hosanna-Tabor was limited to federal employment discrimination laws, and that after that decision came down some state courts outside Pennsylvania have allowed claims against churches to go forward notwithstanding. The Supreme CRXUW¶VGHFLVLRQLQHosanna-Tabor did not limit the deference rule and ministerial exception to federal employment discrimination law, and the cases Father Warnick cite are, besides being nonbinding in this jurisdiction, factually inapposite. Hosanna-Tabor expressed no view on whether

19 the ministerial exception applies to contract and tort claims because those issues were not before the Court.

Pennsylvania courts have clearly held that the ministerial exception applies to contract and defamation claims. See Connor, 975 A.2d at 1109; see also Mundie v. Christ Church of Christ, 987 A.2d 794, 802 (Pa. Super. Ct. 2009);

Cooper v. Church of St. Benedict, 954 A.2d 1216, 1219 (Pa. Super. Ct. 2008)

WKHPLQLVWHULDOH[FHSWLRQDSSOLHV³WRGHFLVLRQVPDGHE\UHOLJLRus institutions

FRQFHUQLQJHPSOR\PHQWRIPLQLVWHUV´ ; Fassl v. Our Lady of Perpetual Help

Roman Catholic Church, 2005 WL 2455253, at *7 (E.D. Pa. Oct. 5, 2005) ³7KH ministerial exception is not limited in application only to certain federal or state employment claims. Rather, because the ministerial exception is based on the

First Amendment, it may apply to any federal or state cause of action that would

RWKHUZLVHLPSLQJHRQWKH&KXUFK¶VSUHURJDWLYHWRFKRRVHLWVPLQLVWHUV´ .

Father Warnick pointed to a Connecticut trial court case that concerned a

FKXUFK¶VIDLOXUHWRLQYHVWLJDWHUHSRUWDQGVXSHUYLVHDQHPSOR\HH priest who had been accused of sexual abuse of a child. Doe No. 2 v. Norwich Roman Catholic

Diocesan Corp., 2013 WL 3871430 at *1 (Conn. Super. Ct. Jul. 8, 2013)

(unpublished). He cited that case IRULWVREVHUYDWLRQ³7KH)LUVW$PHQGPHQW does not prevent courts from deciding secular civil disputes involving religious institutions when and for the reason that they require reference to religious

PDWWHUV´Id. at *4 (quoting Martinelli v. Bridgeport Roman Catholic Diocesan

Corp., 196 F.3d 409 (2d Cir.1999)). In Doe, claims of failure to warn and negligent supervision of an allegedly abusive priest were allowed to go forward.

20 Id. at *3. The Doe claims UHJDUGLQJDSULHVW¶VDOOHJHGsexual abuse of a child had nothing to do, as this case manifestly does, with selection of a minister or inquiry into church doctrine.

Father Warnick also cited a South Carolina Supreme Court case for the idea thaWDSDVWRU¶VGHIDPDWLRQFODLPFRXOGJRIRUZDUGDJDLQVWDFKXUFKBanks v. St. Matthew Baptist Church, 2013 S.C. LEXIS 249 at *9±*10 (S.C. Sept. 25,

2013). Banks did not involve the selection of a minister or anything pertaining to church doctrine; it had to do with a pastor accusing church trustees of engaging in financial impropriety. Indeed, the court stated that if the pastor had stated they haG³YLRODWHGFKXUFKODZ´WKHGHIHUHQFHUXOHZRXOGin fact bar the defamation claim. Id. at *9.

These cases are not only nonbinding on this Court; they are factually distinguishable and have no bearing whatsoever on this case. $FLYLOFRXUW¶V consideration of Father :DUQLFN¶VFODLPVZKLFKFRQFHUQDFKXUFK¶VVHOHFWLRQRI its minister, ZRXOGEH³H[FHVVLYHHQWDQJOHPHQWLQWRFKXUFKPDWWHUV´EDUUHGE\WKH

First Amendment. Mundie v. Christ Church of Christ, 987 A.2d 794, 802 (Pa.

Super. Ct. 2009). Such consideration of any of his claims would intrude on sacred precincts. The deference rule and ministerial exception apply here, barring all of Father :DUQLFN¶VFODLPV

B. Even if the First Amendment did not bar all claims, Father Warnick¶VFODLPVIDLODVDPDWWHURIODZ.

$SDUW\PD\PRYHIRUVXPPDU\MXGJPHQW³ZKHQHYHUWKHUHLVQRJHQXLQH issue of any material fact as to a necessary element of the cause of action or

GHIHQVHZKLFKFRXOGEHHVWDEOLVKHGE\DGGLWLRQDOGLVFRYHU\RUH[SHUWUHSRUW´

21 Pa.R.C.P. 1035.2(1). ,WLVWKLV&RXUW¶VGXW\WRGHWHUPLQHZKHWKHU, viewing the evidence in the light most favorable to Father Warnick, his allegations would constitute violations as a matter of law. Father Warnick¶Vclaims fail as a matter of law because the undisputed evidence shows that necessary elements have not been shown for defamation, contract and civil conspiracy claims.

1. Defamation/Libel/Slander

The allegedly defamatory statements in this case do not constitute defamation because they are either true, incapable of defamatory meaning or opinion. A person bringing a defamation claim1 in Pennsylvania bears the burden of proving:

³ 7KHGHIDPDWRU\FKDUDFWHURIWKHFRPPXQLFDWLRQ (2) Its publication by the defendant. (3) Its application to the plaintiff. (4) The understanding by the recipient of its defamatory meaning. (5) The understanding by the recipient of it as intended to be applied to the plaintiff. (6) Special harm resulting to the plaintiff from its publication. $EXVHRIDFRQGLWLRQDOO\SULYLOHJHGRFFDVLRQ´

Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007) (citing 42

PA. CONS. STAT. ANN. § 8343(a)). Whether a statement is capable of defamatory meaning is a question of law that the Court must determine ³LQWKHILUVWLQVWDQFH.´

Bell v. Mayview State Hosp., 853 A.2d 1058, 1061± 3D6XSHU&W ³,I the court determines that the challenged publication is not capable of a

GHIDPDWRU\PHDQLQJWKHUHLVQREDVLVIRUWKHPDWWHUWRSURFHHGWRWULDO´

Livingston v. Murray, 612 A.2d 443, 446 (Pa. Super. Ct. 1992). An action in

1 )DWKHU:DUQLFNOLVWV³/LEHO6ODQGHU´ &RXQW,,, DVDVHSDUDWHFODLPIURP³'HIDPDWLRQ´ &RXQW, but libel and slander are simply forms of defamation. Joseph v. Scranton Times L.P., 959 A.2d 322, 334 (Pa. Super. Ct. 2008).

22 GHIDPDWLRQ³LVEDVHGRQDYLRODWLRQRIWKHIXQGDPHQWDOULJKWRI an individual to

HQMR\DUHSXWDWLRQXQLPSDLUHGE\IDOVHDQGGHIDPDWRU\DWWDFNV´Berg v. Consol.

Freightways, Inc., 421 A.2d 831, 833 (Pa. Super. Ct. 1980). The law states that there is no defamation if the statements are true. Phila. Newspapers, Inc. v.

Hepps, 475 U.S. 767, 775 (1985); Spain v. Vicente, 461 A.2d 833, 836 (Pa.

Super. Ct. 1983). The offending statements must also have caused damage in order to sustain a claim: ³,WLVQRWHQRXJKWKDWWKHYLFWLPRIWKHµVOLQJVDQGDUURZV of outrageous forWXQH¶EHHPEDUUDVVHGRUDQQRyed, he must have suffered that kind of harm which has grievously fractured his standing in the community of

UHVSHFWDEOHVRFLHW\´Scott-Taylor, Inc. v. Stokes, 229 A.2d 733, 734 (Pa. 1967).

And as for whether a statement can be construed as defamatory by innuendo:

³,WLVWKHGXW\RIWKHFRXUWLQDOOFDVHVWRGHWHUPLQHZKHWKHUWKH language used in the objectionable article could fairly and reasonably be construed to have the meaning imputed by the innuendo. If the words are not susceptible of the meaning ascribed to them by the plaintiff, and do not sustain the innuendo, the case VKRXOGQRWEHVHQWWRDMXU\´

Sarkees v. Warner-West Corp., 37 A.2d 544, 546 (Pa. 1944).

%LVKRS%HQQLVRQ¶VOHWWHULVQRWcapable of defamatory meaning and is, at most, non-actionable opinion. Father Warnick objects to these, the second and third paragraphs of the letter:

I am not now in a position to ascertain the truth or falsehood of the

23 accusations. That is the responsibility of Father :DUQLFN¶VELVKRS the Bishop of Arizona. Were Father Warnick canonically resident in the Diocese of Pennsylvania, I could temporarily inhibit his ministry until the Church could adjudge the veracity of the accusations. Because he is not canonically resident here, my only option is to UHYRNHKLVOLFHQVH´

('HIV¶0RW6XPP-([-%LVKRS%HQQLVRQ¶VOHWWHU.)

Even if the charges the Bishop refers to but does not name were defamatory, simply observing that the accusations were made is not defamatory, especially because Father Warnick himself has alleged and acknowledges that the statements were actually made and would, if true, indeed constitute conduct unbecoming. (See 'HIV¶0RW6XPP-([$Am. Compl. ¶¶ 31 & 32.) The letter does not reiterate or quote the allegedly defamatory statements, and it stresses that the Bishop is not in a position to determine their alleged truth.

('HIV¶0RW6XPP-([-%LVKRS%HQQLVRQ¶VOHWWHU.) There is nothing defamatory about the Bishop¶VVWDWLQJ that Episcopal procedures prohibited him

IURPLQYHVWLJDWLQJWKHDFFXVDWLRQV¶WUXWKKLVQRQ-actionable opinion that he had no such authority stemmed from his interpretation of Episcopal Canons.

Moreover, the %LVKRS¶Vletter cannot be construed as defamatory by innuendo, either²not without distorting its actual words: Father Warnick argued that the revocation of his license in the aftermath of the accusations referred to in the letter suggests that they were true, but that conclusion fails to account for context. The letter plainly states the license was revoked in accordance with ecclesiastical rules ³KHLVQRWFDQRQLFDOO\UHVLGHQWKHUH´ , and revocation was the only choice because the Bishop lacked jurisdiction to assess the truth or falsity of the accusations. ('HIV¶0RW6XPP-([-%LVKRS%HQQLVRQ¶VOHWWHU.) The

24 context does not at all suggest that the Bishop believed the accusations were true.

Furthermore, Father Warnick and Ms. Caswell helped an All Saints parishioner publish the letter. 7KH\XQGHUVWRRGWKDWLWZDVWKH%LVKRS¶Vorder that the letter be sent to the congregation, and they helped stuff the letter into envelopes to be sent to parishioners. (See 'HIV¶0RW6XPP-(x. K, Caswell-

Warnick Dep. 31:6±32:1, Aug. 23, 2013.) Father Warnick seeks to hold the

Bishop liable for publishing a defamatory statement that Father Warnick helped to publish.

Crucially, Father :DUQLFNDGPLWVWKDW0U&UDLJ¶VVWDWHPHQWDWWKH congregational meeting was true: he did take a Facebook sexual-position quiz, and he did live with Ms. Caswell before they were married and while he was still married to someone else. (See 'HIV¶0RW6XPP-([':DUQLFN'HS

75:19±77:13; 92:13±99:5, Aug. 22, 2013.) Referring to her staying at the rectory,

KHVDLG³-XVWWRFODULI\ZKHQ,VD\WLPHV,PHDQZHHNHQGV,PHDQLWZDVD

WLPHIUDPHRQO\RYHUDZHHNHQGWKDWVKHZRXOGKDYHVWD\HG´ See 'HIV¶0RW

Summ. J. Ex. D, Warnick Dep. 76:15±18, Aug. 22, 2013.) Referring to his staying with Ms. CaswellKHVDLG³,VWD\HGLQKHUKRPH´ See 'HIV¶0RW

Summ. J. Ex. D, Warnick Dep. 78:16, Aug. 22, 2013.) He acknowledged that

WKHVHVWD\VRFFXUUHG³EHWZHHQHDUO\VXPPHUWR'HFHPEHU´ See

'HIV¶0RW6XPP-([':DUQLFN'HS±21, Aug. 22, 2013.) As for the sexual-position quiz, he said, ³,Wwas a quiz. It ZDVVRPHWKLQJWKDW,GLGIRUIXQ´

(See 'HIV¶0RW6XPP-([':DUQLFN'HS±23, Aug. 22, 2013.)

25 Because he thus concedes the truth, the defamation claim fails as a matter of

ODZ0U&UDLJVDLG³-HUHP\SRVWHGLQDSSURSULDWHVH[XDOPDWHULDORQ)DFHERRN

6DUDKDQG-HUHP\OLYHGWRJHWKHULQWKHUHFWRU\ZLWK6DUDK¶VFKLOGUHQEHIRUHWKH\

ZHUHPDUULHGDQGZLWKRXWWKHNQRZOHGJHRI-HUHP\¶VH[-wife.´ (See Defs.¶ Mot.

Summ. -([*3O¶V5HVSWR'HIV¶ First Set of Interrogs., No. 23.)

Father Warnick seeks to avoid the effect of his admission by torturing the

SODLQPHDQLQJRIWKHSKUDVH³OLYHGWRJHWKHU´Father :DUQLFN¶VUHJXODUVWD\VDW

0V&DVZHOO¶VKRPHDQG0V&DVZHOO¶VUHJXODUVWD\VDWWKHUHFWRU\FOHDUO\

DPRXQWWR³OLYLQJWRJHWKHU´Father Warnick seeks somehow to parse the

SKUDVHV³VWD\ZLWK´DQG³OLYHWRJHWKHU´EXWWKH\DUHWKHVDPHWKLQJWhere one lives LVWKHSODFHRQHUHVLGHVDQG³>U@esidence . . . is µDIDFWXDOSODFHRIDERGH¶

HYLGHQFHGE\DSHUVRQ¶s physical presence in a particular place.´Wall Rose Mut.

Ins. Co. v. Manross, 939 A.2d 958, 965 (Pa. Super. Ct. 2007). The presence

QHHGQRWEHSHUPDQHQWLWPD\EHPDUNHGPHUHO\E\³KDELWXDOUHSHWLWLRQ´Id. If one resides, or lives, at the same place as another²LIRQHVKDUHVRQH¶VSK\VLFDO presence with another in a particular place²one iV³OLYLQJWRJHWKHU´ZLWKWKDW other person. The unavoidable common-sense judgment of this Court is that

Father WarQLFN¶VDQG0V&DVZHOO¶VDGPLVVLRQVWKDWWKH\VWD\HGDWRQHDQRWKHU¶V homes on multiple occasions over a considerable period of time lead to the conclusion that RQWKHRFFDVLRQVWKDWWKH\VWD\HGDWHDFKRWKHU¶VKRPHVthey

ZHUH³OLYLQJ WRJHWKHU´

Father :DUQLFNDUJXHVWKDWWKHXVHRIWKHSKUDVH³OLYLQJWRJHWKHU´RU³OLYHG

WRJHWKHU´RU³OLYHWRJHWKHU´LPSOLHVE\ZD\RI³LQQXHQGR´WKDWKHZDVFDUU\LQJRQ

26 ³VH[XDOUHODWLRQV´ZLWK0V&Dswell at the time. (See 3O¶V$QVZHULQ2SS¶QWR

'HIV¶0RW6XPP- 44.) This Court found that this is not a fair or reasonable construction. See Sarkees v. Warner-West Corp., 37 A.2d 544, 546 (Pa. 1944)

(holding that where the words do not sustain the purported innuendo, the case should not go to a jury).

As for the statements attributed to Ms. Cairns and Ms. Colwell, they are either not capable of defamatory meaning, non-actionable opinion, or true. As for

Ms. Colwell, Father Warnick attributes defamatory meaning to an email she sent to one of his supporters. (See Defs.¶ Mot. Summ. J. Ex. M, Colwell email to

Lambert.) The email generally referenced ³OLYLQJWRJHWKHU´UHLWHUDWLQJWKH

VWDWHPHQWPDGHDWWKHPHHWLQJDQGVWDWLQJ³,DPQRWVD\LQJLWLVWUXHRUQRW

WUXH´(See id.) She wrote she had been told that his fXWXUHZLIH¶VFKLOGUHQZHUH enrolled in school and rhetorically asked where the children had lived at the time of enrollment. (See id.) She did not say where she was told they were enrolled, and even if she had said they were enrolled in Philadelphia, that statement would not affect Father :DUQLFN¶VUHSXWDWLRQ7KHUHVWRIKHUHPDLOFRQWDLQVKHUQRQ- actionable opinion about Father :DUQLFN¶Vsuitability for ministering to the parish.

Father Warnick also attributes three allegedly defamatory emails to Ms.

Cairns. One email is only alleged to exist, but Father Warnick does not produce it; another email states Father Warnick was trying to overturn the Vestry vote deciding on a part-time ministry. (See Defs.¶ 0RW6XPP-([*3O¶V5HVSWR

'HIV¶ First Set of Interrogs., No. 21.) There is nothing defamatory about that.

Another email, to one of Father :DUQLFN¶VVXSSRUWHUVVDLG³,I\RXZHUHSD\LQJ

27 attention at the meeting with Bishop Bennison, you would have noted that 20 people stated their dissatisfaction and that the Warnicks DID in fact live together

EHIRUH0$55,$*(´(See Defs.¶ 0RW6XPP-([*3O¶V5HVSWR'HIV¶ First

Set of Interrogs., No. 21.) Father Warnick acknowledges that some parishioners expressed unhappiness with him at the meeting, and that Sarah Caswell and her children lived with him on some weekends in 2009 before he and Ms. Caswell were married. (See 'HIV¶0RW6XPP-([':DUQLFN'HS±77:13;

130:6±15, Aug. 22, 2013.)

Because Father Warnick concedes the truth by acknowledging that he took the Facebook quiz and lived with Sarah Caswell before they were married² and because none of the statements he points to are capable of defamatory meaning or are opinion²he failed to meet the elements of his defamation claims and this Court was compelled to grant summary judgment on these claims in

'HIHQGDQWV¶IDYRU.

2. Contract Claims

7KHHOHPHQWVIRUDFODLPRIEUHDFKRIFRQWUDFWDUH³ WKHH[LVWHQFHRID contract, including its essential terms; 2) a breach of a duty imposed by the

FRQWUDFWDQG UHVXOWDQWGDPDJH´Presbyterian Med. Ctr. v. Budd, 832 A.2d

1066, 1070 (Pa. Super. Ct. 2003). An enforceable contract is entered into when the following elements are met: ³µRIIHU¶µDFFHSWDQFH¶µFRQVLGHUDWLRQ¶RUµPXWXDO meetinJRIWKHPLQGV¶´Schreiber v. Olan Mills, 627 A.2d 806, 808 (Pa. Super.

Ct. 1993).

Father Warnick admits he was paid his entire salary, and allowed to live in

28 WKHUHFWRU\WKURXJKWKHFRQWUDFW¶VH[SLUDWLRQ(See 'HIV¶0RW6XPP- 3O¶V

Answer in OpS¶QWR'HIV¶0RW6XPP- Even if his dismissal, pursuant to the revocation of his license, had been a breach of the January 2010 contract, Father Warnick suffered no damages, a necessary element of the claim.

Although Father Warnick hoped to have a part-time contract in 2011, no such contract was ever even formed. As Father Warnick himself acknowledges, there could be no such contraFWZLWKRXWWKH%LVKRS¶VFRQVHQW Father Warnick admits that any contract renewal could become effective onO\ZLWKWKH%LVKRS¶V approval. (See 'HIV¶0RW6XPP-([$Am. Compl. ¶ 15.) The Bishop never consented; instead he revoked Father :DUQLFN¶VOLFHQVH, so there could be no contract. ('HIV¶0RW6XPP-([-%LVKRS%HQQLVRQ¶VOHWWHU.) He could not get a part-time employment contract to be a priest after having his license to minister revoked. Moreover, Father Warnick did not produce any evidence there was a ³meeting of the minds´Schreiber, 627 A.2d at 808, on any aspect of the purported part-time contract, and certainly none of the essential terms² compensation, hours, scope of responsibilities, or benefits.

The elements of a cause of action for intentional interference with existing or prospective contractual relations are as follows:

³(1) the existence of a contractual, or prospective contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the

29 GHIHQGDQW¶s conduct.´

Strickland v. Univ. of Scranton, 700 A.2d 979, 985 (Pa. Super. Ct. 1997).

Father Warnick alleges one or more of Movants tortiously interfered with two existing and four potential future contracts. No action was taken to harm the contractual relationship with respect to the January 2010 contract, and Father

Warnick suffered no damages: All Saints paid him in full under that contract and allowed him to live in the rectory for an additional six months after it was over.

(See 'HIV¶0RW6XPP- 3O¶V$QVZHULQ2SS¶QWR'HIV¶0RW6XPP-

& 71.)

As for the alleged part-time employment contract for the next year, Father

Warnick alleges only that Ms. Colwell moved the Vestry to delay consideration of a part-time contract until after the December 16 congregational meeting. (See

Defs.¶ 0RW6XPP-([*3O¶V5HVSWRDefV¶ First Set of Interrogs., No. 7.)

An entity cannot interfere with its own contract. Maier v. Maretti, 671 A.2d 701,

707 (Pa. Super. Ct. 1995). A contracting HQWLW\¶VDJHQWVare not ³WKLUGSDUWLHV´ and their conduct cannot give rise to a claim of tortious interference. Daniel

Adams Assoc. v. Rimbach Pub., 519 A.2d 997, 1001±02 (Pa. Super. Ct. 1987).

As a part of the Vestry, Ms. Colwell could not possibly LQWHUIHUHZLWKWKH9HVWU\¶V own potential contracts.

Father Warnick also asserts the Bishop of Pennsylvania, Bishop

Bennison, tortiously interfered with four of his potential employment contracts with Episcopal parishes in southeastern Pennsylvania. (See Defs.¶ Mot. Summ.

-([*3O¶V5HVSWR'HIV¶ First Set of Interrogs., No. 7.) The Bishop of

30 3HQQV\OYDQLD¶V approval is necessary for any employment contract between any

Episcopal parish in Pennsylvania and a priest. Since the Bishop is an agent of the Church, as a matter of law he cannot be found to have interfered with the

&KXUFK¶VRZQcontracts.

Because Father Warnick suffered no damages with respect to his final exisWLQJFRQWUDFWWREH$OO6DLQWV¶ priest, because he could not show any evidence that the purported part-time contract ever came into being, and because as a matter of law a party cannot tortiously interfere with its own contracts, Father

Warnick failed to show the elements of his contract claims and this Court was

FRPSHOOHGWRJUDQWVXPPDU\MXGJPHQWRQWKHVHFODLPVLQ'HIHQGDQWV¶IDYRU.

3. Civil Conspiracy

Civil conspiracy requireVWKDW³WZRRUPRUHSHUVRQVFRPELQHRUHQWHUDQ agreement to commit an unlawful act or to do an otherwise lawful act by unlawful

PHDQV3URRIRIPDOLFHLVDQHVVHQWLDOSDUWRIDFDXVHRIDFWLRQIRUFRQVSLUDF\´

Burnside v. Abbott Labs., 505 A.2d 973, 980 (Pa. Super. Ct. 1985) (internal citations and quotations omitted). Without a cause of action for any particular act, a cause of action for civil conspiracy to commit that act is not possible.

DeBlasio v. Pignoli, 918 A.2d 822, 831 (Pa. Commw. Ct. 2007). Because, as already explained, Father Warnick failed to show the elements of his defamation or contract claims, he necessarily failed to show the elements of his claim for civil conspiracy as it relates to those claims. Because Movants were entitled to judgment as a matter of law on all other claims, they were also entitled to judgment as a matter of law on this one.

31 C. Movants were entitled to summary judgment because Father Warnick failed to provide evidence in support of his claims.

A party may also mRYHIRUVXPPDU\MXGJPHQWLI³DQDGYHUVHSDUW\ZKR will bear the burden of proof at trial has failed to produce evidence of facts

HVVHQWLDOWRWKHFDXVHRIDFWLRQ´3D5&31035.2(2). In answering a motion for summary judgment in this situation, a party must identify ³evidence in the record establishing the facts essential to the cause of action . . . which the motion cites as not having been produced´3D5&3 D 2) (emphasis added). The non-movant²Father Warnick in this case²must provide sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Hoffman v. Pellak, 764 A.2d 64, 65±66

(Pa. Super. Ct. 2000). Allegations are insufficient at this stage; actual evidence must be produced. 7R'D\¶V+RXVY7LPHV6KDPURFN&RPPF¶QV,QF, 21 A.3d

1209, 1213 (Pa. Super. Ct. 2011) (quoting Shepard v. Temple Univ., 948 A.2d

852, 856 (Pa. Super. Ct. 2008) FLWDWLRQVRPLWWHG ³)DLOXUHRIDQRQ-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof . . . establishes the entitlement of the moving party to

MXGJPHQWDVDPDWWHURIODZ´Keystone Freight Corp. v. Stricker, 31 A.3d 967,

971 (Pa. Super. Ct. 2011) (quoting Young v. PennDOT, 744 A.2d 1276, 1277

(Pa. 2000)). 7KH³PLVVLRQRIWKHVXPPDU\MXGJPHQWSURFHGXUHLVWRSLHUFHWKH pleadings and to assess the proof in order to see whether there is a genuine

QHHGIRUWULDO´Phaff v. Gerner, 303 A.2d 826, 829 (Pa. 1973).

As already explained, Father Warnick makes various allegations, but he fails to do what the law requires him to do in order to survive a motion for

32 summary judgment: he fails to offer evidence on some of the required elements of his claims. He alleges that statements are false but fails to produce evidence that they are false, and in many instances, as previously described, he admits their truth. For example, he claims that it is false that he and Sarah Caswell lived together before they were married (see 'HIV¶0RW6XPP- 3O¶V$QVZHULQ

2SS¶QWR'HIV¶0RW6XPP- ) but concedes they spent the night or weekends DWRQHDQRWKHU¶VKRPHV while he was still married to someone else.2

He also admits to the Facebook sexual position quiz. (See 'HIV¶0RW6XPP-

Ex. A, Am. Compl. ¶ 32). Consequently, RWKHUV¶statements about his Facebook page, while perhaps embarrassing, are not false and cannot constitute defamation. Father Warnick concedes that posting sexual information on

Facebook and living with a woman before marriage might be construed by an ecclesiastical court as ³FRQGXFWXQEHFRPLQJRIDPHPEHURIWKHFOHUJ\.´ (See

'HIV¶0RW6XPP-([':DUQLFN'HS165:21±166:2, Aug. 22, 2013.)

Consequently, statements made by others to that same effect are not false and not defamation under the law.

Father Warnick alleges that certain written communications exist, but he provides no evidence for them. (See Defs.¶ 0RW6XPP-([*3O¶V5HVSWR

'HIV¶ First Set of Interrogs., No. 21.) He alleges that a vote in 2011 constituted a new and binding contract, but he provides no evidence in support of this allegation. (See 'HIV¶0RW6XPP- 3O¶V$QVZHULQ2SS¶QWR'HIV¶0RW

Summ. J. ¶ 51.) He alleges a besmirched reputation, but offers no evidence for it. (See, e.g.3O¶V%ULQ2SS¶QWR'HIV¶0RW6XPP-DW He alleges

2 )DWKHU:DUQLFNMXVWTXLEEOHVZLWKWKHSODLQPHDQLQJRIWKHSKUDVH³OLYLQJWRJHWKHU´

33 economic losses, but offers no evidence of them. (See, e.g., 'HIV¶0RW6XPP

J. Ex. A Am. Compl. ¶¶ 67, 69, 71, 81, 90, 99, 101, 109, & 113.)

)DWKHU:DUQLFN¶Vmere allegations are not enough to allow his claims to proceed to a jury. At this stage, Father Warnick must produce evidence of falsity, the existence of contracts, and damages among other required elements of his claims. He failed to do so. Consequently, having failed to produce necessary

HYLGHQFH)DWKHU:DUQLFN¶VFODLPVare insufficient to survive a motion for summary judgment.

34 IV. CONCLUSION

Even if the Bill of Rights did not contain an Establishment Clause and a

Free Exercise Clause protecting religious freedom, Defendants would be entitled to summary judgment, because Father Warnick failed to make out the elements of his claims or offer sufficient evidence under the law for any of his claims to proceed to trial. More fundamentally, Father :DUQLFN¶VFODLPVDUHEDUUHG because the First Amendment guarantees the free exercise of religion and provides for the separation of church and state. Father Warnick asks this Court

WRLQWHUIHUHZLWKDFKXUFK¶VFKRLFHRIPLQLVWHUZKLFKLV one of the deepest and most elemental forms of religious expression there is, and which is exactly the kind of religious choice the First Amendment was expressly designed to protect.

Such state invasion of religious matters is emphatically forbidden by the

Constitution. $VWKH&KLHI-XVWLFHRIWKH8QLWHG6WDWHVH[SUHVVHGLW³7KH&KXUFK

PXVWEHIUHHWRFKRRVHWKRVHZKRZLOOJXLGHLWRQLWVZD\´Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 710 (2012).

BY THE COURT:

______Lisa M. Rau, J.

Dated: April 15, 2014

35 Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (2004) 149 Lab.Cas. P 34,827, 9 Wage & Hour Cas.2d (BNA) 875

Labor and Employment Professional Employees KeyCite Yellow Flag - Negative Treatment Labor and Employment Distinguished by Davis v. Baltimore Hebrew Congregation, D.Md., November 27, 2013 Executive, Administrative, or Professional Employees 363 F.3d 299 The exempt executive, administrative or United States Court of Appeals, professional employee exceptions to the Fair Fourth Circuit. Labor Standards Act (FLSA) are limited to salaried employees and must be proven by the Ferman SHALIEHSABOU, Plaintiff-Appellant, employer by clear and convincing evidence. v. Fair Labor Standards Act of 1938, § 1 et HEBREW HOME OF GREATER WASHINGTON, seq., 29 U.S.C.A. § 201 et seq.; 29 C.F.R. §§ INCORPORATED, Defendant-Appellee. 541.1-541.3.

No. 03-1314. | Argued: Jan. 21, Cases that cite this headnote 2004. | Decided: April 2, 2004.

Synopsis [2] Labor and Employment Background: Employee of predominantly Jewish nursing Minimum Wages and Overtime Pay home who served as Mashgiach, or kosher supervisor, Labor and Employment brought state-court action seeking unpaid overtime wages Fair Labor Standards Act allegedly due and asserting claims under both state law and The Fair Labor Standards Act (FLSA) is Fair Labor Standards Act (FLSA). Nursing home removed commonly referred to as the minimum wage and action. On nursing home's motion for summary judgment, maximum hour law; the purpose of the FLSA is the United States District Court for the District of Maryland, to protect all covered workers from substandard Alexander Williams, Jr., J., 247 F.Supp.2d 728, granted wages and oppressive working hours. Fair Labor motion. Employee appealed. Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.

Holdings: The Court of Appeals, Williams, Circuit Judge, 4 Cases that cite this headnote held that: [3] Labor and Employment [1] employee was within ministerial exemption to application Strict or Liberal Construction of federal employment laws, and Labor and Employment Strict or Liberal Construction of [2] nursing home was a religious institution for purposes of Exemptions ministerial exception. To effectuate the goals of the Fair Labor Standards Act (FLSA), courts construe coverage Affirmed. under the FLSA liberally to apply to the furthest reaches consistent with congressional direction; Luttig, Circuit Judge, dissented and filed opinion. broad coverage is essential to accomplish the goal of outlawing from interstate commerce goods produced under conditions that fall below minimum standards of decency, and in West Headnotes (12) accordance with that goal, exemptions from or exceptions to the Act's requirements are to be [1] Labor and Employment narrowly construed. Fair Labor Standards Act of Salaried Status 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.

2 Cases that cite this headnote 1 Cases that cite this headnote

[4] Civil Rights [7] Labor and Employment Exemptions Employments Included in General In applying the primary duties test to determine The commercial activities of religious whether an individual falls within the ministerial institutions are covered by the Fair Labor exception of Title VII, the Court of Appeals Standards Act (FLSA). Fair Labor Standards Act focuses on the function of the position, and of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. not whether the individual holding that position is formally ordained, the Court asks whether Cases that cite this headnote a position is important to the spiritual and pastoral mission of the church; as a general [8] Labor and Employment rule, if the employee's primary duties consist of Particular Exemptions in General teaching, spreading the faith, church governance, The ministerial exception to the Fair Labor supervision of a religious order, or supervision or Standards Act (FLSA) applies only where the participation in religious ritual and worship, he employer is a religious institution and the or she should be considered clergy. Civil Rights employee's primary duties are ministerial in Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e nature; the exception does not apply to the et seq. religious employees of secular employers or to 8 Cases that cite this headnote the secular employees of religious employers. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. [5] Civil Rights Exemptions 6 Cases that cite this headnote Labor and Employment Particular Exemptions in General [9] Labor and Employment The ministerial exception under Fair Labor Particular Exemptions in General Standards Act (FLSA) and Title VII operates Employee of predominantly Jewish nursing to exempt from the coverage of various home who served as Mashgiach, or kosher employment laws the employment relationships supervisor, was within ministerial exemption to between religious institutions and their application of federal employment laws even ministers. Fair Labor Standards Act of 1938, § 1 though he was not ordained as a rabbi, precluding et seq., 29 U.S.C.A. § 201 et seq.; Civil Rights his FLSA action against nursing home seeking Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e overtime pay allegedly due; employee, who et seq. claimed clerical federal income tax exemption, performed sacerdotal functions of Jewish faith 2 Cases that cite this headnote at nursing home, essentially participating in religious ritual by supervising kitchen staff, [6] Labor and Employment overseeing preparation of kosher diet, and Particular Exemptions in General starting and kosherizing ovens and kitchen The ministerial exception to the Fair Labor utensils. Fair Labor Standards Act of 1938, § 1 Standards Act (FLSA) applies only to et seq., 29 U.S.C.A. § 201 et seq. employment relationships between religious 5 Cases that cite this headnote institutions and their ministers. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. [10] Labor and Employment Particular Exemptions in General

There is no requirement that an individual have the final say on spiritual matters to fall within ministerial exemption to application of federal Affirmed by published opinion. Judge WILLIAMS wrote employment laws. the opinion, in which Judge WIDENER concurred. Judge LUTTIG wrote a dissenting opinion. Cases that cite this headnote

OPINION [11] Civil Rights Exemptions WILLIAMS, Circuit Judge: Labor and Employment Particular Exemptions in General Ferman Shaliehsabou, a kosher supervisor, appeals the grant of summary judgment in favor of his former employer, the Predominantly Jewish nursing home was a Hebrew Home of Greater Washington, in this action brought religious institution for purposes of ministerial under the over-time provisions of the Fair Labor Standards exception to application of federal employment Act. Because Shaliehsabou is employed in a ministerial role laws; home was religiously affiliated, its by- by a religiously affiliated employer and thus not entitled to laws defined it as a religious and charitable overtime under the Act, we affirm the district court's grant of non-profit corporation with a mission to provide summary judgment. elder care to aged of Jewish faith in accordance with precepts of Jewish law and customs, home maintained a rabbi on staff, home employed a kosher supervisor to ensure compliance with I. Jewish dietary laws, and home placed a mezuzah on every resident's doorpost. From 1992 until August 2000, Ferman Shaliehsabou, an Orthodox Jewish man, worked at the Hebrew Home of 7 Cases that cite this headnote Greater Washington (the Hebrew Home) as a mashgiach. 1 The term mashgiach is defined as “an inspector appointed by a [12] Civil Rights board of Orthodox rabbis to guard against any violation of the Exemptions Jewish dietary laws.” Random House Webster's Unabridged Dictionary 1181 (2d ed.1998). Shaliehsabou served as a part- Labor and Employment time mashgiach from 1992 until 1994, when he was elevated Particular Exemptions in General to a full-time position. He continued in his position as a full- A religiously affiliated entity is a religious time mashgiach at the Hebrew Home until resigning from institution for purposes of the ministerial work in August 2000. exception to application of federal employment laws whenever that entity's mission is marked by 1 Although the term appears to have multiple spellings, clear or obvious religious characteristics. to be consistent with the opinion of the district court, 6 Cases that cite this headnote we use the spelling “mashgiach” in the singular and “mashgichim” in the plural. The Hebrew Home is a non-profit religious and charitable corporation whose mission, according to its By-Laws, is Attorneys and Law Firms to serve “aged of the Jewish faith in accordance with the precepts of Jewish law and customs, including the observance *300 ARGUED:Paul Frederick Newhouse, Towson, of dietary laws.” (J.A. at 101.) The Hebrew Home accepts Maryland, for Appellant. *301 Jeffrey Jules Pargament, persons of all faiths, but approximately 95% of its residents Piliero, Mazza & Pargament, Washington, D.C., for are Jewish. All members of its board of directors are Jewish. Appellee. The Hebrew Home maintains a synagogue on its premises and holds twice-daily religious services conducted by an ordained Before WIDENER, LUTTIG, and WILLIAMS , Circuit rabbi, who serves as a full-time employee. Each resident's Judges.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (2004) 149 Lab.Cas. P 34,827, 9 Wage & Hour Cas.2d (BNA) 875 room contains a “mezuzah,” defined as “a parchment scroll reference any qualifications required of mashgichim. There inscribed on one side with the Biblical passages Deut. 6:4-9 was, however, “no secular health or safety rationale for the and 11:13-21 and on the other side with the word Shaddai (a work performed by the [m]ashgichim.” (J.A. at 122.) name applied to God), inserted in a small case or tube ... and attached by some Jews to the doorpost of the home.” Random 2 The Vaad is “a non-profit organization of Orthodox House Webster's Unabridged Dictionary 1212 (2d ed.1998). Jewish congregational rabbis in the Metropolitan Washington area.” (J.A. at 108.) The Vaad is also “the Consistent with its mission to serve the spiritual needs of primary agency of kashruth supervision” in that area. its residents, the Hebrew Home abides by the “halakha.” (J.A. at 109.) Halakha “is the overall term for Jewish law” and literally Rabbi Kalman Winter, Director of the Vaad, explained the means “the way on which one goes.” Rabbi Hayim Halevy role of the mashgiach in a declaration made in connection Donin, To Be a Jew: A Guide to Jewish Observance in with this case. According to Rabbi Winter, mashgichim Contemporary Life 29 (1972). It is “the Jewish way for are “supervisors” who “are qualified under Judaic law securing and perpetuating the Jewish way of life.” Id. at 32. to supervise the preparation of food to ensure that it is In accordance with this guiding precept, the Hebrew Home kosher.” (J.A. at 109.) Mashgichim, according to Rabbi provides its residents kosher meals prepared in accordance Winter, “must have a knowledge of the basic laws of with the Jewish dietary laws, which are collectively known as kashruth” and “must also be a Sabbath observer and be a the “kashruth.” Id. at 97. As part of the halakha, “[t]he Jewish fully observant Jew.” (J.A. at 110.) Such persons “generally dietary laws prescribe not merely a diet for the body but a have obtained their knowledge of the laws of kashruth diet for the soul as well, not so much a diet to maintain one's through experience and study at a ‘yeshiva.’ ” 3 (J.A. at 111.) physical *302 well being as a diet to maintain one's spiritual Moreover, according to Rabbi Winter, mashgichim “possess well-being.” Id. at 98. In other words, the authority to enforce the laws of kashruth and make on-the- The faithful Jew observes the laws spot decisions based on their knowledge and understanding of kashrut [h] not because he has of the situation at hand.” (J.A. at 111.) Rabbi Winter stated become endeared of its specific details that complying with kosher dietary laws “is an integral and nor because it provides him with essential part of Jewish identity.” (J.A. at 109.) pleasure nor because he considers them good for his health nor because 3 A yeshiva is “an Orthodox Jewish school of higher the Bible offers him clear-cut reasons, instruction in Jewish learning, chiefly for students but because he regards them as Divine preparing to enter the rabbinate.” Random House commandments and yields his will Webster's Unabridged Dictionary 2202 (2d ed.1998). before the will of the Divine and to the Although the Vaad periodically recommended an appropriate disciplines imposed by his faith. wage for the mashgichim, the Hebrew Home retained responsibility for paying them. The Vaad did retain the ability Id. at 98. to remove mashgichim from service at the Hebrew Home and also possessed the ability to take disciplinary action against To ensure that the food services department, operated by an individual mashgiach. The Hebrew Home had concurrent Sodexho Services (Sodexho), would prepare kosher meals, power to discipline and fire mashgichim, but the Hebrew the Hebrew Home entered into an agreement with the Home would only take such a disciplinary measure after 2 Rabbinical Council of Greater Washington (the Vaad) consultation with the Vaad. whereby the Vaad would recommend mashgichim to serve in the Hebrew Home. Pursuant to the agreement, the Vaad Shaliehsabou, as mentioned, has been a devout Orthodox Jew was the “sole authority” for determining compliance with his entire life and began working at the Hebrew Home as a the kashruth, and any mashgiach “must be approved by part-time mashgiach in 1992. Shaliehsabou attended yeshiva the [Vaad] and chosen after [the Vaad's] consultation with in Colorado and received *303 a Bachelor of Talmudic the ... Hebrew Home.” (J.A. at 51.) All “kitchen operations Law from Ner Israel Rabbinical College in Baltimore. including food preparation and food service,” had to be taken Shaliehsabou occasionally purchased and read books to “under the supervision of the mashgiach.” (J.A. at 51.) The further his understanding of Jewish dietary laws and testified agreement between the Hebrew Home and the Vaad did not

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (2004) 149 Lab.Cas. P 34,827, 9 Wage & Hour Cas.2d (BNA) 875 that he is engaged in a lifelong learning of Jewish law and Shaliehsabou worked less than eighty hours during a bi- custom. He also recognized that failure to stop a violation of weekly period, hours were deducted from his accrued leave the kashruth by a kitchen worker was “a sin like any other time to make sure that his total hours for the bi-weekly period sin.” (S.A. at 21.) Shaliehsabou declared himself as “clergy” equaled eighty. If Shaliehsabou exceeded his leave time, he on his federal tax returns, and he also took a parsonage would be docked pay for absences, including absences of less exemption from his salary. (J.A. at 129.) than one day. Shaliehsabou was paid for less than eighty hours of work on a total of five occasions, all in the year 2000. Shaliehsabou's “basic responsibility [at the Hebrew Home] Those shortfalls were due, according to the Hebrew Home, was to guard against any violations of Jewish dietary to administrative errors, and the Hebrew Home compensated law.” (J.A. at 115.) Pursuant to that end, Shaliehsabou's him for the shortfalls prior to the institution of this lawsuit. “primary duties” included “inspecting deliveries,” “opening and closing the refrigerators to insure the integrity of the [1] Shaliehsabou ceased work at the Hebrew Home in kosher status of the kitchen,” “insuring that all meat and August 2000 and, in November 2001, commenced an action dairy products were stored and kept separate during food in Maryland state court, alleging that the Hebrew Home preparation,” and “lighting all ovens and heating equipment violated the Fair Labor *304 Standards Act of 1938, 29 in accordance with the requirements of Jewish law.” (J.A. U.S.C.A. §§ 201-219 (West 1998 & Supp.2003) (FLSA), and at 17.) Shaliehsabou would also cleanse kitchen utensils and the Maryland Wage and Hour Law, Md.Code Ann., Labor other items if they became non-kosher. Shaliehsabou had the and Employment § 3-415 (1999). Specifically, Shaliehsabou ability and the duty to instruct the kitchen staff on complying alleged that the Hebrew Home failed to pay him overtime with the kashruth and to report any violations. He was “the wages as required by federal and state laws. The Hebrew liaison between the Home and the Vaad on matters of Jewish Home filed a notice of removal in January 2002, pursuant dietary law.” (J.A. at 115.) Shaliehsabou was unsure who was to 28 U.S.C.A. § 1441(a) (West 1994), and the case was his direct employer and was told by the general manager of removed to the United States District Court for the District Sodexho, “[w]ith a rabbi's questions, go to rabbinical, and for of Maryland. Following discovery, the parties filed cross- any other issues you have, just come to [food services].” (S.A. motions for summary judgment. The district court found that at 36.) Shaliehsabou fell within the “ministerial exception” to the FLSA and granted the Hebrew Home's motion for summary Shaliehsabou made decisions regarding the kitchen's judgment on February 12, 2003. The district court also compliance with the kashruth, but occasionally he would found that, assuming Shaliehsabou did not fall within the refer “difficult questions of Jewish law” 4 to the Vaad. (J.A. ministerial exception, Shaliehsabou was an exempt executive, at 115-116, 111.) The mashgichim, not the food services administrative or professional employee, as defined by 29 department, had “final say” over matters relating to the kosher C.F.R. §§ 541.1-541.3 (2003). 5 Shaliehsabou timely appeals preparation of food. (J.A. at 113.) When a mashgiach decided, the district court's decision. 6 for example, that unclean food needed to be discarded, it could not be provided to residents under any circumstances. 5 All of these exceptions are limited to salaried employees, see 29 C.F.R. § 541.118(a) (2003), and must be proven 4 For example, on one occasion a new employee put milk by the employer by clear and convincing evidence. into a mixer used for beef products, and Shaliehsabou Shockley v. City of Newport News, 997 F.2d 18, 21 (4th contacted the Vaad to determine if he had to dispose of all Cir.1993). The district court did not make a specific of the products involved or instead could ritually cleanse finding that Shaliehsabou was a salaried employee the mixer and utensils involved. and, on appeal, Shaliehsabou argues that he was not During Shaliehsabou's employment as a full-time mashgiach, salaried because he was assigned an hourly wage and he was paid for at least eighty hours of work each bi-weekly his pay was docked for absences of less than one day. Because we decide the case on the application of the period. Shaliehsabou, like all employees, including salaried ministerial exception, we do not consider the district employees, was assigned an hourly rate of pay for the purpose court's other grounds for granting summary judgment, of determining benefits. Although Shaliehsabou occasionally namely, whether Shaliehsabou is exempt from the FLSA received additional hourly compensation for hours worked as an executive, administrator or professional. over eighty per bi-weekly period, he claims that he was not compensated for all of the overtime hours he worked. When

6 The district court did not specifically address maintenance of the minimum standard of living necessary Shaliehsabou's claim under Maryland's Wage and Hour for health, efficiency, and general well-being of workers” law, and, on appeal, Shaliehsabou does not pursue the burdened interstate commerce and constituted an unfair state law claim. method of competition. 29 U.S.C.A. § 202(a). Congress, in addition to restricting the use of child labor by employers, mandated payment of a minimum wage for employees and, II. relevant here, required that employees be paid at least time and a half for time worked beyond forty hours in a week. We review the district court's grant of summary judgment de 29 U.S.C.A. §§ 206-207(a). To effectuate the goals of the novo. See Hill v. Lockheed Martin Logistics Mgmt. Inc., 354 FLSA, courts construe coverage under the FLSA “liberally F.3d 277, 283 (4th Cir.2004) (en banc). Summary judgment to apply to the furthest reaches consistent with congressional is appropriate “if the pleadings, depositions, answers to direction.” Mitchell v. Lublin, McGaughy & Assoc., 358 U.S. interrogatories, and admissions on file, together with the 207, 211, 79 S.Ct. 260, 3 L.Ed.2d 243 (1959). “[B]road affidavits, if any, show that there is no genuine issue as to coverage is essential to accomplish the goal of outlawing from any material fact and that the moving party is entitled to interstate commerce goods produced under conditions that a judgment as a matter of law.” Fed.R.Civ.P. 56(c) (West fall below minimum standards of decency.” Tony & Susan 1994); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 Alamo Found. v. Secretary of Labor, 471 U.S. 290, 296, S.Ct. 2548, 91 L.Ed.2d 265 (1986). We construe the evidence 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). In accordance with in the light most favorable to Shaliehsabou and draw all that goal, “ ‘[e]xemptions from or exceptions to the Act's reasonable inferences in his favor. See Anderson v. Liberty requirements are to be narrowly construed.’ ” Monahan, 95 Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d F.3d at 1268 (quoting Johnson v. City of Columbia, 949 F.2d 202 (1986). 127, 129-30 (4th Cir.1991)) (alteration in original).

Although the coverage of the FLSA is broad, two conditions A. must be met for the minimum wage and overtime provisions of the FLSA to apply to the Hebrew Home. First, the Hebrew [2] The FLSA is commonly referred to as “the Home must be an “[e]nterprise engaged in commerce or minimum wage/maximum hour law.” Monahan v. County in the production of goods for commerce,” 29 U.S.C.A. § of Chesterfield, 95 F.3d 1263, 1266 (4th Cir.1996) (internal 203(r), and second, Shaliehsabou must be an “employee,” quotation marks omitted). The purpose of the FLSA is which is defined under the FLSA to “mean [ ] any individual “to protect all covered workers from substandard wages employed by an employer,” 29 U.S.C.A. § 203(e). The FLSA and oppressive working hours.” Barrentine v. Arkansas- was amended in 1961 to include coverage over enterprises, Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, and, at that time, “[t]here was broad congressional consensus 67 L.Ed.2d 641 (1981). As an early Supreme Court case that ordinary commercial businesses should not be exempted examining the FLSA explained: from the Act simply because they happened to be owned by religious or other non-profit organizations.” Alamo, 471 U.S. ‘A fair day's pay for a fair day's work’ was the objective at 298, 105 S.Ct. 1953. The Hebrew Home does not disagree stated in the Presidential message which initiated the and concedes that it is an “enterprise” for purposes of the Act. legislation. That message referred to a ‘general maximum Instead, the Hebrew Home argues that because the position of working week,’ ‘longer hours on the payment of time and mashgiach falls within the ministerial exception to the FLSA, a half for overtime’ and the evil of ‘overwork’ as well as Shaliehsabou is not an “employee” under the FLSA. ‘underpay.’

*305 Overnight Motor Transp. Co., Inc. v. Missel, 316 U.S. 572, 578, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942) (footnote B. omitted). We have recognized that there is a ministerial exception to the [3] Specifically, Congress found that “the existence, in FLSA. Dole v. Shenandoah Baptist Church, 899 F.2d 1389, industries engaged in commerce or in the production of 1396 (4th Cir.1990). As we noted in Dole, “[t]his exemption goods for commerce, of labor conditions detrimental to the is derived from the congressional debate [about the FLSA]

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (2004) 149 Lab.Cas. P 34,827, 9 Wage & Hour Cas.2d (BNA) 875 and delineated in guidelines issued by the Labor Department's we implicitly have held that the ministerial exceptions under Wage and House Administrator.” Id. The relevant portion of the two Acts are coextensive in scope. For example, we have those guidelines provides: relied on Title VII ministerial exception cases in Dole, and we have cited both Dole and Title VII cases together in support Persons such as nuns, monks, priests, of the proposition that “[t]he ministerial exception operates lay brothers, ministers, deacons, and to exempt from the coverage of various employment laws other members of religious orders the employment relationships between religious institutions who serve pursuant to their religious and their ‘ministers.’ ” EEOC v. Roman Catholic Diocese of obligations in schools, hospitals, and Raleigh, N.C., 213 F.3d 795, 800 (4th Cir.2000) (citing both other institutions operated by their Dole and Rayburn ). Accordingly, our precedent in Dole and church or religious order shall not be Diocese of Raleigh suggests that when determining who is a considered to be “employees.” member of a religious order serving pursuant to his religious obligations, for purposes of the ministerial exception to the Field Operations Handbook, Wage and Hour Division, U.S. FLSA, we apply the same primary duties test that we apply for Dep't of Labor, § 10b03 (1967). purposes of the Title VII ministerial exception. This common sense approach creates continuity between the FLSA and Considering the FLSA ministerial exception in Dole, we Title VII, two employment laws of general applicability, held that the lay teachers *306 at a religious school and it allows us to avoid answering a difficult constitutional did not fall within the ministerial exception because the question-i.e., whether the First Amendment would otherwise “teachers in the present case perform no sacerdotal functions; compel an exception to the FLSA coextensive with that neither do they serve as church governors. They belong to recognized as constitutionally mandated in the Title VII no clearly delineated religious order.” Dole, 899 F.2d at 8 1396. Importantly, in holding that the ministerial exception context. did not apply, we looked to decisions dealing with the ministerial exception under Title VII, such as Rayburn v. Gen. 7 In Rayburn v. Gen. Conference of Seventh-Day Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Adventists, 772 F.2d 1164 (4th Cir.1985), we held Cir.1985) and EEOC v. Southwestern Baptist Theological that applying Title VII to the employment relationship Seminary, 651 F.2d 277 (5th Cir.1981). Dole, 899 F.2d at between religious institutions and their ministerial 1396. employees would violate the Free Exercise and Establishment Clauses of the First Amendment. We [4] In the Title VII context, we have applied a “primary since have held that the Supreme Court's intervening decision in Employment Div., Dep't of Human Resources duties” test to determine whether an individual falls within of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 the ministerial exception. In applying the primary duties L.Ed.2d 876 (1990), has not abrogated the ministerial test, we focus on “the function of the position,” and not exception. EEOC v. Roman Catholic Diocese of Raleigh, whether the individual holding that position is formally N.C., 213 F.3d 795, 800 n* (4th Cir.2000). ordained-i.e., we ask “whether a position is important to 8 the spiritual and pastoral mission of the church.” Rayburn, See Harris v. United States, 536 U.S. 545, 555, 122 772 F.2d at 1168-69 (4th Cir.1985). Thus, “[a]s a general S.Ct. 2406, 153 L.Ed.2d 524 (2002) (explaining canon rule, if the employee's primary duties consist of teaching, of construction that if a statute raises constitutional spreading the faith, church governance, supervision of a concerns the Court will first look to see if the statute can be construed in a manner to avoid difficult constitutional religious order, or supervision or participation in religious questions). ritual and worship, he or she should be considered ‘clergy’.” Id. at 1169 (quoting Bruce N. Bagni, Discrimination in the Furthermore, using the primary duties test to determine Name of the Lord: A Critical Evaluation of Discrimination the scope of the FLSA's *307 ministerial exception is in by Religious Organizations, 79 Colum. L.Rev. 1514, 1545 accord with other statutory exceptions to the FLSA. The (1979)). minimum wage and overtime requirements, codified in §§ 206-207, do not apply to “any employee employed in a bona [5] Although the Title VII ministerial exception is based on fide executive, administrative, or professional capacity.” 29 U.S.C.A. § 213(a)(1). The implementing regulations look constitutional principles 7 and not on “congressional debate” to the “primary duties” of a salaried position to determine and Labor Department guidelines as is the FLSA exception,

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (2004) 149 Lab.Cas. P 34,827, 9 Wage & Hour Cas.2d (BNA) 875 whether an employee is a bona fide executive, administrator interference, bestowal of such a designation does not control or professional. See 29 C.F.R. §§ 541.1-541.3. 9 Courts are their extra-religious status.” Southwestern Baptist, 651 F.2d thus familiar and comfortable with examining the primary at 283. In summary, the ministerial exception to the FLSA duties of an employee when determining the scope of applies only where the employer is a religious institution and exceptions under the FLSA. In sum, by determining whether the employee's primary duties are ministerial in nature. The a position is ministerial by referencing the primary duties of exception does not apply to the religious employees of secular the position, the FLSA's ministerial exception is coextensive employers or to the secular employees of religious employers. with that recognized under Title VII and parallels the inquiry made for other exceptions to the FLSA. C. 9 In fact, the primary duties test for the ministerial exception is quite similar to the primary duties test 1. applied to school employees under the professional exception. That test exempts school employees whose Turning to the instant case, Shaliehsabou argues both that primary duties include “[t]eaching, tutoring, instructing, his primary duties *308 are not ministerial and that the or lecturing in the activity of imparting knowledge.” Hebrew Home is not a religious institution. We address each 29 C.F.R. § 541.3(a)(3). As discussed above, supra contention in turn. note 5, the district court applied the primary duties tests for the executive, administrative and professional exemptions and found that Shaliehsabou qualified for First, Shaliehsabou argues that his position is not covered by each exemption. the ministerial exception because his primary duties involved nothing more than inspecting incoming food deliveries and [6] [7] [8] It is further important to note that ensuring the kosher preparation of food. Shaliehsabou avers the primary duties test in this context does not permit that, apart from being an Orthodox Jew, no special training is employers to avoid the broad coverage of the FLSA. required to serve as a mashgiach. He likens his case to Dole, First, the ministerial exception to the FLSA applies only wherein we held that to apply the ministerial exception to all to “employment relationships between religious institutions persons simply based on their sincere religious beliefs or their and their ‘ministers.’ ” Diocese of Raleigh, 213 F.3d at membership in a religious group would “create an exception 800 (emphases added); see also EEOC v. Catholic Univ. capable of swallowing up the rule.” Dole, 899 F.2d at 1397 of Am., 83 F.3d 455, 474 (D.C.Cir. 1996) (Henderson, (quotation marks omitted). J., concurring) (concluding that ministerial exception did not apply to secular decision taken by secular institution, The Hebrew Home, in contrast, argues that the position of but concurring in judgment because the final employment mashgiach is intrinsically religious, because maintaining a decision rested with the Catholic church). Also, as discussed kosher diet is an integral part of Judaism and reflects a above, the commercial activities of religious institutions are divine commandment from God. Involvement in the kosher covered by the FLSA. See Alamo, 471 U.S. at 296, 105 S.Ct. preparation of food, the Hebrew Home asserts, amounts 1953 (“The statute contains no express or implied exception to the supervision of religious ritual and worship. Indeed, for commercial activities conducted by religious or other according to the Hebrew Home, there is no secular purpose nonprofit organizations.”); Brock v. Wendell's Woodwork, for employing mashgichim. Although the Hebrew Home Inc., 867 F.2d 196, 198-99 (4th Cir.1989) (holding that child concedes that Shaliehsabou was not formally ordained, it labor restrictions under the FLSA applied to work performed points to his own representations, as seen on his federal tax in connection with commercial activities of a religious returns, that he considered himself to be clergy. organization). In addition, we have held that “the exception would not apply to employment decisions concerning purely Although no court has considered whether a mashgiach is custodial or administrative personnel.” Diocese of Raleigh, exempted from the FLSA because he performs primarily 213 F.3d at 801; see also Weissman v. Congregation Shaare ministerial duties: three recent cases strongly suggest that Emeth, 38 F.3d 1038 (8th Cir.1994) (applying ADEA to exemption is appropriate here. In Diocese of Raleigh, we secular administrator of Jewish temple). Moreover, “[w]hile held that a female who served as a part-time music teacher religious organizations may designate persons as ministers and Director of Music Ministry at a Catholic cathedral was a for their religious purposes free from any governmental “minister.” 213 F.3d at 802. We found first that the position

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (2004) 149 Lab.Cas. P 34,827, 9 Wage & Hour Cas.2d (BNA) 875 was “ ‘important to the spiritual and pastoral mission of [9] [10] We cannot see any meaningful distinction between the church.’ ” Diocese of Raleigh, 213 F.3d at 802 (quoting Shaliehsabou and the music ministers at issue in Diocese of Rayburn, 772 F.2d at 1169). “Music,” we explained, “is an Raleigh and Starkman or the communications manager in integral part of many different religious traditions,” and also Alicea-Hernandez. First, Shaliehsabou's duties required him “a vital means of expressing and celebrating those beliefs to perform religious ritual. He supervised and participated in which a religious community holds most sacred.” Id. We religious ritual and worship. Shaliehsabou was responsible declined to apply the ministerial exception in a manner that for starting and kosherizing the ovens and cleansing kitchen would “demote music below other liturgical forms.” Id. We utensils in accordance with the rules of kashruth. He also concluded that, because the music teacher in question was oversaw the preparation of kosher food, a key aspect of the “the primary human vessel through whom the church chose to Jewish halakha. Shaliehsabou arguably lacked independent spread its message in song,” she met the ministerial exception. authority to make some decisions regarding food preparation, Id. at 804. Shaliehsabou, much like the Director of Music but “there is no requirement that an individual have the ‘final Ministry in Diocese of Raleigh, is the primary human vessel say’ on spiritual matters.” Diocese of Raleigh, 213 F.3d at through whom the Hebrew Home chose to assure that the 803. Importantly, it was his responsibility to consult with Jewish dietary laws were followed. In addition, just as sacred the Vaad for proper resolution of any concerns. In sum, music is integral to Catholicism, kosher food is an integral we cannot say, given the importance of dietary laws to the part of Judaism. Jewish religion, that the duties of mashgichim do not involve religious worship and ritual. Similarly, the Fifth Circuit has held that a choir director falls within the ministerial exception to the Americans with In addition to performing religious ritual, Shaliehsabou Disabilities Act. Starkman v. Evans, 198 F.3d 173 (5th occupied a position that is central to the spiritual and pastoral Cir.1999). The court noted that “religious music plays a mission of Judaism. As a juridical religion, Judaism is highly important role in the spiritual mission of the church” dependent upon compliance with its laws, including the and that the choir director “did serve as a spiritual leader.” kashruth, and Shaliehsabou was the vessel through whom Id. at 176. The court conceded that “the facts ... are not compliance with the kashruth was ensured for residents at the as strong” as other cases invoking the ministerial exception Hebrew Home. Unlike the teachers in Dole, Shaliehsabou, but nonetheless concluded that, because the choir director through his mashgiach tasks, performed sacerdotal duties. “participated in religious rituals and had numerous religious As Shaliehsabou has admitted, in the Jewish faith, non- duties, [the position] qualifies as a ‘minister.’ ” Id. compliance with dietary laws is a sin. As explained above, Jews view their dietary laws as divine commandments, and Finally, the Seventh Circuit, in Alicea-Hernandez v. Catholic compliance therewith is as important to the spiritual well- Bishop of Chicago, 320 F.3d 698 (7th Cir.2003), applied being of its adherents as music and song are to the mission of Rayburn and Diocese of Raleigh in holding that the Hispanic the Catholic church. In short, failure to apply the ministerial Communications Manager of a Catholic church was a exception in this case would denigrate the importance of minister for purposes of the exception. The court explained keeping kosher to Orthodox Judaism. *309 that a “press secretary is responsible for conveying the message of an organization to the public as a whole.” Accordingly, we hold that Shaliehsabou is a “minister” for Alicea-Hernandez, 320 F.3d at 704. The communications purposes of the ministerial exception to the FLSA because manager was “a liaison between the Church and the his primary duties included supervision and participation in community” and was “integral in shaping the message that the religious ritual and worship, and his position is important Church presented.” Id. The court contrasted the position of to the spiritual mission of Judaism. Because we find that communications manager with that of a translator, and noted Shaliehsabou is a “minister,” we next consider whether the that “if she had simply served in the capacity of translating the Hebrew Home, in its employment of Shaliehsabou, acted as message from English to Spanish, this would be a different a religious institution. case.” Id. at 704 n. 4. Because, however, the position served to shape and convey the message of the church to the public, the court found that the communications manager was a 2. “minister.”

We have never addressed whether the phrase “religious at 466. Thus, the ministerial exception applied because the institution,” in the context of the ministerial exception, University, as a religiously affiliated entity with substantial applies only to churches or church-operated entities, or religious character, assumed the role of a religious institution whether it has broader meaning. Our cases applying the in deciding to deny tenure. ministerial exception, Rayburn, Diocese of Raleigh, Dole, and Bell v. Presbyterian Church, U.S.A., 126 F.3d 328 (4th [11] [12] We find the logic of Scharon and EEOC Cir.1997), all involved Christian churches or church-operated v. Catholic University persuasive, and we conclude that entities. Each of these cases turned upon the duties of the a religiously affiliated entity is a “religious institution” individual, not the religious *310 status of the employing for purposes of the ministerial exception whenever that entity. Given the lack of authority in our cases, we look to entity's mission is marked by clear or obvious religious the decisions of our sister circuits for instruction. Numerous characteristics. Applying that standard here, we find that courts have held that the term “religious institution,” in this the Hebrew Home is a religious institution for purposes of context, can include religiously affiliated schools, hospitals, applying the ministerial exception. and corporations. See EEOC v. Catholic Univ., 83 F.3d at 461 (church-affiliated university); Geary v. Visitation of the Shaliehsabou's chief argument is that the Hebrew Home is Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir.1993) not a religious institution because its mission is providing (church-operated school); DeMarco v. Holy Cross High Sch., elder care, not providing religious services. We disagree. 4 F.3d 166 (2d Cir.1993) (church-operated school); Scharon As Scharon and EEOC v. Catholic University make v. St. Luke's Episcopal Presbyterian Hosp., 929 F.2d 360 clear, an entity can provide secular services and still (8th Cir.1991) (church-affiliated hospital); Natal v. Christian have substantial religious character. The Hebrew Home is & Missionary Alliance, 878 F.2d 1575 (1st Cir.1989) (non- religiously affiliated: its By-Laws define it as a religious profit religious corporation). Particularly instructive are and charitable non-profit corporation and declare that its the analyses provided in Scharon and EEOC v. Catholic mission is to provide elder care to “aged of the Jewish University. In Scharon, the Eighth Circuit addressed the faith in accordance with the precepts of Jewish law and application of the ministerial exception to a hospital chaplain. customs.” (J.A. at 101.) Pursuant to that mission, the Hebrew The court did not address whether the hospital was private Home maintained a rabbi on its staff, employed mashgichim or charitable, but it did note that the hospital “provides many to ensure compliance with the Jewish dietary *311 laws, secular services,” but nonetheless explained that “in its role and placed a mezuzah on every resident's doorpost. Although as [the chaplain's] employer, it is without question a religious we do not have to decide the full reach of the phrase organization.” Scharon, 929 F.2d at 362. The court based its “religious institution,” we hold that the phrase includes an finding on the fact that the hospital was church-affiliated and entity such as the Hebrew Home. Accordingly, we conclude that the job description for the position of chaplain made clear that the Hebrew Home is a religious institution for purposes that it was a ministerial position. The court's holding was a of applying the ministerial exception to the FLSA. narrow one; the hospital was a religious institution, because, in acting as the employer of a minister, the hospital was acting as an institution with “substantial religious character.” III. Scharon, 929 F.2d at 362. Because we find both that the Hebrew Home was acting In EEOC v. Catholic University, the D.C. Circuit applied the as a religious institution in employing Shaliehsabou and ministerial exception to a professor seeking a tenured position that Shaliehsabou's primary duties were ministerial, we hold in the Department of Canon Law at Catholic University. that Shaliehsabou falls within the ministerial exception to The D.C. Circuit chose to apply the ministerial exception to the FLSA. Accordingly, Shaliehsabou is not an “employee” Catholic University because “the University's ecclesiastical under the FLSA, and we affirm the district court's grant of faculties serve as the instruments established by the Catholic summary judgment in favor of Hebrew Home. Church in the United States for teaching its doctrines and disciplines.” EEOC v. Catholic Univ., 83 F.3d at 464. Later, AFFIRMED the court noted that although the Academic Senate that made the tenure decision was secular, “it is by no means clear that its decision was unaffected by religious considerations.” Id. LUTTIG, Circuit Judge, dissenting:

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 10 Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299 (2004) 149 Lab.Cas. P 34,827, 9 Wage & Hour Cas.2d (BNA) 875

I do not believe that there is a “ministerial exemption” to the failing rehearing en banc by this court, to seek review in the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., and if there Supreme Court of the United States. were, I do not believe that it would be as far-reaching as the court holds today. All Citations

Because of the obvious importance of the issue decided, and 363 F.3d 299, 149 Lab.Cas. P 34,827, 9 Wage & Hour Cas.2d the evident incorrectness of the court's holding, I urge the (BNA) 875 appellant to seek rehearing en banc from this court, and

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 11 Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (1990) 51 Fair Empl.Prac.Cas. (BNA) 1372, 52 Empl. Prac. Dec. P 39,586...

clause. Age Discrimination in Employment Act of 1967, §§ 2 et seq., 4, 29 U.S.C.A. §§ 621 KeyCite Yellow Flag - Negative Treatment et seq., 623; Md.Code 1957, Art. 49B, § 16; Declined to Extend by Dolquist v. Heartland Presbytery, D.Kan., U.S.C.A. Const.Amend. 1. October 28, 2004 33 Cases that cite this headnote 894 F.2d 1354 United States Court of Appeals, District of Columbia Circuit. [2] Constitutional Law Employment discrimination Ralph L. MINKER, Appellant, Interpretation of appointment and v. antidiscrimination provisions of church BALTIMORE ANNUAL CONFERENCE constitution was inherently an ecclesiastical OF UNITED METHODIST CHURCH matter, depriving court of jurisdiction to hear and Bishop Joseph A. Yeakel, Appellees. minister's claim that church constitution created enforceable agreement that church would not No. 89–7009. | Argued Oct. discriminate against him on basis of age in 30, 1989. | Decided Jan. 19, 1990. making appointments.

Minister filed complaint for age discrimination and breach 44 Cases that cite this headnote of contract against his church. The United States District Court for the District of Columbia, Stanley S. Harris, J., 699 F.Supp. 954, dismissed complaint, and minister appealed. [3] Constitutional Law The Court of Appeals, Mikva, Circuit Judge, held that: (1) Clergy; Ministers maintenance of age discrimination suit would violate free Religious Societies exercise clause; (2) court lacked jurisdiction to hear minister's Action to determine or enforce right to claim that church constitution created enforceable agreement office; injunction that church would not discriminate against him on basis of Oral contract to provide minister with age in making appointments; and (3) oral contract to provide congregation more suited to his training and minister with congregation more suited to his training and skills in exchange for his continued work on skills in exchange for his continued work on temporary temporary assignment would create contractual assignment would create contractual relationship enforceable relationship enforceable in civil court if in civil court if such proceedings would not create excessive such proceedings would not create excessive entanglements with religious beliefs. entanglements with religious beliefs. U.S.C.A. Const.Amend. 1. Affirmed in part and remanded in part. 55 Cases that cite this headnote Gesell, District Judge, sitting by designation, filed opinion concurring in result. [4] Constitutional Law Religious Organizations in General Church is always free to burden its activities West Headnotes (4) voluntarily through contracts, and such contracts are fully enforceable in civil court. U.S.C.A. Const.Amend. 1. [1] Civil Rights Exemptions 16 Cases that cite this headnote Constitutional Law Employment discrimination Maintenance of minister's age discrimination suit against his church would violate free exercise

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (1990) 51 Fair Empl.Prac.Cas. (BNA) 1372, 52 Empl. Prac. Dec. P 39,586...

to a pastoral appointment in 1982. The following year, he *1355 **315 Appeal from the United States District Court assumed the pastorate of Mount Rainier Methodist Church on for the District of Columbia. a temporary, emergency basis. Complaint ¶ 8–9.

Attorneys and Law Firms Minker alleges that the Mount Rainier assignment paid him David S. Eggert, with whom Randal M. Shaheen, less than what a pastor of his qualifications and experience Washington, D.C. was on the brief, for appellant. would normally receive. Id. Minker complained to the district superintendent who, he claims, assured him that he would Thomas R. Kline, with whom Thomas E. Starnes, be “moved to a congregation more suited to his training and Washington, D.C. was on the brief, for appellees. skills, and more appropriate in level of income, at the earliest appropriate time.” Id. at ¶ 13. Minker made repeated requests Before MIKVA and BUCKLEY, Circuit Judges, and for reassignment thereafter, but as of June 1987 four years * GESELL, District Judge. had elapsed without Minker being offered a new assignment. Id. at ¶ 14. * Of the United States District Court for the District of Columbia, sitting by designation pursuant to 28 U.S.C. In July 1987, Minker filed suit in district court alleging that § 292(a). he had been denied a rightful “promotion” solely on the basis of his age. Minker asserted that appellee Bishop Joseph Opinion Yeakel—who is responsible for all pastoral appointments— had informed him that “he should not expect a new better level Opinion for the Court filed by Circuit Judge MIKVA. appointment and that Methodist pastors in their fifties cannot expect growth opportunities in new appointments.” Id. at ¶ Concurring Opinion filed by District Judge GESELL. 16. Minker further claimed that persons younger than he were selected for many open appointments. Id. MIKVA, Circuit Judge: The complaint alleged that appellees violated the Age Appellant, a Methodist minister, challenges a lower court Discrimination in Employment Act (“ADEA”), 29 U.S.C. order dismissing his complaint for age discrimination and §§ 621, 623 (1983), the Maryland Human Relations Law, breach of contract against the United Methodist Church. Md.Ann.Code Art. 49B, § 16, and Minker's “contract” with Appellant charges that he was denied a pastorship due his church. Complaint at ¶ 25. The contract claim was based to age discrimination, and that this violated federal and both on the district superintendent's oral promises to find him state law as well as his “contract” with the church. The a more suitable congregation, and on passages from the Book district court determined that the first amendment prohibits of Discipline—“the book of law of the United Methodist the government from regulating internal church decisions Church”—concerning the assignment of pastorships. Section about the promotion of pastors, because churches have 529.1 of the Book of Discipline states that “appointments broad discretion in determining who may speak for the *1356 **316 are to be made without regard to race, church. 699 F.Supp. 954 (D.D.C.1988). We affirm the district ethnic origin, sex, color, or age, except for the provisions of court's ruling to the extent that it dismissed appellant's age mandatory retirement.” discrimination claims. We remand for further proceedings on the contractual claim that appellees breached their promise Initially, Minker sought monetary damages and an injunction to give appellant a more suitable congregation at the earliest against age discrimination under the ADEA. He has since possible time. been appointed pastor of the Corkran Memorial Church, and now desires only damages and a general injunction against future discrimination. BACKGROUND Appellees moved to dismiss, claiming that the first Appellant, Ralph Minker, is a 63–year–old Methodist amendment barred appellant's suit. The district court granted minister employed by the Baltimore Annual Conference of the appellees' motion. 699 F.Supp. 954. The court held that the United Methodist Church. After serving for ten years as applying state and federal antidiscrimination legislation or a vocational counselor, Minker requested that he be returned

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (1990) 51 Fair Empl.Prac.Cas. (BNA) 1372, 52 Empl. Prac. Dec. P 39,586... common law principles of contract to Minker's claims would Appellant seeks to apply a “plain meaning” rule to violate the free exercise clause of the first amendment because interpreting the antidiscrimination provisions of the Book of it would interfere with church decisions concerning “whose Discipline (“Discipline”). We doubt that such a canon of voice speaks for the church.” Id. at 955. The district court construction is suitable to canon law. There is substantial concluded that appellant's suit failed to state a claim upon ambiguity about the Church's position on age discrimination which relief could be granted. at the time this case arose. The 1984–88 version of the Book of Discipline provided that appointments must take into Minker appeals on two grounds. First, he contends that the account the “unique needs of a charge ... and also the gifts and first amendment does not apply to his statutory claims. He graces of a particular pastor.” Discipline at ¶ 531. These gifts argues that the Church has no religious policy permitting age and graces include the pastor's “experience and continuing discrimination, and no religious belief can be implicated by education, professional experience, records of performance, the facts alleged. Second, he argues that the first amendment [and] age.” Id. at ¶ 531.2 (emphasis added). This suggests cannot bar enforcement of his private employment contract that, the nondiscrimination provision notwithstanding, the because the issue of breach does not implicate first Methodist Church does have an asserted ecclesiastical interest amendment principles. Alternatively, he contends that even if in considering age in appointing pastors. the facts might implicate religious beliefs, the district court's decision to dismiss was premature since he should be afforded We need not consider the precise contours of church policy, an opportunity to show that his contract claim does not create however, to reject Minker's claim that lay courts have an excessive entanglement with church religious policy. jurisdiction to hear his age discrimination claims. Rather, as the district court held, determination of “whose voice speaks for the church” is per se a religious matter. *1357 **317 699 F.Supp. at 955. We cannot imagine an area of inquiry I less suited to a temporal court for decision; evaluation of the “gifts and graces” of a minister must be left to ecclesiastical AGE DISCRIMINATION CLAIMS institutions. This is the view of every court that has been confronted by this genre of dispute. See, e.g., Rayburn v. [1] Minker argues that application of the ADEA or the General Conference of Seventh–Day Adventists, 772 F.2d Maryland age discrimination provision would not violate 1164 (4th Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. either the free exercise clause or the establishment clause of 3333, 92 L.Ed.2d 739 (1986). the first amendment. Because we find that maintenance of appellant's suit would violate the free exercise clause, we need In McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), not consider whether it would also violate the establishment cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 clause. (1972), the Fifth Circuit ruled that the free exercise clause precluded the application of Title VII to a minister's claim The first amendment provides that Congress may not interfere that her church had discriminated against her on the basis with the free exercise of religion. The free exercise clause bars of her gender. The court reasoned that since the minister is enforcement of a statute whose application would directly the “lifeblood” of the church, the assignment of a minister affect religious beliefs. Tilton v. Richardson, 403 U.S. 672, is inherently of prime ecclesiastical concern. It observed that 689, 91 S.Ct. 2091, 2101, 29 L.Ed.2d 790 (1970); see also applying Title VII to assignment decisions would involve the Wisconsin v. Yoder, 406 U.S. 205, 216, 92 S.Ct. 1526, 1533, court in substantive ecclesiastical matters and permit courts 32 L.Ed.2d 15 (1971) (refusing effect to a mandatory school to interfere with church administration. Merely maintaining attendance law as applied to Amish children). Appellant such a suit would produce “an investigation and review of ... argues that since the Church has already declared its matters of church administration and government ... [which] opposition to age discrimination in employment decisions in could only produce by its coercive effect the very opposite of the Book of Discipline, it cannot now claim that it has a that ... contemplated by the First Amendment.” 460 F.2d at religious belief supporting age discrimination. If no religious 558–60. beliefs are involved, he reasons, no first amendment rights are implicated. The plaintiff's claim in Simpson v. Wells Lamont Corporation, 494 F.2d 490 (5th Cir.1974), was almost identical to

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (1990) 51 Fair Empl.Prac.Cas. (BNA) 1372, 52 Empl. Prac. Dec. P 39,586... that raised here. The Fifth Circuit dismissed a Methodist [clergy] and who possess them ... although affecting civil pastor's suit, arising from his claim that he had been rights, are accepted in litigation before the secular courts as expelled from his parish because of his wife's race. The conclusive....”). plaintiff argued that consideration of his suit did not involve religious matters, because he was dismissed for reasons *1358 **318 The cases cited by appellant in which courts unrelated to religious belief or policy. He too raised the have applied employment statutes to employees of church antidiscrimination provision of the Book of Discipline, and affiliated institutions are inapposite. In EEOC v. Pacific the court expressly rejected this argument. It noted that Press Publishing Ass'n., 482 F.Supp. 1291 (N.D.Cal.1979), a there is no exception to the bar against interfering with secretary in a church-owned publishing house was permitted matters of church administration. 494 F.2d at 493; see also to maintain a sex discrimination action against her employer Rayburn v. General Conference of Seventh–Day Adventists, under Title VII. However, in that case, as in every other case 772 F.2d 1164 (4th Cir.1985), cert. denied, 478 U.S. 1020, cited by appellant, the court based its finding on the fact that 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986); Kedroff v. St. these employees were not “ministers.” The same “voice of the Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 church” concerns simply were not present. See, e.g., EEOC (1952). v. Mississippi College, 626 F.2d 477, 485 (5th Cir.1980) (distinguishing McClure because “faculty members are not As this court observed in King's Garden Inc. v. FCC, 498 F.2d intermediaries between a church and its congregation”). 51, 56 (D.C.Cir.1974), “[t]he Free Exercise Clause precludes governmental interference with ecclesiastical hierarchies, Finally, appellant urges that the “minister/nonminister” church administration, and appointment of clergy.” Not distinction is unworkable. Appellant notes that under this only may a church adopt its own idiosyncratic reasons distinction church secretaries and teachers are protected for appointing pastors, but also it “has a legitimate claim (EEOC v. Mississippi College, 626 F.2d 477 (5th Cir.1980), to autonomy in the elaboration and pursuit of that goal.” cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 Rayburn, 772 F.2d at 1171. We need not find that the factors (1981); EEOC v. Pacific Press Publishing Ass'n., 676 F.2d relied upon by the Church were independently ecclesiastical 1272 (9th Cir.1982)) but seminarians or theology professors in nature, only that they were related to a pastoral appointment at a sectarian university are not (EEOC v. Southwestern determination. See Granfield v. Catholic University of Baptist Theological Seminary, 651 F.2d 277 (5th Cir.1981), America, 530 F.2d 1035, 1047 (D.C.Cir.1976) (holding that cert. denied, 456 U.S. 905, 102 S.Ct. 1749, 72 L.Ed.2d the salary scale of priests in a church-related institution is an 161 (1982); Maguire v. Marquette University, 627 F.Supp. internal religious question). 1499 (E.D.Wisc.1986) aff'd on other grounds, 814 F.2d 1213 (7th Cir.1987)). These cases, he argues, illustrate that Minker argues that taken to its logical conclusion our view the ministerial functions test in fact encourages intrusive would create a first amendment prohibition against even inquiries into church policy by raising questions about the the most egregious human rights violations. He suggests, role of individual employees. We doubt the merits of this for example, that under our formulation courts would be argument, but in any event it is not appropriate to this case. prevented from enforcing homicide statutes against churches Appellant is clearly a minister and so we find this case does that selected their pastors by making them play russian not present an appropriate occasion to contemplate the merits roulette. of the “ministerial functions” test.

This hypothetical obviously distorts existing first amendment We affirm the district court's finding that application of doctrine. The Supreme Court has consistently recognized that ADEA or the Maryland statute to this case would violate the the religion clauses are subject to a balancing of interests free exercise clause of the first amendment. test. E.g., McDaniel v. Paty, 435 U.S. 618, 628 n. 8, 98 S.Ct. 1322, 1328 n. 8, 55 L.Ed.2d 593 (1978). The Court has also concluded that certain civil rights protected in secular settings II are not sufficiently compelling to overcome certain religious interests. Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16, 50 S.Ct. 5, 7, 74 L.Ed. 131 (1929) (“[Decisions of CONTRACT CLAIMS church authorities concerning] the essential qualifications of

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (1990) 51 Fair Empl.Prac.Cas. (BNA) 1372, 52 Empl. Prac. Dec. P 39,586...

The two contract claims of appellant raise different policy interpretation of the instruments of ownership would require concerns. Appellant first contends that the Book of Discipline the civil courts to resolve a religious controversy, then the creates an enforceable agreement that the Church will not court must defer to the resolution of the doctrinal issue by discriminate against him on the basis of age in making the authoritative ecclesiastical body.” Id. at 604, 99 S.Ct. at appointments. Second, he urges that the superintendent's 3026; see also Dowd v. Society of St. Columbans, 861 F.2d promise to provide him with a more suitable pastorship at the 761, 764 (1st Cir.1988); Hutchison v. Thomas, 789 F.2d 392, earliest possible time constitutes an enforceable employment 393 (6th Cir.), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 contract. L.Ed.2d 253 (1986) (dismissing a Methodist minister's claim that the church had violated his “contract” by improperly applying provisions of the Book of Discipline in discharging A. The Book of Discipline him because these involved “subjective judgments made by Section 529.1 of the Book of Discipline states that religious officials and bodies”). “appointments are to be made without regard to race, ethnic origin, sex, color, or age, except for the provisions of [2] The age discrimination passages of the Book of mandatory retirement.” Appellant urges that this provision Discipline are just such a provision. In determining whether forms a contract between himself and the Church which he the Church has discriminated on the basis of age, a court may enforce in a secular court. We have already pointed to would be required to consider the religious purpose of the the perils of appellant's efforts to give this provision only antidiscrimination provision and to define its limits for the its literal contours. Even assuming that this provision does Church. The scope of the Church's purported duty to not have some contractual aspects, this court could not interpret discriminate in its ministerial appointments will inevitably or enforce such a provision without running afoul of the first require interpretation of provisions in the Discipline that amendment. are highly subjective, spiritual, and ecclesiastical in nature. These duties are not necessarily identical to the government's As the Supreme Court noted in Jones v. Wolf, 443 U.S. 595, duty under Title VII, but may be informed by such religious 602, 99 S.Ct. 3020, 3024, 61 L.Ed.2d 775 (1979), “the [First] considerations as an evaluation of the “gifts and graces” Amendment requires that civil courts defer to the resolution of a minister. Unlike the property provisions at issue in of issues of religious doctrine or policy by the highest court of Jones, Minker's suit necessarily involves interpretation of a hierarchical church organization.” For this court to interpret the minister's occupational qualifications which requires an the antidiscrimination provision of the Book of Discipline “understanding of the genuine desire to embody and carry would require us to interpret or enforce matters of essential forth more effectively Christ's ministry.” Discipline at ¶ 445. religious dogma. We hold that the interpretation of the appointment and It is true that not all provisions of a religious constitution antidiscrimination provisions of the Book of Discipline is are immune from civil court interpretation. In Jones v. Wolf, inherently an ecclesiastical matter; it follows that this court the Court adopted the neutral principles test which permits a lacks jurisdiction to hear Minker's contract claim. court to interpret provisions of religious documents involving property rights and other nondoctrinal matters as long as the analysis can be done in purely secular terms. In doing so, B. Oral Contract the Court cited with approval a state court's *1359 **319 [3] Lastly, appellant argues that the first amendment cannot application of the Book of Discipline to a property dispute bar his action for breach of an oral employment contract. between a church and its congregation. 443 U.S. at 600–01, We find this contention compelling. The case arises on 99 S.Ct. at 3023–24 (citing Carnes v. Smith, 236 Ga. 30, dismissal for failure to state a claim; therefore we must 222 S.E.2d 322, cert. denied, 429 U.S. 868, 97 S.Ct. 180, 50 assume as true all allegations in Pastor Minker's complaint. L.Ed.2d 148 (1976)). Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969). We assume that the district The Jones court itself cautioned that not all provisions of a superintendent did in fact promise to provide appellant with church constitution are susceptible to neutral interpretation. a congregation more suited to his training and skills in It observed that even among property provisions “there exchange for his continued work at the Mount Ranier Church. may be cases where the ... constitution of a general church Such facts clearly would create a contractual relationship. incorporates religious concepts.... If in such a case the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (1990) 51 Fair Empl.Prac.Cas. (BNA) 1372, 52 Empl. Prac. Dec. P 39,586...

[4] A church is always free to burden its activities court “into a maelstrom of Church policy, administration, and voluntarily through contracts, and such contracts are fully governance”); Rayburn, 772 F.2d at 1171. enforceable in civil court. Watson v. Jones, 80 U.S. (13 Wall.) 679, 714, 20 L.Ed. 666 (1871). In Jones v. Wolf, Nevertheless, the first amendment does not immunize the supra, the Supreme Court specified that courts may always church from all temporal claims made against it. As we resolve contracts governing “the manner in which churches noted in Costello Publishing Co. v. Rotelle, 670 F.2d 1035 own property, hire employees, or purchase goods.” Id. at (D.C.Cir.1981), appellant need show only that some form 606, 99 S.Ct. at 3027. Even cases that rejected ministers' of inquiry is permissible and some form of remedy is discrimination claims have noted that churches nonetheless available to survive a motion to dismiss. In Costello, this “may be held liable upon their valid contracts.” Rayburn, court reversed a lower court grant of summary judgment for supra, 772 F.2d at 1171. the Roman Catholic Church in an antitrust case concerning the church's alleged efforts to discourage retailers from The Church seeks to distinguish these precedents on the purchasing a specific religious book. The court noted that ground that even proving the existence of a contract in summary judgment was inappropriate because the trial court this case would require the sort of inquiry into subjective, should at least consider the circumstances of the alleged spiritual, and ecclesiastical matters that the first amendment activity to determine whether a religious concern existed and prohibits. The Church asserts that Jones is inapposite because whether a nonintrusive remedy could be fashioned. Id. at 1050 it involved concrete matters that did not require a far-reaching n. 31. inquiry. It is true, as the Supreme Court noted in another *1360 **320 context, courts may not consider provisions We find that appellant should be allowed to demonstrate whose enforcement would require “a searching and therefore that he can prove his case without resorting to impermissible impermissible inquiry” into church doctrine. Serbian Eastern avenues of discovery or remedies. As a theoretical matter, the Orthodox Diocese v. Milivojevich, 426 U.S. 696, 723, 96 S.Ct. issue of breach of contract can be adduced by a fairly direct 2372, 2387, 49 L.Ed.2d 151 (1976). inquiry into whether appellant's superintendent promised him a more suitable congregation, whether appellant gave The Church asserts that this case would produce the types consideration in exchange for that promise, and whether such of court inquiries into administrative matters prohibited in congregations became available but were not offered to Pastor Rayburn. The Rayburn court held that entanglements might Minker. Similarly, Minker's injury can be remedied without result from a protracted legal procedure which might involve court oversight. Money damages alone would suffice since subpoenas, discovery, and other tools designed to probe Minker already has a new pastorship. Maintaining a suit, by the mind of the church. 772 F.2d at 1170–71. The Church itself, will not necessarily create an excessive entanglement. asserts that simply permitting a court to hear Minker's Furthermore, as the remedy would be limited to the award of contract claims might distort church appointment decisions— money damages, we see no potential for distortion of church causing churches to make only those choices that avoid the appointment decisions from requiring that the Church not appearance of legal impropriety. make empty, misleading promises to its clergy.

We acknowledge that the contract alleged by Minker It could turn out that in attempting to prove his case, appellant threatens to touch the core of the rights protected by the will be forced to inquire into matters of ecclesiastical policy free exercise clause. See McClure v. Salvation Army, 460 even as to his contract claim. Of course, in that situation, F.2d 553, 558–59 (5th Cir.1972) (“The relationship between a court may grant summary judgment on the ground that an organized church and its ministers is its lifeblood. The appellant has not proved his case and pursuing the matter minister is the chief instrument by which the church seeks further would create an excessive entanglement with religion. to fulfill its purpose.”). We also agree that any inquiry On the other hand, it may turn out that the potentially into the Church's reasons for asserting that Minker was mischievous aspects of Minker's claim are not contested not suited for a particular pastorship would constitute an by the Church or are subject to entirely neutral methods excessive entanglement in its affairs. See Natal v. Christian of proof. The speculative nature of our discussion here and Missionary Alliance, 878 F.2d 1575 (1st Cir.1989) demonstrates why it is premature to foreclose appellant's (inquiry into reasons for minister's discharge would plunge contract claim. Once evidence is offered, the district court will be in a position to control the case so as to protect

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (1990) 51 Fair Empl.Prac.Cas. (BNA) 1372, 52 Empl. Prac. Dec. P 39,586... against any impermissible entanglements. Thus, while the first amendment forecloses any inquiry into the Church's CONCLUSION *1361 **321 assessment of Minker's suitability for a pastorship, even for the purpose of showing it to be pretextual, The decision to appoint a minister is uniquely within a it does not prevent the district court from determining whether church's ecclesiastical discretion. We find the district court the contract alleged by Minker in fact exists. Catholic High properly concluded that it may not interpret a church's School Ass'n v. Culvert, 753 F.2d 1161, 1168 (2d Cir.1985) spiritual policies without interfering with the free exercise of (first amendment prohibition of state board's ability to inquire religion. But the first amendment does not afford defenses into nature of religious motives does not preclude it from against promises made and contracts formed. A church, like asserting jurisdiction). For this reason, we find that appellant's any other employer, is bound to perform its promissory oral contract claim cannot be totally foreclosed on a motion obligations in accord with contract law. Pastor Minker is to dismiss. entitled to rely upon his employer's representations and to enforce them in a secular court. It is possible that the first amendment's prohibition against proceedings that III would create excessive entanglements with religious beliefs will make appellant's task at trial more difficult. But these difficulties do not eliminate appellant's right to enforce his FEDERAL JURISDICTION employment contract. Our holding raises a new jurisdictional issue on remand. Courts must always be wary of efforts to invoke their Initially, federal jurisdiction over appellant's state law claims temporal powers in place of churchly powers. Such efforts was proper under the district court's pendent federal question are inconsistent with the free exercise of religion that the first jurisdiction, 28 U.S.C. § 1331, or jurisdiction under federal amendment asserts to be inviolate. But the line between such civil rights statutes, 28 U.S.C. § 1343. Having properly proscribed lawsuits and legitimate claims for commercial dismissed appellant's federal age discrimination claims before obligations of a church is a thin one. It is that thin line which trial, the district court may no longer assert pendent we direct the district court to find and hew to in this case. jurisdiction over appellant's state contract claims. United Appellant is entitled to prove up his claim of breach of an oral Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, contract to the extent that he can divine a course clear of the 1139, 16 L.Ed.2d 218 (1966); Sanchez–Espinoza v. Reagan, Church's ecclesiastical domain. For such limited purposes, the 770 F.2d 202, 210 (D.C.Cir.1985). case is Remanded. If jurisdiction exists at all, it must lie on the basis of diversity of citizenship, 28 U.S.C. § 1332. Appellant alleges that he was “residing in Virginia” at the time he filed his complaint GESELL, District Judge, concurring in the result. and that appellee is incorporated in the State of Maryland. I concur in the result and respectfully note my concerns. We note that the complaint does not specifically allege The opinion deals comprehensively with a difficult case that Minker is a “citizen” of Virginia, and to that extent, and an even more challenging problem. It seeks without the claim of diversity jurisdiction is technically defective. benefit of a factual record to balance our deep-seated respect Whitelock v. Leatherman, 460 F.2d 507, 514 n. 14 (10th for First Amendment religious protection against the virus Cir.1972). On remand, the district court must determine for of discrimination based on age, *1362 **322 sex, race itself whether diversity of citizenship exists before addressing and national origin which appears in every aspect of our the substantive contract claims presented. National Farmers society. General propositions are stated in a manner that may Union Property & Gas Co. v. Fisher, 284 F.2d 421, 423 appear to lay down firm guidance for subsequent religious (8th Cir.1960). If the district court finds federal jurisdiction discrimination cases. In my opinion this is unnecessary. In lacking, it may either dismiss or exercise its authority under the future there may well be some who seek to avoid scrutiny 28 U.S.C. § 1631 to transfer this case to a state court in which of a primary discriminatory objective in the selection or suit might more properly have been brought. creation of religious officials by exploiting a marginal First Amendment religious claim. I believe the wiser course would be to allow the law to evolve in this difficult area case- by-case, aided, wherever necessary, by meaningful records

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (1990) 51 Fair Empl.Prac.Cas. (BNA) 1372, 52 Empl. Prac. Dec. P 39,586... developed on factual motions or trial. It is too early to All Citations anticipate whether some of the absolutes announced in the opinion will withstand the test of time or be considered 894 F.2d 1354, 51 Fair Empl.Prac.Cas. (BNA) 1372, 52 appropriate under all circumstances. Empl. Prac. Dec. P 39,586, 282 U.S.App.D.C. 314, 58 USLW 2437

by the Diocese and was a teacher in the Notre Only the Westlaw citation is currently available. Dame School at the end of the 2010–2011 school year. At that time, the Diocese announced that United States District Court, Notre Dame School and two other Catholic schools W.D. Pennsylvania. in the Shenango Valley area were closing, and Elaine HOUGH, Marlene Misavage, and Gail Shenango Valley Catholic School System was be- Smith, Plaintiffs, ing formed. Each of the three Plaintiffs was invited v. to apply and interview for positions within the ROMAN CATHOLIC DIOCESE OF ERIE, and newly consolidated school system. Each did so and Shenango Valley Catholic School System, Defend- each was not rehired. Instead, it is alleged that De- ants. fendants hired less qualified and significantly Civil Action No. 12–253Erie. younger persons. Signed March 4, 2014. Defendants have filed a motion to dismiss un- Colleen Ramage Johnston, Nikki Velisaris Lykos, der Rule 12(b)(6) and/or for summary judgment un- Rothman Gordon, P.C., Pittsburgh, PA, for der Rule 56, arguing that the ADEA claims are sub- Plaintiffs. ject to the ministerial exception as set forth in Hosanna– Tabor Evangelical Lutheran Church & Arthur D. Martinucci, Quinn, Buseck, Leemhuis, School v. EEOC, ––– U.S. ––––, 132 S.Ct. 694, 181 Toohey & Kroto, Inc., Erie, PA, for Defendants. L.Ed.2d 650 (2012). ECF No. 8. Plaintiffs have filed a brief in opposition. ECF No. 13. There has FN1 been no discovery in this case. This Court heard or- MEMORANDUM OPINION AND ORDER al argument on the motion on January 22, 2014.

FN1. In accordance with the provisions of These issues are ripe for disposition by this Court. 28 U.S.C. § 636(c)(1), in April of 2013 the Because the parties have submitted affidavits parties voluntarily consented to have a both in support of and in opposition to the pending United States Magistrate Judge conduct motion, this Court will treat the motion as a motion proceedings in this case, including the for summary judgment pursuant to Federal Rule of entry of a final judgment. See ECF Nos. Civil Procedure 56. See Burns v. Harris County 11, 12. Bail Bond Bd., 139 F.3d 513, 517 (5th Cir.1998) ( SUSAN PARADISE BAXTER, United States Ma- “When matters outside the pleadings are presented gistrate Judge. to and not excluded by the district court, the district *1 Plaintiffs filed this civil action under the court must convert a motion to dismiss into a mo- Age Discrimination in Employment Act and tion for summary judgment.”); Greer v. Smith, 2003 Pennsylvania Human Relations Act on October 18, WL 1090708, *1 (3d Cir. (Pa.) March 10, 2003) 2012. Plaintiffs Elaine Hough, Marlene Misavage, (“the District Court considered material outside of and Gail Smith allege that they are former employ- the pleadings and, therefore, should have converted ees of the Roman Catholic Diocese of Erie who the motion for dismissal to a summary judgment were discriminated against on the basis of their age. motion, allowing the plaintiff an opportunity for appropriate discovery and a reasonable opportunity to According to the Amended Complaint, each of present all material made pertinent to the motion.”). the three Plaintiffs was employed for over 30 years Federal Rule of Civil Procedure 56(a) provides

that summary judgment shall be granted if the non-moving party. Matsushita Elec. Indus. Co. v. “movant shows that there is no genuine dispute as Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. to any material fact and the movant is entitled to 1348, 89 L.Ed.2d 538 (1986). See also El v. judgment as a matter of law.” The moving party has SEPTA, 479 F.3d 232, 238 (3d Cir.2007). the initial burden of proving to the district court the absence of evidence supporting the non-moving FN2. A material fact is a fact that “might party's claims. Celotex Corp. v. Catrett, 477 U.S. affect the outcome of the suit under the 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); governing law.” Anderson v. Liberty Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir.2007); Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. UPMC Health System v. Metropolitan Life Ins. Co., 2505, 91 L.Ed.2d 202 (1986). For an issue 391 F.3d 497, 502 (3d Cir.2004). to be genuine, “all that is required is that sufficient evidence supporting the claimed The burden then shifts to the non-movant to factual dispute be shown to require a jury come forward with specific facts showing a genuine or judge to resolve the parties' differing issue for trial. Fed.R.Civ.P. 56(e); Williams v. Bor- versions of the truth at trial.” Id. at 249. “If ough of West Chester, Pa., 891 F.2d 458, 460–461 the non-moving party bears the burden of (3d Cir.1989) (the non-movant must present affirm- persuasion at trial, ‘the moving party may ative evidence-more than a scintilla but less than a meet its burden on summary judgment by preponderance-which supports each element of his showing that the nonmoving party's evid- claim to defeat a properly presented motion for ence is insufficient to carry that burden.’ ” summary judgment). The non-moving party must Kaucher v. County of Bucks, 455 F.3d 418, go beyond the pleadings and show specific facts by 423 (3d Cir.2006) quoting Wetzel v. Tuck- affidavit or by information contained in the filed er, 139 F.3d 380, 383 n. 2 (3d Cir.1998). documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving Defendants move for summary judgment on the elements essential to his claim. Celotex, 477 U.S. sole basis that Plaintiffs' ADEA claims are subject at 322. See also Saldana v. Kmart Corp., 260 F.3d to the ministerial exception as set forth by the Su- 228, 232 (3d Cir.2001). The non-moving party preme Court in Hosanna – Tabor Evangelical “must present more than just bare assertions, con- Lutheran Church & School v. EEOC, –––U.S. clusory allegations or suspicions to show the exist- ––––, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012). The ence of a genuine issue.” Garcia v. Kimmell, 2010 ministerial exception arises from the conflict WL 2089639, at * 1 (3d Cir.2010) quoting Podob- between federal employment discrimination statutes nik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d and constitutional principles of church autonomy Cir.2005). guaranteed by the First Amendment's Religion Clauses. The Circuit Courts of Appeal, including *2 When considering a motion for summary the Third Circuit, have long recognized the judgment, the court is not permitted to weigh the “ministerial exception” in employment discrimina- FN3 evidence or to make credibility determinations, but tion cases. See Petruska v. Gannon University, is limited to deciding whether there are any dis- 462 F.3d 294 (3d Cir.2006). Grounded in the Reli- puted issues and, if there are, whether they are both gion Clauses of the First Amendment, the ministeri- FN2 genuine and material. Anderson v. Liberty al exception precludes federal claims of employ- Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 ment discrimination brought by ministers against a L.Ed.2d 202 (1986). The court must consider the religious institution. evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the FN3. Prior to the decision in Hosanna – Tabor, the First, Third, Tenth, and Ninth

Circuits treated the ministerial exception as ial to determining whether the ministerial an affirmative defense under Federal Rule exception applies in the first instance. Id. of Civil Procedure 12(b)(6), while the at 709 (“The purpose of the exception is Sixth and Seventh Circuits treated it as a not to safeguard a church's decision to fire jurisdictional defect under Rule 12(b)(1), a minister only when it is made for a reli- and the Fifth and Eleventh Circuits treated gious reason. The exception instead en- it as permitting courts to construe anti- sures that the authority to select and con- discrimination laws so as not to apply to trol who will minister to the faithful—a claims between ministers and their matter ‘strictly ecclesiastical’—is the churches. See Cannata v. Catholic Diocese church's alone.”). of Austin, 700 F.3d 169, 171 n. 2 (5 th Cir.2012) citing EEOC v. Hosanna–Tabor The Hosanna–Tabor Court declined to “adopt a Evangelical Lutheran Church & Sch., 597 rigid formula for deciding when an employee quali- F.3d 769, 775 (6 th Cir.2010), rev'd ––– fies as a minister” noting that its ruling was limited U.S. ––––, 132 S.Ct. 694, 181 L.Ed.2d 650 to the specific facts of the case. Id. at 707 (“It is (2012). The Supreme Court resolved this enough for us to conclude, in this our first case in- split of authority holding that the ministeri- volving the ministerial exception, that the exception al exception “operates as an affirmative covers Perich, given all the circumstances of her defense to an otherwise cognizable claim, employment.”). Of course, the ruling that Cheryl not as a jurisdictional bar.” Hosanna – Perich's position as a “called” teacher barred a dis- Tabor, ––– U.S. at ––––, 132 S.Ct. at 709 crimination suit against the church that terminated n. 4. her employment may be analyzed for factors used by the high court to make this determination. The U.S. Supreme Court first considered the ministerial exception in Hosanna– Tabor formally This is precisely what the district court did in recognizing this exception to employment discrim- Dias v. Archdiocese of Cincinnati, 2012 WL ination statutes. ––– U.S. ––––, 132 S.Ct. 694, 181 1068165 (S.D.Ohio 2012). Its review is instructive: L.Ed.2d 650. The Court determined that the excep- *3 The [Supreme] Court identified facts related tion “precludes application of such legislation to to Perich's employment and explained how those claims concerning the employment relationship facts contributed to a conclusion that she was a between a religious institution and its ministers” ( ministerial employee. The Court noted that the id. at 705) and further opined that: school “held Perich out as a minister,” that it is- “By imposing an unwanted minister, the state in- sued her a “diploma of vocation” according her fringes the Free Exercise Clause, which protects a the title “Minister of Religion, Commissioned.” religious group's right to shape its own faith and Hosanna–Tabor, 132 S.Ct. at 707. Perich “was mission through its appointments. According the tasked with performing that office ‘according to state the power to determine which individuals the Word of God and the confessional standards will minister to the faithful also violates the Es- of the Evangelical Lutheran Church as drawn tablishment Clause, which prohibits government from the Sacred Scriptures.’ ” Id. The church, involvement in such ecclesiastical decisions.” Id. “prayed that God ‘bless [her] ministrations to the FN4 at 706. glory of His holy name.” Id. In a supplement to the diploma, the congregation undertook to periodically review Perich's “skills in ministry” and FN4. The reasons underlying a church's “ministerial responsibilities,” and to provide for employment decisions are wholly immater- her “continuing education as a professional per-

son in the ministry of the Gospel.” Id. fendants believe that the affidavits of Father Nich- olas Rouch, Vicar for Education for Defendant Dio- The Court also noted that Perich's “title as a min- cese of Erie, are all the evidence needed for the ap- ister reflected a significant degree of religious plication of the exception. ECF No. 8–5; ECF No. training, followed by a formal process of com- 18. missioning.” Hosanna–Tabor, 132 S.Ct. at 707. She had to complete eight college-level courses *4 The Rouch Affidavits testify that the obliga- in subjects such as biblical interpretation, church tions of teachers in Catholic schools in the Diocese, doctrine, and the ministry of the Lutheran teach- regardless of the subject matter or grade level, gen- er. Id. After finishing the schooling, she had to erally include: recognizing the religious nature of “obtain the endorsement of her local Synod dis- the school and understanding their obligation to ob- trict by submitting a petition that contained her serve and support the philosophy of Catholic educa- academic transcripts, letters of recommendation, tion and to recognize and support the inherent Cath- personal statement, and written answers to vari- olic nature of the schools; fulfilling the require- ous ministry-related questions,” and then pass an ments of the Spiritual Journey for Catechists for oral examination at a Lutheran college. Id. elementary and middle school teachers in all Perich, as a result of her training and commis- schools within the Diocese of Erie; and adhering to sion, was granted tenure, and “her call could be the official teachings, doctrines and laws of the Ro- rescinded only upon a supermajority vote of the man Catholic Church. Id. Further, Father Rouch ex- congregation-a protection designed to allow her plains: to ‘preach the Word of God boldly.’ ” Id. “Catholic schools and their teachers strive to re- Finally, the Court reviewed Perich's job duties, late all human culture eventually to the news of noting that she taught her students religion four salvation, so that life of faith will illuminate the days a week, and led them in prayer three times a knowledge that the students gain of the world, of day. Id. “Once a week, she took her students to a life and of mankind. Accordingly, instruction in school-wide chapel service, and-about twice a religious truth and values is an integral part of the year-she took her turn in leading it, choosing the school program. It is not one more subject along liturgy, selecting the hymns, and delivering a side the rest, but instead it is perceived and func- short message based on verses from the Bible .” tions as the underlying reality in which the stu- Id. During her last year of employment, Perich dent's experience of learning and living achieve also led her fourth graders in a brief devotional their coherence and their deepest meaning.” exercise each morning. Id. Considering all of the above, the formal title given to Perich by the ECF No. 8–5, ¶ 5. church, the substance reflected in that title, her Defendants also invoke “history,” arguing that own use of that title, and the important religious the “teachings and policies of the Roman Catholic functions she performed for the church, the Court Church reflect the clear intention on the part of concluded she was a minister covered by the min- (and practice by) the Roman Catholic Church to isterial exception. Id. treat teachers in Catholic schools, including the Id. at *4–5. Plaintiffs, as ministers of the faith, regardless of grade level, and regardless of subject matter. This is The difference between such an analysis and not a position lately arrived at, as reflected by the the case here is that Defendants do not provide such official writings of the Roman Catholic Church broad evidence for this type of review. Not only has over at least the past 50 years.” ECF No. 9, page 9. full discovery not been had, but importantly, De-

Rather than a Hosanna–Tabor –type analysis ture upon a more fully developed factual record. based on a well-developed record with evidence of FN5 Plaintiffs' job duties and functions, as well as An appropriate Order follows. the duties currently performed by those who were ORDER hired in their stead, this Court is being asked to rule AND NOW, this 4th day of March, 2014; in Defendants' favor because the Vicar of Education testifies to the fact that all teachers are considered IT IS HEREBY ORDERED that Defendants' to be ministers of the faith by the Diocese. Al- motion to dismiss and/or for summary judgment though the Supreme Court refused to provide a [ECF No. 8] is DENIED. bright line test for a determination of when someone is accorded ministerial status, Defendants' This Court will issue a separate Order regard- argument-that all teachers are considered to be min- ing an Initial Scheduling Conference. isters by Defendants-was not enough, in and of itself, for the high court in Hosanna–Tabor. W.D.Pa.,2014. Hough v. Roman Catholic Diocese of Erie FN5. Some of this information was con- Slip Copy, 2014 WL 834473 (W.D.Pa.), 121 Fair tained in Plaintiffs' opposing affidavits. Empl.Prac.Cas. (BNA) 1814

In his concurring opinion, Justice Thomas said END OF DOCUMENT as much when he posited that he was writing separately because he believed that such a good faith as- sertion should be enough: “The Court thoroughly sets forth the facts that lead to its conclusion that Cheryl Perich was one of Hosanna– Tabor's ministers, and I agree that these facts amply demonstrate Perich's ministerial role. But, the evidence demonstrates that Hosanna– Tabor sincerely considered Perich a minister. That would be sufficient for me to conclude that Perich's suit is properly barred by the ministerial exception.” Hosanna – Tabor, 132 S.Ct. at 711. This “sincere belief by the employer was not enough for the majority, despite Justice Thomas' urging, and cannot be the sole basis for the application of the ministerial exception by this Court here.

*5 While the Rouch Affidavits are evidence of the Diocese's view that Plaintiffs' duties “reflected a role in conveying the Church's message and carrying out its mission” ( Hosanna–Tabor, 132 S.Ct. at 707), they are not enough for summary judgment as a matter of law. Discovery is needed to provide a fuller picture for this multi-factorial analysis. Upon the limited record before this Court, Defendants' motion will be denied; however, the application of the ministerial exception may be revisited in the fu-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 1 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694)

Justice Alito filed a concurring opinion in Supreme Court of the United States which Justice Kagan joined. HOSANNA–TABOR EVANGELICAL LUTHER- AN CHURCH AND SCHOOL, Petitioner West Headnotes v. [1] Constitutional Law 92 1340(1) EQUAL EMPLOYMENT OPPORTUNITY COM- MISSION et al. 92 Constitutional Law 92XIII Freedom of Religion and Conscience No. 10–553. 92XIII(B) Particular Issues and Applications Argued Oct. 5, 2011. 92k1327 Religious Organizations in Gen- Decided Jan. 11, 2012. eral Background: Equal Employment Opportunity 92k1340 Clergy; Ministers Commission (EEOC) brought action against mem- 92k1340(1) k. In general. Most ber congregation of Lutheran Church, alleging that Cited Cases “called” teacher at its school had been fired in re- By imposing an unwanted minister, the state taliation for threatening to file an Americans with infringes the Free Exercise Clause, which protects a Disabilities Act (ADA) lawsuit. Teacher inter- religious group's right to shape its own faith and vened, claiming unlawful retaliation under both the mission through its appointments; according the ADA and state law. The United States District state the power to determine which individuals will Court for the Eastern District of Michigan, Patrick minister to the faithful also violates the Establish- J. Duggan,J.,grantedcongregation'smotionfor ment Clause, which prohibits government involve- summary judgment, 582 F.Supp.2d 881, and denied ment in such ecclesiastical decisions. U.S.C.A. reconsideration, 2008 WL 5111861. EEOC and Const.Amend. 1. teacher appealed. The United States Court of Ap- [2] Constitutional Law 92 1440 peals for the Sixth Circuit, Clay,CircuitJudge,597 F.3d 769, vacated and remanded. Certiorari was 92 Constitutional Law granted. 92XVI Freedom of Association 92k1440 k. In general. Most Cited Cases Holdings: The Supreme Court, Chief Justice The right to freedom of association is a right Roberts,heldthat: enjoyed by religious and secular groups alike. (1) “called” teacher was a “minister” covered by U.S.C.A. Const.Amend. 1. the ministerial exception, grounded in Religion Clauses of the First Amendment, and [3] Civil Rights 78 1114 (2) ministerial exception operated as an affirmative defense, not a jurisdictional bar, abrogating Hollins 78 Civil Rights v. Methodist Healthcare, Inc.,474F.3d223and 78II Employment Practices Tomic v. Catholic Diocese of Peoria,442F.3d 78k1108 Employers and Employees Affected 1036. 78k1114 k. Exemptions. Most Cited Cases

Reversed. Constitutional Law 92 1368(1)

92 Constitutional Law Justice Thomas filed a concurring opinion.

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92XIII Freedom of Religion and Conscience 92 Constitutional Law 92XIII(B) Particular Issues and Applications 92XIII Freedom of Religion and Conscience 92k1362 Private Education 92XIII(B) Particular Issues and Applications 92k1368 Employees 92k1327 Religious Organizations in Gen- 92k1368(1) k. In general. Most eral Cited Cases 92k1340 Clergy; Ministers “Called” teacher of school operated by member 92k1340(2) k. Ministerial exception congregation of the Lutheran Church was a in general. Most Cited Cases “minister” covered by the ministerial exception, Though relevant in determining whether a com- grounded in Religion Clauses of the First Amend- missioned minister is covered under the ministerial ment, and thus ministerial exception barred teach- exception, grounded in Religion Clauses of the er's employment discrimination claim against her First Amendment, it cannot be dispositive that oth- religious employer; congregation issued teacher a ers not formally recognized as ministers by the “diploma of vocation” according her the title church perform the same functions, particularly “Minister of Religion, Commissioned,” teacher's when they do so only because commissioned minis- title as minister reflected a significant degree of re- ters are unavailable. U.S.C.A. Const.Amend. 1. ligious training followed by a formal process of commissioning, teacher held herself out as a minis- [6] Constitutional Law 92 1340(2) ter by accepting the formal call to religious service 92 Constitutional Law and by claiming a special housing allowance on her 92XIII Freedom of Religion and Conscience taxes, and her job duties reflected a role in convey- 92XIII(B) Particular Issues and Applications ing the Church's message and carrying out its mis- 92k1327 Religious Organizations in Gen- sion. U.S.C.A. Const.Amend. 1. eral [4] Constitutional Law 92 1340(2) 92k1340 Clergy; Ministers 92k1340(2) k. Ministerial exception 92 Constitutional Law in general. Most Cited Cases 92XIII Freedom of Religion and Conscience The amount of time an employee spends on 92XIII(B) Particular Issues and Applications particular activities is relevant in assessing that em- 92k1327 Religious Organizations in Gen- ployee's status as a minister under the ministerial eral exception, grounded in Religion Clauses of the 92k1340 Clergy; Ministers First Amendment, but that factor cannot be con- 92k1340(2) k. Ministerial exception sidered in isolation, without regard to the nature of in general. Most Cited Cases the religious functions performed and other consid- Although a title of a commissioned minister, by erations. U.S.C.A. Const.Amend. 1. itself, does not automatically ensure coverage under the ministerial exception, grounded in Religion [7] Constitutional Law 92 1340(2) Clauses of the First Amendment, the fact that an 92 Constitutional Law employee has been ordained or commissioned as a 92XIII Freedom of Religion and Conscience minister is surely relevant, as is the fact that signi- 92XIII(B) Particular Issues and Applications ficant religious training and a recognized religious 92k1327 Religious Organizations in Gen- mission underlie the description of the employee's eral position. U.S.C.A. Const.Amend. 1. 92k1340 Clergy; Ministers [5] Constitutional Law 92 1340(2) 92k1340(2) k. Ministerial exception in general. Most Cited Cases

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The purpose of the ministerial exception, complete certain academic requirements, including grounded in Religion Clauses of the First Amend- acourseoftheologicalstudy.Oncecalled,ateacher ment, is not to safeguard a church's decision to fire receives the formal title “Minister of Religion, aministeronlywhenitismadeforareligiousreas- Commissioned.” *696 “Lay” teachers, by contrast, on; the exception instead ensures that the authority are not required to be trained by the Synod or even to select and control who will minister to the faith- to be Lutheran. Although lay and called teachers at ful, a matter strictly ecclesiastical, is the church's Hosanna–Tabor generally performed the same du- alone. U.S.C.A. Const.Amend. 1. ties, lay teachers were hired only when called teachers were unavailable. [8] Constitutional Law 92 1340(2) After respondent Cheryl Perich completed the 92 Constitutional Law required training, Hosanna–Tabor asked her to be- 92XIII Freedom of Religion and Conscience come a called teacher. Perich accepted the call and 92XIII(B) Particular Issues and Applications was designated a commissioned minister. In addi- 92k1327 Religious Organizations in Gen- tion to teaching secular subjects, Perich taught a re- eral ligion class, led her students in daily prayer and de- 92k1340 Clergy; Ministers votional exercises, and took her students to a 92k1340(2) k. Ministerial exception weekly school-wide chapel service. Perich led the in general. Most Cited Cases chapel service herself about twice a year. Ministerial exception, grounded in Religion Clauses of the First Amendment, operates as an af- Perich developed narcolepsy and began the firmative defense to an otherwise cognizable claim, 2004–2005 school year on disability leave. In Janu- not a jurisdictional bar; issue presented by the ex- ary 2005, she notified the school principal that she ception is whether the allegations the plaintiff would be able to report to work in February. The makes entitle him to relief, not whether the court principal responded that the school had already has power to hear the case; abrogating Hollins v. contracted with a lay teacher to fill Perich's position Methodist Healthcare, Inc.,474F.3d223and Tom- for the remainder of the school year. The principal ic v. Catholic Diocese of Peoria,442F.3d1036. also expressed concern that Perich was not yet U.S.C.A. Const.Amend. 1. ready to return to the classroom. The congregation FN* subsequently offered to pay a portion of Perich's *695 Syllabus health insurance premiums in exchange for her resignation as a called teacher. Perich refused to FN* The syllabus constitutes no part of the resign. In February, Perich presented herself at the opinion of the Court but has been prepared school and refused to leave until she received writ- by the Reporter of Decisions for the con- ten documentation that she had reported to work. venience of the reader. See United States v. The principal later called Perich and told her that Detroit Timber & Lumber Co., 200 U.S. she would likely be fired. Perich responded that she 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. had spoken with an attorney and intended to assert Petitioner Hosanna–Tabor Evangelical Luther- her legal rights. In a subsequent letter, the chairman an Church and School is a member congregation of of the school board advised Perich that the congreg- the Lutheran Church–Missouri Synod. The Synod ation would consider whether to rescind her call at classifies its school teachers into two categories: its next meeting. As grounds for termination, the “called” and “lay.” “Called” teachers are regarded letter cited Perich's “insubordination and disruptive as having been called to their vocation by God. To behavior,” as well as the damage she had done to be eligible to be considered “called,” a teacher must her “working relationship” with the school by

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“threatening to take legal action.” The congregation over church property. This Court's decisions in that voted to rescind Perich's call, and Hosanna–Tabor area confirm that it is impermissible for the govern- sent her a letter of termination. ment to contradict a church's determination of who can act as its ministers. See Watson v. Jones, 13 Perich filed a charge with the Equal Employ- Wall. 679, 20 L.Ed. 666; Kedroff v. Saint Nicholas ment Opportunity Commission, claiming that her Cathedral of Russian Orthodox Church in North employment had been terminated in violation of the America, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120; Americans with Disabilities Act. The EEOC Serbian Eastern Orthodox Diocese for United brought suit against Hosanna–Tabor, alleging that States and Canada v. Milivojevich, 426 U.S. 696, Perich had been fired in retaliation for threatening 96 S.Ct. 2372, 49 L.Ed.2d 151. Pp. 704 – 705. to file an ADA lawsuit. Perich intervened in the litigation. Invoking what is known as the “ministerial (c) Since the passage of Title VII of the Civil exception,” Hosanna–Tabor argued that the suit Rights Act of 1964 and other employment discrim- was barred by the First Amendment because the ination laws, the Courts of Appeals have uniformly claims concerned the employment relationship recognized the existence of a “ministerial excep- between a religious institution and one of its minis- tion,” grounded in the First Amendment, that pre- ters. The District Court agreed and granted sum- cludes application of such legislation to claims con- mary judgment in Hosanna–Tabor's favor. The cerning the employment relationship between a re- Sixth Circuit vacated and remanded. It recognized ligious institution and its ministers. The Court the existence of a ministerial exception rooted in agrees that there is such a ministerial exception. the First Amendment, but concluded that Perich did Requiring a church to accept or retain an unwanted not qualify as a “minister” under the exception. minister, or punishing a church for failing to do so, intrudes upon more than a mere employment de- Held : cision. Such action interferes with the internal governance of the church, depriving the church of con- 1. The Establishment and Free Exercise trol over the selection of those who will personify Clauses of the First Amendment bar suits brought its beliefs. By imposing an unwanted minister, the on behalf of ministers against their churches, claim- state infringes the Free Exercise Clause, which pro- ing termination in violation of employment dis- tects a religious group's right to shape its own faith crimination laws. Pp. 702 – 707. and mission through its appointments. According (a) The First Amendment provides, in part, that the state the power to determine which individuals “Congress shall make no law respecting an estab- will minister to the faithful also violates the Estab- lishment of religion, or prohibiting the free exercise lishment Clause, which prohibits government in- thereof.” Familiar with life under the established volvement in such ecclesiastical decisions. Church of England, the founding generation sought The EEOC and Perich contend that religious to foreclose the possibility of a national church. By organizations can defend against employment dis- forbidding the “establishment of religion” and guar- crimination claims by invoking their First Amend- anteeing the “free exercise thereof,” the Religion ment right to freedom of association. They thus see Clauses*697 ensured that the new Federal Govern- no need—and no basis—for a special rule for min- ment—unlike the English Crown—would have no isters grounded in the Religion Clauses themselves. role in filling ecclesiastical offices. Pp. 702 – 704. Their position, however, is hard to square with the (b) This Court first considered the issue of gov- text of the First Amendment itself, which gives spe- ernment interference with a church's ability to se- cial solicitude to the rights of religious organiza- lect its own ministers in the context of disputes tions. The Court cannot accept the remarkable view

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) that the Religion Clauses have nothing to say about surely relevant, as is the fact that significant reli- areligiousorganization'sfreedomtoselectitsown gious training and a recognized religious mission ministers. underlie the description of the employee's position. Second, the Sixth Circuit gave too much weight to The EEOC and Perich also contend that Em- the fact that lay teachers at the school performed ployment Div., Dept. of Human Resources of Ore. the same religious duties as Perich. Though relev- v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 ant, it cannot be dispositive that others not formally L.Ed.2d 876, precludes recognition of a ministerial recognized as ministers by the church perform the exception. But Smith involved government regula- same functions—particularly when, as here, they tion of only outward physical acts. The present did so only because commissioned ministers were case, in contrast, concerns government interference unavailable. Third, the Sixth Circuit placed too with an internal church decision that affects the much emphasis on Perich's performance of secular faith and mission of the church itself. Pp. 705 – duties. Although the amount of time an employee 707. spends on particular activities is relevant in assessing that employee's status, that factor cannot be 2. Because Perich was a minister within the considered in isolation, without regard to the other meaning of the ministerial exception, the First considerations discussed above. Pp. 707 – 710. Amendment requires dismissal of this employment discrimination suit against her religious employer. (b) Because Perich was a minister for purposes Pp. 707 – 710. of the exception, this suit must be dismissed. An order reinstating Perich as a called teacher would (a) The ministerial exception is not limited to have plainly violated the Church's freedom under the head of a religious congregation. The Court, the Religion Clauses to select its own ministers. however, does not adopt a rigid formula for decid- Though Perich no longer seeks reinstatement, she ing when an employee qualifies as a minister. Here, continues to seek frontpay, backpay, compensatory it is enough to conclude that the exception covers and punitive damages, and attorney's fees. An Perich, given all the circumstances of her employ- award of such relief would operate as a penalty on ment. Hosanna–Tabor held her out as a minister, the Church for terminating an unwanted minister, with a role distinct from that of most of its mem- and would be no less prohibited by the First bers. That *698 title represented a significant de- Amendment than an order overturning the termina- gree of religious training followed by a formal pro- tion. Such relief would depend on a determination cess of commissioning. Perich also held herself out that Hosanna–Tabor was wrong to have relieved as a minister by, for example, accepting the formal Perich of her position, and it is precisely such a rul- call to religious service. And her job duties reflec- ing that is barred by the ministerial exception. ted a role in conveying the Church's message and carrying out its mission: As a source of religious in- Any suggestion that Hosanna–Tabor's asserted struction, Perich played an important part in trans- religious reason for firing Perich was pretextual mitting the Lutheran faith. misses the point of the ministerial exception. The purpose of the exception is not to safeguard a In concluding that Perich was not a minister church's decision to fire a minister only when it is under the exception, the Sixth Circuit committed made for a religious reason. The exception instead three errors. First, it failed to see any relevance in ensures that the authority to select and control who the fact that Perich was a commissioned minister. will minister to the faithful is the church's alone. Although such a title, by itself, does not automatic- Pp. 709 – 710. ally ensure coverage, the fact that an employee has been ordained or commissioned as a minister is (c) Today the Court holds only that the minis-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) terial exception bars an employment discrimination O'Melveny & Myers LLP, Washington, DC, for suit brought on behalf of a minister, challenging her Private Respondent. church's decision to fire her. The Court expresses no view on whether the exception bars other types For U.S. Supreme Court Briefs, See:2011 WL of suits. Pp. 709 – 710. 3319555 (Resp.Brief)2011 WL 3380507 (Resp.Brief)2011 WL 3919718 (Reply.Brief) 597 F.3d 769, reversed. Chief Justice ROBERTS delivered the opinion of ROBERTS,C.J.,deliveredtheopinionfora the Court. unanimous Court. THOMAS,J.,filedaconcurring Certain employment discrimination laws au- opinion. ALITO,J.,filedaconcurringopinion,in thorize employees who have been wrongfully ter- which KAGAN,J.,joined. minated to sue their employers for reinstatement Douglas Laycock,Charlottesville,VA,forPetition- and damages. The question presented is whether the er. Establishment and Free Exercise Clauses of the First Amendment bar such an action when the em- Leondra R. Kruger,Washington,DC,forFederal ployer is a religious group and the employee is one Respondent. of the group's ministers.

*699 Walter Dellinger,Washington,DC,for I Private Respondent. A Petitioner Hosanna–Tabor Evangelical Luther- Eric C. Rassbach, Hannah C. Smith, Luke W. an Church and School is a member congregation of Goodrich,LoriH.Windham,TheBecketFundfor the Lutheran Church–Missouri Synod, the second Religious Liberty, Washington, DC, Joshua D. largest Lutheran denomination in America. Hawley, University of Missouri School of Law, Hosanna–Tabor operated a small school in Redford, Columbia, MO, Douglas Laycock,CounselofRe- Michigan, offering a “Christ-centered education” to cord, University of Virginia School of Law, Char- students in kindergarten through eighth grade. 582 lottesville, VA, Sherri C. Strand, James W. Erwin, F.Supp.2d 881, 884 (E.D.Mich.2008) (internal quo- Thompson Coburn LLP, St. Louis, MO, for Peti- tation marks omitted). tioner. The Synod classifies teachers into two categor- P. David Lopez,GeneralCounsel,LorraineC.Dav- ies: “called” and “lay.” “Called” teachers are re- is, Acting Associate General Counsel, Carolyn L. garded as having been called to their vocation by Wheeler,AssistantGeneralCounsel,Eric A. Har- God through a congregation. To be eligible to re- rington,Attorney,EqualEmploymentOpportunity ceive a call from a congregation, a teacher must sat- Commission, Washington, DC, Donald B. Verrilli, isfy certain academic requirements. One way of do- Jr.,SolicitorGeneral,Thomas E. Perez,Assistant ing so is by completing a “colloquy” program at a Attorney General, Leondra R. Kruger,Acting Lutheran college or university. The program re- Deputy Solicitor General, Counsel of Record, quires candidates to take eight courses of theologic- Joseph R. Palmore,AssistanttotheSolicitorGener- al study, obtain the endorsement of their local Syn- al, Dennis J. Dimsey, Sharon M. McGowan,Aaron od district, and pass an oral examination by a fac- D. Schuham, Attorneys, Department of Justice, ulty committee. A teacher who meets these require- Washington, DC, for Federal Respondent. ments may be called by a congregation. Once James E. Roach, Robert M. Vercruysse,Vercruysse called, a teacher receives the formal title “Minister Murray & Calzone, P.C., Bingham Farms, MI, Wal- of Religion, Commissioned.” App. 42, 48. A com- ter Dellinger, Anton Metlitsky, Loren L. Alikhan, missioned minister serves for an open-ended term;

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 7 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) at Hosanna–Tabor, a call could be rescinded only On January 30, Hosanna–Tabor held a meeting for cause and by a supermajority vote of the con- of its congregation at which school administrators gregation. stated that Perich was unlikely to be physically capable of returning to work that school year or the “Lay” or “contract” teachers, by contrast, are next. The congregation voted to offer Perich a not required to be trained by the Synod or even to “peaceful release” from her call, whereby the con- be Lutheran. At Hosanna–Tabor, they were appoin- gregation would pay a portion of her health insur- ted by the *700 school board, without a vote of the ance premiums in exchange for her resignation as a congregation, to one-year renewable terms. Al- called teacher. Id., at 178, 186. Perich refused to though teachers at the school generally performed resign and produced a note from her doctor stating the same duties regardless of whether they were lay that she would be able to return to work on Febru- or called, lay teachers were hired only when called ary 22. The school board urged Perich to recon- teachers were unavailable. sider, informing her that the school no longer had a position for her, but Perich stood by her decision Respondent Cheryl Perich was first employed not to resign. by Hosanna–Tabor as a lay teacher in 1999. After Perich completed her colloquy later that school On the morning of February 22—the first day year, Hosanna–Tabor asked her to become a called she was medically cleared to return to teacher. Perich accepted the call and received a work—Perich presented herself at the school. Hoeft “diploma of vocation” designating her a commis- asked her to leave but she would not do so until she sioned minister. Id., at 42. obtained written documentation that she had reported to work. Later that afternoon, Hoeft called Perich taught kindergarten during her first four Perich at home and told her that she would likely be years at Hosanna–Tabor and fourth grade during fired. Perich responded that she had spoken with an the 2003–2004 school year. She taught math, lan- attorney and intended to assert her legal rights. guage arts, social studies, science, gym, art, and music. She also taught a religion class four days a Following a school board meeting that evening, week, led the students in prayer and devotional ex- board chairman Scott Salo sent Perich a letter stat- ercises each day, and attended a weekly schooling that Hosanna–Tabor was reviewing the process wide chapel service. Perich led the chapel service for rescinding her call in light of her “regrettable” herself about twice a year. actions. Id., at 229. Salo subsequently followed up with a letter advising Perich that the congregation Perich became ill in June 2004 with what was would consider whether to rescind her call at its eventually diagnosed as narcolepsy.Symptomsin- next meeting. As grounds for termination, the letter cluded sudden and deep sleeps from which she cited Perich's “insubordination and disruptive beha- could not be roused. Because of her illness, Perich vior” on February 22, as well as the damage she began the 2004–2005 school year on disability had done to her “working relationship” with the leave. On January 27, 2005, however, Perich noti- school by “threatening to take legal action.” Id., at fied the school principal, Stacey Hoeft, that she 55. The congregation voted to rescind Perich's call would be able to report to work the following on April 10, and Hosanna–Tabor sent her a letter of month. Hoeft responded that the school had already termination the next day. contracted with a lay teacher to fill Perich's position for the remainder of the school year. Hoeft also ex- *701 B pressed concern that Perich was not yet ready to re- Perich filed a charge with the Equal Employ- turn to the classroom. ment Opportunity Commission, alleging that her employment had been terminated in violation of the

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Americans with Disabilities Act, 104 Stat. 327, 42 damages, attorney's fees, and other injunctive relief. U.S.C. § 12101 et seq. (1990).TheADAprohibits an employer from discriminating against a qualified Hosanna–Tabor moved for summary judgment. individual on the basis of disability. § 12112(a). It Invoking what is known as the “ministerial excep- also prohibits an employer from retaliating “against tion,” the Church argued that the suit was barred by any individual because such individual has opposed the First Amendment because the claims at issue any act or practice made unlawful by [the ADA] or concerned the employment relationship between a because such individual made a charge, testified, religious institution and one of its ministers. Ac- assisted, or participated in any manner in an invest- cording to the Church, Perich was a minister, and igation, proceeding, or hearing under [the ADA].” § she had been fired for a religious reason—namely, FN1 12203(a). that her threat to sue the Church violated the Syn- od's belief that Christians should resolve their dis- FN1. The ADA itself provides religious putes internally. entities with two defenses to claims of discrimination that arise under subchapter I of The District Court agreed that the suit was the Act. The first provides that “[t]his barred by the ministerial exception and granted subchapter shall not prohibit a religious summary judgment in Hosanna–Tabor's favor. The corporation, association, educational insti- court explained that “Hosanna–Tabor treated Perich tution, or society from giving preference in like a minister and held her out to the world as such employment to individuals of a particular long before this litigation began,” and that the religion to perform work connected with “facts surrounding Perich's employment in a reli- the carrying on by such [entity] of its gious school with a sectarian mission” supported activities.” § 12113(d)(1) (2006 ed., Supp. the Church's characterization. 582 F.Supp.2d, at III). The second provides that “[u]nder this 891–892. In light of that determination, the court subchapter, a religious organization may concluded that it could “inquire no further into her require that all applicants and employees claims of retaliation.” Id., at 892. conform to the religious tenets of such or- The Court of Appeals for the Sixth Circuit va- ganization.” § 12113(d)(2). The ADA's cated and remanded, directing the District Court to prohibition against retaliation, § 12203(a), proceed to the merits of Perich's retaliation claims. appears in a different The Court of Appeals recognized the existence of a subchapter—subchapter IV. The EEOC ministerial exception barring certain employment and Perich contend, and Hosanna–Tabor discrimination claims against religious institu- does not dispute, that these defenses there- tions—an exception “rooted in the First Amend- fore do not apply to retaliation claims. ment's guarantees of religious freedom.” 597 F.3d The EEOC brought suit against 769, 777 (2010).Thecourtconcluded,however, Hosanna–Tabor, alleging that Perich had been fired that Perich did not qualify as a “minister” under the in retaliation for threatening to file an ADA law- exception, noting in particular that her duties as a suit. Perich intervened in the litigation, claiming called teacher were identical to her duties as a lay unlawful retaliation under both the ADA and the teacher. *702Id., at 778– 781. Judge White con- Michigan Persons with Disabilities Civil Rights curred. She viewed the question whether Perich Act, Mich. Comp. Laws § 37.1602(a) (1979). The qualified as a minister to be closer than did the ma- EEOC and Perich sought Perich's reinstatement to jority, but agreed that the “fact that the duties of the her former position (or frontpay in lieu thereof), contract teachers are the same as the duties of the along with backpay, compensatory and punitive called teachers is telling.” Id., at 782, 784.

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We granted certiorari. 563 U.S. ––––, 131 S.Ct. acted subsequently, tightened further the govern- 1783, 179 L.Ed.2d 653 (2011). ment's grip on the exercise of religion. See, e.g., Act of Uniformity, 1559, 1 Eliz., ch. 2; Act of Uni- II formity, 1549, 2 & 3 Edw. 6, ch. 1. The Uniformity The First Amendment provides, in part, that Act of 1662, for instance, limited service as a min- “Congress shall make no law respecting an estab- ister to those who formally assented to prescribed lishment of religion, or prohibiting the free exercise tenets and pledged to follow the mode of worship thereof.” We have said that these two Clauses set forth in the Book of Common Prayer. Any min- “often exert conflicting pressures,” Cutter v. ister who refused to make that pledge was Wilkinson, 544 U.S. 709, 719, 125 S.Ct. 2113, 161 “deprived of all his Spiritual Promotions.” Act of L.Ed.2d 1020 (2005),andthattherecanbe Uniformity, 1662, 14 Car. 2, ch. 4. “internal tension ... between the Establishment Clause and the Free Exercise Clause,” Tilton v. Seeking to escape the control of the national Richardson, 403 U.S. 672, 677, 91 S.Ct. 2091, 29 church, the Puritans fled to New England, where L.Ed.2d 790 (1971) (plurality opinion). Not so here. they hoped to elect their own ministers and estab- Both Religion Clauses bar the government from in- lish their own modes of worship. See T. Curry, The terfering with the decision of a religious group to First Freedoms: Church and State in America to the fire one of its ministers. Passage of the First Amendment 3 (1986); McCon- nell, The Origins and Historical Understanding of A Free Exercise of Religion, 103 Harv. L.Rev. 1409, Controversy between church and state over re- 1422 (1990).WilliamPenn,theQuakerproprietor ligious offices is hardly new. In 1215, the issue was of what would eventually become Pennsylvania and addressed in the very first clause of Magna Carta. Delaware, also sought independence from the There, King John agreed that “the English church Church of England. The charter creating the shall be free, and shall have its rights undiminished province of Pennsylvania contained no clause es- and its liberties unimpaired.” The King in particular tablishing a religion. See S. Cobb, The Rise of Reli- accepted the “freedom of elections,” a right gious Liberty in America 440–441 (1970). “thought to be of the greatest necessity and importance to the English church.” J. Holt, Magna Carta *703 Colonists in the South, in contrast, App. IV, p. 317, cl. 1 (1965). brought the Church of England with them. But even they sometimes chafed at the control exercised by That freedom in many cases may have been the Crown and its representatives over religious of- more theoretical than real. See, e.g., W. Warren, fices. In Virginia, for example, the law vested the Henry II 312 (1973) (recounting the writ sent by governor with the power to induct ministers presen- Henry II to the electors of a bishopric in ted to him by parish vestries, 2 Hening's Statutes at Winchester, stating: “I order you to hold a free Large 46 (1642), but the vestries often refused to election, but forbid you to elect anyone but Richard make such presentations and instead chose minis- my clerk”). In any event, it did not survive the reign ters on their own. See H. Eckenrode, Separation of of Henry VIII, even in theory. The Act of Suprem- Church and State in Virginia 13–19 (1910). Contro- acy of 1534, 26 Hen. 8, ch. 1, made the English versies over the selection of ministers also arose in monarch the supreme head of the Church, and the other Colonies with Anglican establishments, in- Act in Restraint of Annates, 25 Hen. 8, ch. 20, cluding North Carolina. See C. Antieau, A. passed that same year, gave him the authority to ap- Downey, & E. Roberts, Freedom from Federal Es- point the Church's high officials. See G. Elton, The tablishment: Formation and Early History of the Tudor Constitution: Documents and Commentary First Amendment Religion Clauses 10–11 (1964). 331–332 (1960). Various Acts of Uniformity, en-

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There, the royal governor insisted that the right of “functionaries” was an “entirely ecclesiastical” presentation lay with the Bishop of London, but the matter left to the Church's own judgment. Letter colonial assembly enacted laws placing that right in from James Madison to Bishop Carroll (Nov. 20, the vestries. Authorities in England intervened, re- 1806), reprinted in 20 Records of the American pealing those laws as inconsistent with the rights of Catholic Historical Society 63 (1909). The the Crown. See id., at 11; Weeks, Church and State “scrupulous policy of the Constitution in guarding in North Carolina, Johns Hopkins U. Studies in against a political interference with religious af- Hist. & Pol. Sci., 11th Ser., Nos. 5–6, pp. 29–36 fairs,” Madison explained, prevented the Govern- (1893). ment from rendering an opinion on the “selection of ecclesiastical individuals.” Id., at 63–64. It was against this background that the First Amendment was adopted. Familiar with life under The second episode occurred in 1811, when the established Church of England, the founding Madison was President. Congress had passed a bill generation sought to foreclose the possibility of a incorporating the Protestant Episcopal Church in national church. See 1 Annals of Cong. 730–731 the town of Alexandria in what was then the Dis- (1789) (noting that the Establishment Clause ad- trict of Columbia. Madison vetoed the bill, on the dressed the fear that “one sect might obtain a pre- ground that it “exceeds the rightful authority to eminence, or two combine together, and establish a which Governments are limited, by the essential religion to which they would compel others to con- distinction between civil *704 and religious func- form” (remarks of J. Madison)). By forbidding the tions, and violates, in particular, the article of the “establishment of religion” and guaranteeing the Constitution of the United States, which declares, “free exercise thereof,” the Religion Clauses en- that ‘Congress shall make no law respecting a reli- sured that the new Federal Government—unlike the gious establishment.’ ” 22 Annals of Cong. English Crown—would have no role in filling ec- 982–983 (1811). Madison explained: clesiastical offices. The Establishment Clause prevents the Government from appointing ministers, “The bill enacts into, and establishes by law, sun- and the Free Exercise Clause prevents it from inter- dry rules and proceedings relative purely to the fering with the freedom of religious groups to select organization and polity of the church incorpor- their own. ated, and comprehending even the election and removal of the Minister of the same ;sothatno This understanding of the Religion Clauses was change could be made therein by the particular reflected in two events involving James Madison, “ society, or by the general church of which it is a ‘the leading architect of the religion clauses of the member, and whose authority it recognises.” Id., First Amendment.’ ” Arizona Christian School Tu- at 983 (emphasis added). ition Organization v. Winn, 563 U.S. ––––, ––––, 131 S.Ct. 1436, 1446, 179 L.Ed.2d 523 (2011) B (quoting Flast v. Cohen, 392 U.S. 83, 103, 88 S.Ct. Given this understanding of the Religion 1942, 20 L.Ed.2d 947 (1968)). The first occurred in Clauses—and the absence of government employ- 1806, when John Carroll, the first Catholic bishop ment regulation generally—it was some time before in the United States, solicited the Executive's opin- questions about government interference with a ion on who should be appointed to direct the affairs church's ability to select its own ministers came be- of the Catholic Church in the territory newly ac- fore the courts. This Court touched upon the issue quired by the Louisiana Purchase. After consulting indirectly, however, in the context of disputes over with President Jefferson, then-Secretary of State church property. Our decisions in that area confirm Madison responded that the selection of church that it is impermissible for the government to contradict a church's determination of who can act as

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 11 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) its ministers. scow. New York's highest court ruled in favor of the North American churches, based on a state law In Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666 requiring every Russian Orthodox church in New (1872),theCourtconsideredadisputebetweenan- York to recognize the determination of the govern- tislavery and proslavery factions over who con- ing body of the North American churches as author- trolled the property of the Walnut Street Presbyteri- itative. Id., at 96–97, 99, n. 3, 107, n. 10, 73 S.Ct. an Church in Louisville, Kentucky. The General 143. Assembly of the Presbyterian Church had recognized the antislavery faction, and this *705 This Court reversed, concluding that the Court—applying not the Constitution but a “broad New York law violated the First Amendment. Id., and sound view of the relations of church and state at 107, 73 S.Ct. 143. We explained that the contro- under our system of laws”—declined to question versy over the right to use the cathedral was that determination. Id., at 727. We explained that “strictly a matter of ecclesiastical government, the “whenever the questions of discipline, or of faith, power of the Supreme Church Authority of the Rus- or ecclesiastical rule, custom, or law have been de- sian Orthodox Church to appoint the ruling hierarch cided by the highest of [the] church judicatories to of the archdiocese of North America.” Id., at 115, which the matter has been carried, the legal 73 S.Ct. 143. By “pass[ing] the control of matters tribunals must accept such decisions as final, and as strictly ecclesiastical from one church authority to binding on them.” Ibid. As we would put it later, another,” the New York law intruded the “power of our opinion in Watson “radiates ... a spirit of free- the state into the forbidden area of religious freedom for religious organizations, an independence dom contrary to the principles of the First Amend- from secular control or manipulation—in short, ment.” Id., at 119, 73 S.Ct. 143. Accordingly, we power to decide for themselves, free from state in- declared the law unconstitutional because it terference, matters of church government as well as “directly prohibit[ed] the free exercise of an eccle- those of faith and doctrine.” Kedroff v. Saint Nich- siastical right, the Church's choice of its hierarchy.” olas Cathedral of Russian Orthodox Church in Ibid. North America, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952). This Court reaffirmed these First Amendment principles in Serbian Eastern Orthodox Diocese for Confronting the issue under the Constitution United States and Canada v. Milivojevich, 426 U.S. for the first time in Kedroff, the Court recognized 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976),acase that the “[f]reedom to select the clergy, where no involving a dispute over control of the Americ- improper methods of choice are proven,” is “part of an–Canadian Diocese of the Serbian Orthodox the free exercise of religion” protected by the First Church, including its property and assets. The Amendment against government interference. Ibid. Church had removed Dionisije Milivojevich as At issue in Kedroff was the right to use a Russian bishop of the American–Canadian Diocese because Orthodox cathedral in New York City. The Russian of his defiance of the church hierarchy. Following Orthodox churches in North America had split from his removal, Dionisije brought a civil action in state the Supreme Church Authority in Moscow, out of court challenging the Church's decision, and the concern that the Authority had become a tool of the Illinois Supreme Court “purported in effect to rein- Soviet Government. The North American churches state Dionisije as Diocesan Bishop,” on the ground claimed that the right to use the cathedral belonged that the proceedings resulting in his removal failed to an archbishop elected by them; the Supreme to comply with church laws and regulations. Id., at Church Authority claimed that it belonged instead 708, 96 S.Ct. 2372. to an archbishop appointed by the patriarch in Mo- Reversing that judgment, this Court explained

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 12 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) that the First Amendment “permit [s] hierarchical (C.A.7 2008); Scharon v. St. Luke's Epis- religious organizations to establish their own rules copal Presbyterian Hospitals, 929 F.2d and regulations for internal discipline and govern- 360, 362–363 (C.A.8 1991); Werft v. ment, and to create tribunals for adjudicating dis- Desert Southwest Annual Conference, 377 putes over these matters.” Id., at 724, 96 S.Ct. F.3d 1099, 1100–1104 (C.A.9 2004); 2372. When ecclesiastical tribunals decide such dis- Bryce v. Episcopal Church, 289 F.3d 648, putes, we further explained, “the Constitution re- 655–657 (C.A.10 2002); Gellington v. quires that civil courts accept their decisions as Christian Methodist Episcopal Church, binding upon them.” Id., at 725, 96 S.Ct. 2372. We Inc., 203 F.3d 1299, 1301–1304 (C.A.11 thus held that by inquiring into whether the Church 2000); EEOC v. Catholic Univ., 83 F.3d had followed its own procedures, the State Supreme 455, 460–463 (C.A.D.C.1996). Court had “unconstitutionally undertaken the resolution of quintessentially religious controversies *706 [1] We agree that there is such a minis- whose resolution the First Amendment commits ex- terial exception. The members of a religious group clusively to the highest ecclesiastical tribunals” of put their faith in the hands of their ministers. Re- the Church. Id., at 720, 96 S.Ct. 2372. quiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, C intrudes upon more than a mere employment de- Until today, we have not had occasion to con- cision. Such action interferes with the internal gov- sider whether this freedom of a religious organiza- ernance of the church, depriving the church of con- tion to select its ministers is implicated by a suit al- trol over the selection of those who will personify leging discrimination in employment. The Courts of its beliefs. By imposing an unwanted minister, the Appeals, in contrast, have had extensive experience state infringes the Free Exercise Clause, which pro- with this issue. Since the passage of Title VII of the tects a religious group's right to shape its own faith Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and mission through its appointments. According and other employment discrimination laws, the the state the power to determine which individuals Courts of Appeals have uniformly recognized the will minister to the faithful also violates the Estab- existence of a “ministerial exception,” grounded in lishment Clause, which prohibits government in- the First Amendment, that precludes application of volvement in such ecclesiastical decisions. such legislation to claims concerning the employment relationship between a religious institution The EEOC and Perich acknowledge that em- FN2 and its ministers. ployment discrimination laws would be unconstitutional as applied to religious groups in certain cir- FN2. See Natal v. Christian and Mission- cumstances. They grant, for example, that it would ary Alliance, 878 F.2d 1575, 1578 (C.A.1 violate the First Amendment for courts to apply 1989); Rweyemamu v. Cote, 520 F.3d 198, such laws to compel the ordination of women by 204–209 (C.A.2 2008); Petruska v. Gan- the Catholic Church or by an Orthodox Jewish sem- non Univ., 462 F.3d 294, 303–307 (C.A.3 inary. Brief for Federal Respondent 31; Brief for 2006); EEOC v. Roman Catholic Diocese, Respondent Perich 35–36. According to the EEOC 213 F.3d 795, 800–801 (C.A.4 2000); and Perich, religious organizations could success- Combs v. Central Tex. Annual Conference, fully defend against employment discrimination 173 F.3d 343, 345–350 (C.A.5 1999); claims in those circumstances by invoking the con- Hollins v. Methodist Healthcare, Inc., 474 stitutional right to freedom of association—a right F.3d 223, 225–227 (C.A.6 2007); Schleich- “implicit” in the First Amendment. Roberts v. er v. Salvation Army, 518 F.3d 472, 475 United States Jaycees, 468 U.S. 609, 622, 104 S.Ct.

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3244, 82 L.Ed.2d 462 (1984).TheEEOCand interference with an internal church decision that Perich thus see no need—and no basis—for a spe- affects the faith and mission of the church itself. cial rule for ministers grounded in the Religion See id., at 877, 110 S.Ct. 1595 (distinguishing the Clauses themselves. government's regulation of “physical acts” from its “lend [ing] its power to one or the other side in con- [2] We find this position untenable. The right troversies over religious authority or dogma”). The to freedom of association is a right enjoyed by reli- contention that Smith forecloses recognition of a gious and secular groups alike. It follows under the ministerial exception rooted in the Religion Clauses EEOC's and Perich's view that the First Amend- has no merit. ment analysis should be the same, whether the association in question is the Lutheran Church, a labor III union, or a social club. See Perich Brief 31; Tr. of [3] Having concluded that there is a ministerial Oral Arg. 28. That result is hard to square with the exception grounded in the Religion Clauses of the text of the First Amendment itself, which gives spe- First Amendment, we consider whether the excep- cial solicitude to the rights of religious organization applies in this case. We hold that it does. tions. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a re- Every Court of Appeals to have considered the ligious organization's freedom to select its own question has concluded that the ministerial excep- ministers. tion is not limited to the head of a religious congregation, and we agree. We are reluctant, however, The EEOC and Perich also contend that our de- to adopt a rigid formula for deciding when an em- cision in Employment Div., Dept. of Human Re- ployee qualifies as a minister. It is enough for us to sources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. conclude, in this our first case involving the minis- 1595, 108 L.Ed.2d 876 (1990),precludesrecogni- terial exception, that the exception covers Perich, tion of a ministerial exception. In Smith, two mem- given all the circumstances of her employment. bers of the Native American Church were denied state unemployment benefits after it was determ- To begin with, Hosanna–Tabor held Perich out ined that they had been fired from their jobs for in- as a minister, with a role distinct from that of most gesting peyote, a crime under Oregon law. We held of its members. When Hosanna–Tabor extended her that this did not violate the Free Exercise Clause, acall,itissuedhera“diplomaofvocation”accord- even though the peyote had been ingested for sacra- ing her the title “Minister of Religion, Commis- mental purposes, because the “right of free exercise sioned.” App. 42. She was tasked with performing does not relieve an individual of the obligation to that office “according to the Word of God and the comply with a valid and neutral law of general ap- confessional standards of the Evangelical Lutheran plicability on the ground that the law proscribes (or Church as drawn from the Sacred Scriptures.” Ibid. prescribes) conduct that his religion prescribes (or The congregation prayed that God “bless [her] min- proscribes).” *707Id., at 879, 110 S.Ct. 1595 istrations to the glory of His holy name, [and] the (internal quotation marks omitted). building of His church.” Id., at 43. In a supplement to the diploma, the congregation undertook to peri- It is true that the ADA's prohibition on retali- odically review Perich's “skills of ministry” and ation, like Oregon's prohibition on peyote use, is a “ministerial responsibilities,” and to provide for her valid and neutral law of general applicability. But a “continuing education as a professional person in church's selection of its ministers is unlike an indi- the ministry of the Gospel.” Id., at 49. vidual's ingestion of peyote. Smith involved government regulation of only outward physical acts. Perich's title as a minister reflected a signific- The present case, in contrast, concerns government ant degree of religious training followed by a form-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 14 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) al process of commissioning. To be eligible to be- Scriptures, in its truth and purity and as set forth in come a commissioned minister, Perich had to com- all the symbolical books of the Evangelical Luther- plete eight college-level courses in subjects includ- an Church.” Id., at 48. In fulfilling these responsib- ing biblical interpretation, church doctrine, and the ilities, Perich taught her students religion four days ministry of the Lutheran teacher. She also had to aweek,andledtheminprayerthreetimesaday. obtain the endorsement of her local Synod district Once a week, she took her students to a school- by submitting a petition that contained her academ- wide chapel service, and—about twice a year—she ic transcripts, letters of recommendation, personal took her turn leading it, choosing the liturgy, select- statement, and written answers to various ministry- ing the hymns, and delivering a short message related questions. Finally, she had to pass an oral based on verses from the Bible. During her last year examination by a faculty committee at a Lutheran of teaching, Perich also led her fourth graders in a college. It took Perich six years to fulfill these re- brief devotional exercise each morning. As a source quirements. And when she eventually did, she was of religious instruction, Perich performed an im- commissioned as a minister only upon election by portant role in transmitting the Lutheran faith to the the congregation, which recognized God's call to next generation. her to teach. At that point, her call could be rescinded only upon a supermajority vote of the congreg- In light of these considerations—the formal ation—a protection designed to allow her to title given Perich by the Church, the substance re- “preach the Word of God boldly.” Brief for Luther- flected in that title, her own use of that title, and the an Church–Missouri Synod as Amicus Curiae 15. important religious functions she performed for the Church—we conclude that Perich was a minister Perich held herself out as a minister of the covered by the ministerial exception. Church by accepting the formal call to religious service, according to its terms. *708 She did so in [4] In reaching a contrary conclusion, the Court other ways as well. For example, she claimed a spe- of Appeals committed three errors. First, the Sixth cial housing allowance on her taxes that was avail- Circuit failed to see any relevance in the fact that able only to employees earning their compensation Perich was a commissioned minister. Although “‘intheexerciseoftheministry.’”App.220(“If such a title, by itself, does not automatically ensure you are not conducting activities ‘in the exercise of coverage, the fact that an employee has been or- the ministry,’ you cannot take advantage of the par- dained or commissioned as a minister is surely rel- sonage or housing allowance exclusion” (quoting evant, as is the fact that significant religious train- Lutheran Church–Missouri Synod Brochure on ing and a recognized religious mission underlie the Whether the IRS Considers Employees as a Minis- description of the employee's position. It was ter (2007)). In a form she submitted to the Synod wrong for the Court of Appeals—and Perich, who following her termination, Perich again indicated has adopted the court's view, see Perich Brief that she regarded herself as a minister at 45—to say that an employee's title does not matter. Hosanna–Tabor, stating: “I feel that God is leading [5] Second, the Sixth Circuit gave too much me to serve in the teaching ministry.... I am anxious weight to the fact that lay teachers at the school to be in the teaching ministry again soon.” App. 53. performed the same religious duties as Perich. We Perich's job duties reflected a role in conveying express no view on whether someone with Perich's the Church's message and carrying out its mission. duties would be covered by the ministerial excep- Hosanna–Tabor expressly charged her with tion in the absence of the other considerations we “lead[ing] others toward Christian maturity” and have discussed. But though relevant, it cannot be “teach[ing] faithfully the Word of God, the Sacred dispositive that others not formally recognized as ministers by the church perform the same func-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 15 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) tions—particularly when, as here, they did so only Brief 58. But that is immaterial. Perich continues to because commissioned ministers were unavailable. seek frontpay in lieu of reinstatement, backpay, compensatory and punitive damages, and attorney's Third, the Sixth Circuit placed too much em- fees. An award of such relief would operate as a phasis on Perich's performance of secular duties. It penalty on the Church for terminating an unwanted is true that her religious duties consumed only 45 minister, and would be no less prohibited by the minutes of each workday, and that the rest of her First Amendment than an order overturning the ter- day was devoted to teaching secular subjects. The mination. Such relief would depend on a determina- EEOC regards that as conclusive, contending that tion that Hosanna–Tabor was wrong to have re- any ministerial exception “should be limited to lieved Perich of her position, and it is precisely those employees who perform exclusively religious such a ruling that is barred by the ministerial excep- FN3 functions.” Brief for Federal Respondent 51. We tion. cannot accept*709 that view. Indeed, we are unsure whether any such employees exist. The heads of FN3. Perich does not dispute that if the congregations themselves often have a mix of du- ministerial exception bars her retaliation ties, including secular ones such as helping to man- claim under the ADA, it also bars her re- age the congregation's finances, supervising purely taliation claim under Michigan law. secular personnel, and overseeing the upkeep of facilities. [7][8] The EEOC and Perich suggest that Hosanna–Tabor's asserted religious reason for fir- [6] Although the Sixth Circuit did not adopt the ing Perich—that she violated the Synod's commit- extreme position pressed here by the EEOC, it did ment to internal dispute resolution—was pretextual. regard the relative amount of time Perich spent per- That suggestion misses the point of the ministerial forming religious functions as largely determinat- exception. The purpose of the exception is not to ive. The issue before us, however, is not one that safeguard a church's decision to fire a minister only can be resolved by a stopwatch. The amount of time when it is made for a religious reason. The excep- an employee spends on particular activities is relev- tion instead ensures that the authority to select and ant in assessing that employee's status, but that control who will minister to the faithful—a matter factor cannot be considered in isolation, without re- “strictly ecclesiastical,” Kedroff, 344 U.S., at 119, FN4 gard to the nature of the religious functions per- 73 S.Ct. 143—is the church's alone. formed and the other considerations discussed above. FN4. AconflicthasarisenintheCourtsof Appeals over whether the ministerial ex- Because Perich was a minister within the ception is a jurisdictional bar or a defense meaning of the exception, the First Amendment re- on the merits. Compare Hollins, 474 F.3d, quires dismissal of this employment discrimination at 225 (treating the exception as jurisdic- suit against her religious employer. The EEOC and tional); and Tomic v. Catholic Diocese of Perich originally sought an order reinstating Perich Peoria, 442 F.3d 1036, 1038–1039 (C.A.7 to her former position as a called teacher. By re- 2006) (same), with Petruska, 462 F.3d, at quiring the Church to accept a minister it did not 302 (treating the exception as an affirmat- want, such an order would have plainly violated the ive defense); Bryce, 289 F.3d, at 654 Church's freedom under the Religion Clauses to se- (same); Bollard v. California Province of lect its own ministers. Soc. of Jesus, 196 F.3d 940, 951 (C.A.9 1999) (same); and Natal, 878 F.2d, at 1576 Perich no longer seeks reinstatement, having (same). We conclude that the exception abandoned that relief before this Court. See Perich operates as an affirmative defense to an

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otherwise cognizable claim, not a jurisdic- ination suit brought on behalf of a minister, chal- tional bar. That is because the issue lenging her church's decision to fire her. Today we presented by the exception is “whether the hold only that the ministerial exception bars such a allegations the plaintiff makes entitle him suit. We express no view on whether the exception to relief,” not whether the court has bars other types of suits, including actions by em- “power to hear [the] case.” Morrison v. ployees alleging breach of contract or tortious con- National Australia Bank Ltd., 561 U.S. duct by their religious employers. There will be ––––, ––––, 130 S.Ct. 2869, 2877, 177 time enough to address the applicability of the ex- L.Ed.2d 535 (2010) (internal quotation ception to other circumstances if and when they marks omitted). District courts have power arise. to consider ADA claims in cases of this sort, and to decide whether the claim can *** proceed or is instead barred by the minis- The interest of society in the enforcement of terial exception. employment discrimination statutes is undoubtedly *710 IV important. But so too is the interest of religious The EEOC and Perich foresee a parade of hor- groups in choosing who will preach their beliefs, ribles that will follow our recognition of a minis- teach their faith, and carry out their mission. When terial exception to employment discrimination suits. aministerwhohasbeenfiredsuesherchurchal- According to the EEOC and Perich, such an excep- leging that her termination was discriminatory, the tion could protect religious organizations from liab- First Amendment has struck the balance for us. The ility for retaliating against employees for reporting church must be free to choose those who will guide criminal misconduct or for testifying before a grand it on its way. jury or in a criminal trial. What is more, the EEOC The judgment of the Court of Appeals for the contends, the logic of the exception would confer Sixth Circuit is reversed. on religious employers “unfettered discretion” to violate employment laws by, for example, hiring It is so ordered. children or aliens not authorized to work in the United States. Brief for Federal Respondent 29. Justice THOMAS,concurring. IjointheCourt'sopinion.Iwriteseparatelyto Hosanna–Tabor responds that the ministerial note that, in my view, the Religion Clauses require exception would not in any way bar criminal pro- civil courts to apply the ministerial exception and to secutions for interfering with law enforcement in- defer to a religious organization's good-faith under- vestigations or other proceedings. Nor, according to standing of who qualifies as its minister. As the the Church, would the exception bar government Court explains, the Religion Clauses guarantee reli- enforcement of general laws restricting eligibility gious organizations autonomy in matters of internal for employment, because the exception applies only governance, including the selection of those who to suits by or on behalf of ministers themselves. will minister the faith. A religious organization's Hosanna–Tabor also notes that the ministerial ex- right to choose its ministers would be hollow, ception has been around in the lower courts for 40 however, if secular courts could second-guess the years, see McClure v. Salvation Army, 460 F.2d organization's sincere determination that a given 553, 558 (C.A.5 1972),andhasnotgivenrisetothe employee is a “minister” under the organization's dire consequences predicted by the EEOC and theological tenets. Our country's religious land- Perich. scape includes organizations with different leadership structures and doctrines that influence their The case before us is an employment discrim-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 17 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) conceptions of ministerial status. The question by many Protestant denominations to refer to mem- whether an employee is a minister is itself religious bers of their clergy, but the term is rarely if ever in nature, and the answer will vary widely. *711 Ju- used in this way by Catholics, Jews, Muslims, FN2 dicial attempts to fashion a civil definition of Hindus, or Buddhists. In addition, the concept “minister” through a bright-line test or multi-factor of ordination as understood by most Christian analysis risk disadvantaging those religious groups churches and by Judaism has no clear counterpart whose beliefs, practices, and membership are out- in some Christian denominations and some other side of the “mainstream” or unpalatable to some. religions. Because virtually every religion in the Moreover, uncertainty about whether its ministerial world is represented in the population of the United designation will be rejected, and a corresponding States, it would be a mistake if the term “minister” fear of liability, may cause a religious group to con- or the concept of ordination were viewed as central form its beliefs and practices regarding “ministers” to the important issue of religious autonomy that is to the prevailing secular understanding. See Cor- presented in cases like this one. Instead, courts poration of Presiding Bishop of Church of Jesus should focus on the function performed by persons Christ of Latter–day Saints v. Amos, 483 U.S. 327, who work for religious bodies. 336, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (“[I]t is asignificantburdenonareligiousorganizationto FN1. It is unconventional to refer to many require it, on pain of substantial liability, to predict persons who clearly fall within the which of its activities a secular court will consider “ministerial” exception, such as Protestant religious. The line is hardly a bright one, and an or- ministers, Catholic priests, and Jewish rab- ganization might understandably be concerned that bis, as “employees,” but I use the term in ajudgewouldnotunderstanditsreligioustenets the sense in which it is used in the anti- and sense of mission. Fear of potential liability discrimination laws that are often implic- might affect the way an organization carried out ated in cases involving the exception. See, what it understood to be its religious mission” e.g., 42 U.S.C. § 2000e(f) (Title VII); § (footnote omitted)). These are certainly dangers 12111(4)(ADA); 29 U.S.C. § 630(f) that the First Amendment was designed to guard (ADEA); § 206(e) (Equal Pay Act and Fair against. Labor Standards Act).

The Court thoroughly sets forth the facts that FN2. See 9 Oxford English Dictionary 818 lead to its conclusion that Cheryl Perich was one of (2d ed. 1989) (def. 4(b)) (noting the term Hosanna–Tabor's ministers, and I agree that these “minister” used in various phrases “applied facts amply demonstrate Perich's ministerial role. as general designations for a person offi- But the evidence demonstrates that Hosanna–Tabor cially charged with spiritual functions in sincerely considered Perich a minister. That would the Christian Church”); 9 Encyclopedia of be sufficient for me to conclude that Perich's suit is Religion 6044–6045 (2d ed. 2005). See properly barred by the ministerial exception. also, e.g., 9NewCatholicEncyclopedia Justice ALITO,withwhomJusticeKAGAN joins, 870 (1967). concurring. The First Amendment protects the freedom of IjointheCourt'sopinion,butIwriteseparately religious groups to engage in certain key religious to clarify my understanding of the significance of activities, including the conducting of worship ser- formal ordination and designation as a “minister” in FN1 vices and other *712 religious ceremonies and determining whether an “employee” of a reli- rituals, as well as the critical process of communic- gious group falls within the so-called “ministerial” ating the faith. Accordingly, religious groups must exception. The term “minister” is commonly used be free to choose the personnel who are essential to

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 18 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) the performance of these functions. position, but it is nonetheless possible to identify a general category of “employees” whose functions The “ministerial” exception should be tailored are essential to the independence of practically all to this purpose. It should apply to any “employee” religious groups. These include those who serve in who leads a religious organization, conducts wor- positions of leadership, those who perform import- ship services or important religious ceremonies or ant functions in worship services and in the per- rituals, or serves as a messenger or teacher of its formance of religious ceremonies and rituals, and faith. If a religious group believes that the ability of those who are entrusted with teaching and convey- such an employee to perform these key functions ing the tenets of the faith to the next generation. has been compromised, then the constitutional guarantee of religious freedom protects the group's Applying the protection of the First Amend- right to remove the employee from his or her posi- ment to roles of religious leadership, worship, ritu- tion. al, and expression focuses on the objective functions that are important for the autonomy of any re- I ligious group, regardless of its beliefs. As we have Throughout our Nation's history, religious bod- recognized in a similar context, “[f]orcing a group ies have been the preeminent example of private as- to accept certain members may impair [its ability] sociations that have “act[ed] as critical buffers to express those views, and only those views, that it between the individual and the power of the State.” intends to express.” Boy Scouts of America v. Dale, Roberts v. United States Jaycees, 468 U.S. 609, 530 U.S. 640, 648, 120 S.Ct. 2446, 147 L.Ed.2d 619, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984).Ina 554 (2000).Thatprincipleapplieswithspecial case like the one now before us—where the goal of force with respect to religious groups, whose very the civil law in question, the elimination of discrim- existence is dedicated to the collective expression ination against persons with disabilities, is so and propagation of shared religious ideals. See Em- worthy—it is easy to forget that the autonomy of ployment Div., Dept. of Human Resources of Ore. religious groups, both here in the United States and v. Smith, 494 U.S. 872, 882, 110 S.Ct. 1595, 108 abroad, has often served as a shield against op- L.Ed.2d 876 (1990) (noting that the constitutional pressive civil laws. To safeguard this crucial interest in freedom of association may be autonomy, we have long recognized that the Reli- “reinforced by Free Exercise Clause concerns”). As gion Clauses protect a private sphere within which the Court notes, the First Amendment “gives spe- religious bodies are free to govern themselves in cial solicitude to the rights of *713 religious organ- accordance with their own beliefs. The Constitution izations,” ante, at 706, but our expressive-associ- guarantees religious bodies “independence from ation cases are nevertheless useful in pointing out secular control or manipulation—in short, power to what those essential rights are. Religious groups are decide for themselves, free from state interference, the archetype of associations formed for expressive matters of church government as well as those of purposes, and their fundamental rights surely in- faith and doctrine.” Kedroff v. Saint Nicholas clude the freedom to choose who is qualified to Cathedral of Russian Orthodox Church in North serve as a voice for their faith. America, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952). When it comes to the expression and inculca- tion of religious doctrine, there can be no doubt that Religious autonomy means that religious au- the messenger matters. Religious teachings cover thorities must be free to determine who is qualified the gamut from moral conduct to metaphysical to serve in positions of substantial religious import- truth, and both the content and credibility of a reliance. Different religions will have different views gion's message depend vitally on the character and on exactly what qualifies as an important religious

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 19 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. 422, 2012 Daily Journ- al D.A.R. 374, 23 Fla. L. Weekly Fed. S 46 (Cite as: 132 S.Ct. 694) conduct of its teachers. A religion cannot depend on (hereinafter respondent), who is regarded by the someone to be an effective advocate for its reli- Lutheran Church–Missouri Synod as a commis- gious vision if that person's conduct fails to live up sioned minister. But while a ministerial title is un- to the religious precepts that he or she espouses. doubtedly relevant in applying the First Amend- For this reason, a religious body's right to self- ment rule at issue, such a title is neither necessary governance must include the ability to select, and to nor sufficient. As previously noted, most faiths do be selective about, those who will serve as the very not employ the term “minister,” and some eschew FN3 “embodiment of its message” and “its voice to the the concept of formal ordination. And at the faithful.” Petruska v. Gannon Univ., 462 F.3d 294, opposite end of the spectrum, some faiths consider 306 (C.A.3 2006).Areligiousbody'scontrolover the ministry to consist of all or a very large *714 FN4 such “employees” is an essential component of its percentage of their members. Perhaps this ex- freedom to speak in its own voice, both to its own plains why, although every circuit to consider the members and to the outside world. issue has recognized the “ministerial” exception, no circuit has made ordination status or formal title de- The connection between church governance terminative of the exception's applicability. and the free dissemination of religious doctrine has deep roots in our legal tradition: FN3. In Islam, for example, “every Muslim can perform the religious rites, so there is “The right to organize voluntary religious associ- no class or profession of ordained clergy. ations to assist in the expression and dissemina- Yet there are religious leaders who are re- tion of any religious doctrine, and to create cognized for their learning and their ability tribunals for the decision of controverted ques- to lead communities of Muslims in prayer, tions of faith within the association, and for the study, and living according to the teaching ecclesiastical government of all the individual of the Qur'an and Muslim law.” 10 Encyc- members, congregations, and officers within the lopedia of Religion 6858 (2d ed. 2005). general association, is unquestioned. All who unite themselves to such a body do so with an im- FN4. For instance, Jehovah's Witnesses plied consent to this government, and are bound consider all baptized disciples to be minis- to submit to it. But it would be a vain consent and ters. See The Watchtower, Who Are God's would lead to the total subversion of such reli- Ministers Today? Nov. 15, 2000, p. 16 gious bodies, if any one aggrieved by one of their (“According to the Bible, all Jehovah's decisions could appeal to the secular courts and worshippers—heavenly and earthly—are have them reversed.” Watson v. Jones, 13 Wall. ministers”). 679, 728–729, 20 L.Ed. 666 (1872). The Fourth Circuit was the first to use the term The “ministerial” exception gives concrete pro- “ministerial exception,” but in doing so it took tection to the free “expression and dissemination of pains to clarify that the label was a mere shorthand. any religious doctrine.” The Constitution leaves it See Rayburn v. General Conference of Seventh-Day to the collective conscience of each religious group Adventists, 772 F.2d 1164, 1168 (1985) (noting that to determine for itself who is qualified to serve as a the exception's applicability “does not depend upon teacher or messenger of its faith. ordination but upon the function of the position”). The Fourth Circuit traced the exception back to Mc- II Clure v. Salvation Army, 460 F.2d 553 (C.A.5 A 1972),whichinvokedtheReligionClausestobara The Court's opinion today holds that the Title VII sex-discrimination suit brought by a wo- “ministerial” exception applies to Cheryl Perich man who was described by the court as a Salvation

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Army “minister,” id., at 554, although her actual Church, 375 F.3d 951, 958 (C.A.9 2004).The title was “officer.” See McClure v. Salvation Army, Court's opinion today should not be read to upset 323 F.Supp. 1100, 1101 (N.D.Ga.1971).Adecade this consensus. after McClure, the Fifth Circuit made clear that formal ordination was not necessary for the B “ministerial” exception to apply. The court held The ministerial exception applies to respondent that the members of the faculty at a Baptist semin- because, as the Court notes, she played a substantial ary were covered by the exception because of their role in “conveying the Church's message and carry- religious function in conveying church doctrine, ing out its mission.” Ante, at 708. She taught reli- even though some of them were not ordained minis- gion to her students four days a week and took ters. See EEOC v. Southwestern Baptist Theologic- them to chapel on the fifth day. She led them in al Seminary, 651 F.2d 277 (1981). daily devotional exercises, and led them in prayer three times a day. She *715 also alternated with the The functional consensus has held up over other teachers in planning and leading worship ser- time, with the D.C. Circuit recognizing that “[t]he vices at the school chapel, choosing liturgies, ministerial exception has not been limited to mem- hymns, and readings, and composing and delivering bers of the clergy.” EEOC v. Catholic Univ., 83 amessagebasedonScripture. F.3d 455, 461 (1996).Thecourtinthatcaserejec- ted a Title VII suit brought by a Catholic nun who It makes no difference that respondent also claimed that the Catholic University of America taught secular subjects. While a purely secular had denied her tenure for a canon-law teaching pos- teacher would not qualify for the “ministerial” ex- ition because of her gender. The court noted that ception, the constitutional protection of religious “members of the Canon Law Faculty perform the teachers is not somehow diminished when they take vital function of instructing those who will in turn on secular functions in addition to their religious interpret, implement, and teach the law governing ones. What matters is that respondent played an im- the Roman Catholic Church and the administration portant role as an instrument of her church's reli- of its sacraments. Although Sister McDonough is gious message and as a leader of its worship activit- not a priest, she is a member of a religious order ies. Because of these important religious functions, who sought a tenured professorship in a field that is Hosanna–Tabor had the right to decide for itself of fundamental importance to the spiritual mission whether respondent was religiously qualified to re- of her Church.” Id., at 464. See also Natal v. Chris- main in her office. tian and Missionary Alliance, 878 F.2d 1575, 1578 Hosanna–Tabor discharged respondent because (C.A.1 1989) (stating that “a religious organiza- she threatened to file suit against the church in a tion's fate is inextricably bound up with those civil court. This threat contravened the Lutheran whom it entrusts with the responsibilities of preach- doctrine that disputes among Christians should be ing its word and ministering to its adherents,” and resolved internally without resort to the civil court noting “the difficulties inherent in separating the FN5 system and all the legal wrangling it entails. In message from the messenger”). Hosanna–Tabor's view, respondent's disregard for The Ninth Circuit too has taken a functional this doctrine compromised her religious function, approach, just recently reaffirming that “the minis- disqualifying her from serving effectively as a terial exception encompasses more than a church's voice for the church's faith. Respondent does not ordained ministers.” Alcazar v. Corp. of Catholic dispute that the Lutheran Church subscribes to a Archbishop of Seattle, 627 F.3d 1288, 1291 (2010) doctrine of internal dispute resolution, but she ar- (en banc); see also Elvig v. Calvin Presbyterian gues that this was a mere pretext for her firing, which was really done for nonreligious reasons.

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FN5. See The Lutheran Church–Missouri At oral argument, both respondent and the Synod, Commission on Theology and United States acknowledged that a pretext inquiry Church Relations, 1 Corinthians 6:1–11: would sometimes be prohibited by principles of re- An Exegetical Study, p. 10 (Apr. 1991) ligious autonomy, and both conceded that a Roman (stating that instead of suing each other, Catholic priest who is dismissed for getting married Christians should seek “an amicable settle- *716 could not sue the church and claim that his ment of differences by means of a decision dismissal was actually based on a ground forbidden by fellow Christians”). See also 1 Corinthi- by the federal antidiscrimination laws. See Tr. of ans 6:1–7 (“If any of you has a dispute Oral Arg. 38–39, 50. But there is no principled with another, dare he take it before the un- basis for proscribing a pretext inquiry in such a godly for judgment instead of before the case while permitting it in a case like the one now saints?”). before us. The Roman Catholic Church's insistence on clerical celibacy may be much better known than For civil courts to engage in the pretext inquiry the Lutheran Church's doctrine of internal dispute that respondent and the Solicitor General urge us to resolution, but popular familiarity with a religious sanction would dangerously undermine the reli- doctrine cannot be the determinative factor. gious autonomy that lower court case law has now protected for nearly four decades. In order to probe What matters in the present case is that the real reason for respondent's firing, a civil Hosanna–Tabor believes that the religious function court—and perhaps a jury—would be required to that respondent performed made it essential that she make a judgment about church doctrine. The cred- abide by the doctrine of internal dispute resolution; ibility of Hosanna–Tabor's asserted reason for ter- and the civil courts are in no position to second- minating respondent's employment could not be as- guess that assessment. This conclusion rests not on sessed without taking into account both the import- respondent's ordination status or her formal title, ance that the Lutheran Church attaches to the doc- but rather on her functional status as the type of trine of internal dispute resolution and the degree to employee that a church must be free to appoint or which that tenet compromised respondent's reli- dismiss in order to exercise the religious liberty that gious function. If it could be shown that this belief the First Amendment guarantees. is an obscure and minor part of Lutheran doctrine, it would be much more plausible for respondent to U.S.,2012. argue that this doctrine was not the real reason for Hosanna-Tabor Evangelical Lutheran Church and her firing. If, on the other hand, the doctrine is a School v. E.E.O.C. central and universally known tenet of Lutheran- 132 S.Ct. 694, 114 Fair Empl.Prac.Cas. (BNA) 129, ism, then the church's asserted reason for her dis- 95 Empl. Prac. Dec. P 44,385, 181 L.Ed.2d 650, 80 charge would seem much more likely to be nonpre- USLW 4056, 274 Ed. Law Rep. 774, 25 A.D. Cases textual. But whatever the truth of the matter might 1057, 44 NDLR P 129, 12 Cal. Daily Op. Serv. be, the mere adjudication of such questions would 422, 2012 Daily Journal D.A.R. 374, 23 Fla. L. pose grave problems for religious autonomy: It Weekly Fed. S 46 would require calling witnesses to testify about the importance and priority of the religious doctrine in END OF DOCUMENT question, with a civil factfinder sitting in ultimate judgment of what the accused church really believes, and how important that belief is to the church's overall mission.

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78II Employment Practices 78k1118 k. Practices prohibited or required United States District Court, in general; elements. Most Cited Cases N.D. Indiana, Under indirect method of proof, plaintiff as- Fort Wayne Division. serting discrimination claim under Title VII must Emily HERX, Plaintiff establish that: (1) she is member of protected class; v. (2) she was meeting her employer's legitimate job DIOCESE OF FORT WAYNE–SOUTH BEND expectations; (3) she suffered adverse employment INC. and St. Vincent De Paul School, Defendants. action; and (4) similarly situated employees outside protected class were treated more favorably. Civil Cause No. 1:12–CV–122 RLM. Rights Act of 1964, § 703(a), 42 U.S.C.A. § Signed Sept. 3, 2014. 2000e–2(a). Background: Teacher brought action against Cath- [2] Civil Rights 78 1114 olic school and diocese alleging that non-renewal of her contract after she underwent in vitro fertiliza- 78 Civil Rights tion amounted to sex and disability discrimination, 78II Employment Practices in violation of Title VII and Americans with Disab- 78k1108 Employers and Employees Affected ilities Act (ADA). Defendants moved for summary 78k1114 k. Exemptions. Most Cited Cases judgment. Title VII provisions exempting religious entities and educational organizations from its nondis- Holdings: The District Court, Robert L. Miller, Jr., crimination mandate are limited to claims of dis- J., held that: crimination premised upon religious preferences, (1) Title VII provisions exempting religious entities and do not give religious organizations freedom to and educational organizations from its nondiscrim- make discriminatory decisions on basis of race, sex, ination mandate did not bar teacher's claim; or national origin. Civil Rights Act of 1964, §§ (2) teacher was not “minister,” for purposes of min- 702(a), 703(e)(2), 42 U.S.C.A. §§ 2000e–1(a), isterial exception to Title VII's nondiscrimination 2000e–2(e)(2). mandate; (3) summary judgment on teacher's Title VII sex [3] Civil Rights 78 1114 discrimination claim was not warranted; (4) summary judgment pursuant to ADA's exemp- 78 Civil Rights tion permitting religious organization to require its 78II Employment Practices employees to conform to organization's religious 78k1108 Employers and Employees Affected tenets was not warranted; and 78k1114 k. Exemptions. Most Cited Cases (5) decision not renew female teacher's contract was not motivated by disability discrimination. Civil Rights 78 1176

Motion granted in part and denied in part. 78 Civil Rights 78II Employment Practices West Headnotes 78k1164 Sex Discrimination in General 78k1176 k. Pregnancy; maternity. Most [1] Civil Rights 78 1118 Cited Cases Title VII provisions exempting religious entit- 78 Civil Rights ies and educational organizations from its nondis-

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crimination mandate did not bar teacher's claim that Cited Cases Catholic school discriminated against her on basis Language arts teacher at Catholic junior high of her gender when it failed to renew her contract school was not “minister,” for purposes of minis- after she underwent in vitro fertilization, where terial exception to Title VII's nondiscrimination teacher did not assert any religious discrimination. mandate, rooted in First Amendment's Establish- Civil Rights Act of 1964, §§ 702(a), 703(e)(2), 42 ment and Free Exercise Clauses, where teacher nev- U.S.C.A. §§ 2000e–1(a), 2000e–2(e)(2). er led planning for Mass, was not ordained by Cath- olic Church, did not hold title with Catholic [4] Civil Rights 78 1114 Church, never had and was not required to have any religious instruction or training to be teacher at 78 Civil Rights school, never held herself out as priest or minister, 78II Employment Practices and was considered by principal to be “lay teacher.” 78k1108 Employers and Employees Affected U.S.C.A. Const.Amend. 1;CivilRightsActof 78k1114 k. Exemptions. Most Cited Cases 1964, § 703(a), 42 U.S.C.A. § 2000e–2(a). Constitutional Law 92 1340(2) [6] Federal Civil Procedure 170A 2497.1 92 Constitutional Law 170A Federal Civil Procedure 92XIII Freedom of Religion and Conscience 170AXVII Judgment 92XIII(B) Particular Issues and Applications 170AXVII(C) Summary Judgment 92k1327 Religious Organizations in Gen- 170AXVII(C)2 Particular Cases eral 170Ak2497 Employees and Employ- 92k1340 Clergy; Ministers ment Discrimination, Actions Involving 92k1340(2) k. Ministerial exception 170Ak2497.1 k. In general. Most in general. Most Cited Cases Cited Cases Ministerial exception to Title VII, rooted in Catholic diocese's admission that it did not re- First Amendment's Establishment and Free Exer- new female teacher's contract because she under- cise Clauses, bars government from interfering with went in vitro fertilization treatments created triable religious employer's decision to fire one of its min- fact issue precluding summary judgment on teach- isters. U.S.C.A. Const.Amend. 1;CivilRightsAct er's Title VII sex discrimination claim, despite dio- of 1964, § 703(a), 42 U.S.C.A. § 2000e–2(a). cese's contention that it would have terminated [5] Civil Rights 78 1114 male teacher who agreed with his wife to proceed with in vitro fertilization. Civil Rights Act of 1964, 78 Civil Rights §703(a),42 U.S.C.A. § 2000e–2(a). 78II Employment Practices 78k1108 Employers and Employees Affected [7] Civil Rights 78 1019(2) 78k1114 k. Exemptions. Most Cited Cases 78 Civil Rights Constitutional Law 92 1368(1) 78I Rights Protected and Discrimination Prohib- ited in General 92 Constitutional Law 78k1016 Handicap, Disability, or Illness 92XIII Freedom of Religion and Conscience 78k1019 Who Is Disabled; What Is Disab- 92XIII(B) Particular Issues and Applications ility 92k1362 Private Education 78k1019(2) k. Impairments in general; 92k1368 Employees major life activities. Most Cited Cases 92k1368(1) k. In general. Most Infertility is “disability” for ADA purposes.

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Americans with Disabilities Act of 1990, § 3(2)(B), 78k1215 Discrimination by Reason of Handi- 42 U.S.C.A. § 12102(2)(B). cap, Disability, or Illness 78k1221 k. Motive or intent; pretext. [8] Civil Rights 78 1217 Most Cited Cases Catholic diocese's decision not renew female 78 Civil Rights teacher's contract because she underwent in vitro 78II Employment Practices fertilization treatments was not motivated by dis- 78k1215 Discrimination by Reason of Handi- crimination on basis of teacher's infertility, in viola- cap, Disability, or Illness tion of ADA, where treatments violated Catholic 78k1217 k. Practices prohibited or re- church's teachings, and there was no evidence of quired in general; elements. Most Cited Cases animus against infertility. Americans with Disabil- To prevail on claim of disability discrimination ities Act of 1990, § 102(b)(6), 42 U.S.C.A. § under ADA, plaintiff must demonstrate that: (1) she 12112(b)(6). is disabled within meaning of ADA, (2) she is qualified to perform job's essential functions, either Christopher S. Stake, Kathleen A. Delaney, with or without reasonable accommodation, and (3) Delaney & Delaney LLC, Indianapolis, IN, for she suffered adverse employment action because of Plaintiff. her disability. Americans with Disabilities Act of 1990, § 102(a), 42 U.S.C.A. § 12112(a). John C. Theisen,TheisenBowers&Associates LLC, M. Scott Hall,Hall&GoodenLLP,Fort [9] Federal Civil Procedure 170A 2497.1 Wayne, IN, for Defendants. 170A Federal Civil Procedure 170AXVII Judgment OPINION AND ORDER 170AXVII(C) Summary Judgment ROBERT L. MILLER, JR.,DistrictJudge. 170AXVII(C)2 Particular Cases *1 The Diocese of Fort Wayne–South Bend, 170Ak2497 Employees and Employ- Inc. and St. Vincent De Paul School declined to re- ment Discrimination, Actions Involving new Emily Herx's teaching contract after learning 170Ak2497.1 k. In general. Most that she was undergoing in vitro fertilization in an Cited Cases effort to become pregnant. The Diocese and the Genuine issue of material fact as to whether School claim they declined to renew her contract Catholic school's decision not to renew contract of because the Catholic Church views in vitro fertiliz- female teacher who was undergoing in vitro fertilization as gravely immoral. Mrs. Herx sued the Dio- ation was based on tenets of faith, or was based on cese and the School, claiming the nonrenew- teacher's infertility precluded summary judgment al—effectively a termination—was based on her pursuant to ADA's exemption permitting religious sex and her disability (infertility), and the Diocese organization to require its employees to conform to and the School moved for summary judgment based organization's religious tenets in teacher's action al- on their rights as religious organizations and the re- leging disability discrimination under ADA. Amer- ligious reason for the employment decision. The icans with Disabilities Act of 1990, § 103(d)(2), 42 court denies the summary judgment motion on the U.S.C.A. § 12113(d)(2). sex discrimination claim because, while a jury could find that a gender-neutral rule against in vitro [10] Civil Rights 78 1221 fertilization prompted her nonrenewal, a jury also could find that a male teacher's contract would have 78 Civil Rights been renewed under the same circumstances. The 78II Employment Practices court grants summary judgment on the disability

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claim because no reasonable jury could find that that capacity on and off until her termination in Mrs. Herx lost her teaching position because of her June 2011. During her tenure, Mrs. Herx's employ- infertility, as opposed to the treatment for her infer- ment was governed by year-to-year teacher's con- tility. tracts that contained the following provision:

I. FACTS *2 TERMS AND CONDITIONS: This contract Summary judgment is appropriate when “the may be terminated prior to its expiration, or not pleadings, depositions, answers to the interrogator- renewed, for reasons relating to improprieties re- ies, and admissions on file, together with the affi- garding Church teachings or laws, unsatisfactory davits, if any, show that there is no genuine issue of performance, inattention to duties, incompetency, material fact and that the moving party is entitled to irregular attendance, insubordination, failure to judgment as a matter of law.” FED. R. CIV. P. follow diocesan policies and procedures, or for 56(c).Agenuineissueofmaterialfactexistswhen any other justifiable reason, provided that, if the there is enough evidence for the nonmoving party contract is terminated or not renewed, the teacher for a jury to return a verdict for the nonmoving shall have, as the teacher's sole means of re- party. Anderson v. Liberty Lobby, Inc., 477 U.S. course, an opportunity to be heard in accordance 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). with appropriate Diocesan Educational Policies. In deciding whether a genuine issue of material fact An employee will not be discharged on account exists, the court accepts as true the evidence favor- of disability if able to perform, with or without ing the nonmovant, and draws all inferences that a reasonable accommodations, the essential func- reasonable jury could draw in her favor. Anderson tions of the teaching position. Acknowledging v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505; and accepting the religious and moral nature Weigle v. SPX Corp., 729 F.3d 724, 730 (7th of the Church's teaching mission, the under- Cir.2013).Theexistenceofanallegedfactualdis- signed agrees to conduct herself or himself at pute, by itself, won't defeat a summary judgment all times, professionally and personally, in ac- motion; the nonmovant must present definite and cordance with the episcopal teaching author- competent evidence at the summary judgment ity, law and governance of the Church in this stage, Parent v. Home Depot U.S.A., Inc., 694 F.3d Diocese. Charges of immoral behavior, or of 919, 922 (7th Cir.2012),andaffirmativelyshow conduct violative of the Teachings of the that there is a genuine issue of material fact that Church shall ultimately be resolved exclusively needs to be resolved at trial. Hemsworth v. Quote- by the Bishop, or his designee, as provided in smith.com, Inc., 476 F.3d 487, 490 (7th Cir.2007); the Diocesan Educational Policies. see also FED. R. CIV. P. 56(e)(2).Summaryjudg- ment has become “the put up or shut up moment” (emphasis added to highlight the portion of the when a party must show evidence that would con- contract the parties agree to be the “morals vince a jury to accept its version of the facts. Steen clause”). Also in effect during Mrs. Herx's tenure v. Myers, 486 F.3d 1017, 1022 (7th Cir.2007) ( was Diocesan Educational Policy No. P3020, which quoting Hammel v. Eau Galle Cheese Factory, 407 reads in pertinent part as follows: F.3d 852, 859 (7th Cir.2005)). II. Religious Standards

These are facts a reasonable jury could find, Since the distinctive and unique purpose of the based on the summary judgment record: Catholic school is to create a Christian educational community, enlivened by a shared faith among The Diocese hired Mrs. Herx in August 2003 to the administrator(s), teachers, students and par- teach junior high language arts at St. Vincent ents, the highest priority is to hire Catholics in School in Fort Wayne, Indiana, and she served in good standing in the Catholic Church who

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demonstrate a commitment to Christian living, Church teachings, a fact of which Mrs. Herx was are endowed with and espouse a Catholic philo- unaware, and he said that she would have been bet- sophy of life, and believe in the Catholic Church ter off had she not mentioned the treatments to any- and her teachings. Both Catholic and non- one. Mrs. Herx asked if her job was at risk and Ms- Catholic teachers who are employed in a Catholic gr. Kuzmich told her he wasn't sure. The Diocese school must, as a condition of employment, have notified Mrs. Herx that her teaching contract aknowledgeofandrespectfortheCatholicfaith, wouldn't be renewed for the 2011–2012 school year abide by the tenets of the Catholic Church as they based on what the Diocese termed “improprieties apply to that person, exhibit a commitment to the related to church teachings or law.” ideals of Christian living, and be supportive of the Catholic faith. Mrs. Herx met with school officials to discuss reconsideration of the termination decision, and Sometime in 2008, Mrs. Herx and her husband was informed that the decision to not renew her learned that she suffered from a medical condition contract would stand. A few weeks later, Mrs. Herx that causes infertility. The couple sought the advice met with Msgr. Kuzmich to appeal the termination of a specialist and began a course of fertility treat- decision, but Msgr. Kuzmich decided that her con- ments that included artificial insemination and in tract wouldn't be renewed. Mrs. Herx was allowed vitro fertilization.Beforeundergoinganytreat- to continue teaching through the end of the ments, Mrs. Herx told her immediate supervisor, St. 2010–2011 school year. Her employment was ulti- Vincent School Principal Sandra Guffey, that she mately terminated on June 22, 2011. was scheduled to undergo artificial insemination,to which Ms. Guffey appeared to respond favorably. Mrs. Herx filed a charge of discrimination with When that procedure wasn't successful, Mrs. Herx the Equal Employment Opportunity Commission. began her first round of in vitro fertilization treat- The EEOC issued its Determination concluding that ments in March 2010 after having notified Ms. the the Diocese had terminated Mrs. Herx's em- Guffey that she would be taking time off from ployment in violation of Title VII and the Americ- FN1 school. Ms. Guffey didn't object, and Mrs. ans with Disabilities Act. Herx was allowed to take sick days to undergo her Mrs. Herx filed her complaint in this court in a treatments. The Diocese's health insurance plan, of timely manner, alleging that the Diocese violated which Mrs. Herx was a member, covered some of Title VII of the Civil Rights Act of 1964, as the associated medical bills. At around the same amended, including the Pregnancy Discrimination time, Mrs. Herx renewed her teaching contract with Act, 42 U.S.C. § 2000e et seq., and Title I of the St. Vincent School for the 2010–2011 school year. Americans with Disabilities Act, 42 U.S.C. § 12101 *3 Mrs. Herx learned about a year et seq. The court denied the Diocese's motion for later—sometime in April 2011, when she was about judgment on the pleadings under Federal Rule of to undergo a second round of in vitro fertilization Civil Procedure 12(c) after a hearing in March treatments—that her infertility treatments were 2013, and the case is now before the court on the problematic for the Diocese (from this point on, the Diocese's motion for summary judgment. Diocese and the School are simply referred to as II. DISCUSSION “the Diocese”). She learned at a meeting with A. Title VII and the Pregnancy Discrimination Act Monsignor John Kuzmich of St. Vincent de Paul Title VII of the Civil Rights Act of 1964 makes Catholic Church that Ms. Guffey had told him it unlawful for an employer to discriminate against about her infertility treatments.Msgr.Kuzmichtold any individual because of her sex. 42 U.S.C. § her that in vitro fertilization treatments violated 2000e–2(a).ThePregnancyDiscriminationActex-

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tended the “because of sex” protections of Title VII od of proof because she has no evidence of discrim- to include pregnancy, childbirth, and related medic- inatory intent; according to the Diocese, neither al conditions. 42 U.S.C. § 2000e(k); see also New- Mrs. Herx's gender nor her disability were factors port News Shipbuilding and Dry Dock Co. v. in the decision to not renew her contract. Lastly, the EEOC, 462 U.S. 669, 684, 103 S.Ct. 2622, 77 Diocese says that while Mrs. Herx can establish the L.Ed.2d 89 (1983) (“ThePregnancyDiscrimina- first three elements of a prima facie case—she's a tion Act has now made clear that, for all Title VII member of a protected class, she was meeting her purposes, discrimination based on a woman's preg- employer's legitimate job expectations, and she was nancy is, on its face, discrimination because of her effectively terminated from her teaching position sex.”); Griffin v. Sisters of Saint Francis, Inc., 489 through the non-renewal of her contract—her claim F.3d 838, 843 (7th Cir.2007) (“[P]regnancy is a fails under the fourth element because no similarly proxy for gender, and, therefore, discrimination situated employees were treated more favorably. against pregnancy is discrimination against women”). Mrs. Herx's claim for pregnancy discrimina- 1. Title VII Exemptions tion “is a claim for gender discrimination, and the Title VII contains two separate provisions that legal analysis for both claims is the same.” combine to exempt religious entities and education- Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, al organizations from its nondiscrimination man- 547 (7th Cir.2011).Forpurposesofthisdiscussion, date in certain circumstances. The first exemption the court refers to the two statutes collectively as provides that Title VII Title VII. shall not apply to ... a religious corporation, asso- *4 [1] ATitleVIIplaintiffcanproveherclaim ciation, educational institution, or society with rein either of two ways: by presenting direct evidence spect to the employment of individuals of a par- of discriminatory intent by the defendant or by em- ticular religion to perform work connected with ploying the burden-shifting framework established the carrying on by such corporation, association, in McDonnell Douglas Corp. v. Green, 411 U.S. educational institution, or society of its activities. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).Under 42 U.S.C. § 2000e–1(a).Thesecondexemp- the indirect method of proof, a plaintiff must estab- tion, specific to religious educational organizations, lish that (1) she's a member of a protected class; (2) provides that she was meeting her employer's legitimate job exit shall not be an unlawful employment practice pectations; (3) she suffered an adverse employment for a school, college, university, or other educa- action; and (4) similarly situated employees outside tional institution or institution of learning to hire the protected class were treated more favorably. and employ employees of a particular religion if Keeton v. Morningstar, Inc., 667 F.3d 877, 884 (7th such school, college, university, or other educa- Cir.2012); see also Hall v. Nalco Co., 534 F.3d tional institution or institution of learning is, in 644, 648–649 (7th Cir.2008) (“adverse employment whole or in substantial part, owned, supported, action based on childbearing capacity will always controlled, or managed by a particular religion or result in treatment of a person in a manner which by a particular religious corporation, association, but for that person's sex would be different”). or society, or if the curriculum of such school, The Diocese maintains summary judgment is college, university, or other educational institu- proper on Mrs. Herx's Title VII claims because as tion or institution of learning is directed toward religious organizations, they are exempt from liab- the propagation of a particular religion. ility under Title VII. They argue in the alternative *5 42 U.S.C. § 2000e–2(e)(2). that Mrs. Herx can't succeed under the direct meth-

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The Diocese says courts have construed those regarded as inconsistent with its religious prin- exemptions broadly to protect employment actions ciples. 929 F.2d at 951. taken by religious institutions against both the religious and secular activities of their employees. The The Diocese explains that, like the parish in Diocese points to the decisions in Corporation of Little, it operates its Catholic schools based upon the Presiding Bishop of the Church of Jesus Christ the Church's principles, with teachers who reflect of Latter–day Saints v. Amos, 483 U.S. 327, 107 correct doctrine and integrity of life, so that schools S.Ct. 2862, 97 L.Ed.2d 273 (1987),andNational providing a Catholic education with the Christian Labor Relations Board v. Catholic Bishop of Chica- spirit are available to members of the Diocese. The go, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 Diocese says that its religious standards direct that (1979),asconfirmingtheneedforTitleVII'sreli- its teachers fulfill the Church's teaching mission as gious employer exemptions to alleviate govern- directed by the bishop, including instructing, super- mental interference with a religious organization's vising, and providing a moral example for students. ability to carry out its religious mission. The Dio- The Diocese concludes that the religious employer cese also relies on Little v. Wuerl, 929 F.2d 944, exemptions in Title VII apply, and no further in- 951 (3d Cir.1991),inwhichtheplaintiffbrought quiry should be allowed, because its decision to not suit for religious discrimination under Title VII renew Mrs. Herx's contract was religiously based. against the Catholic school where she had taught *6 [2][3] The court doesn't read the case law for many years. The parties stipulated that Ms. the same way the Diocese does. Title VII doesn't Little's contract wasn't renewed because she had re- give religious organizations freedom to make dis- married without taking the steps necessary to get criminatory decisions on the basis of race, sex, or the Roman Catholic Church's validation of her national origin. Petruska v. Gannon Univ., 462 second marriage. The Parish based its action on the F.3d 294, 303 (3d Cir.2006) (quoting Rayburn v. “Just Cause Termination” section of the teachers' General Conf. of Seventh–Day Adventists, 772 F.2d handbook, which required the dismissal of a teacher 1164, 1166 (4th Cir.1985)). Title VII's exemptions for public rejection of the Church's official teach- are limited specifically to claims of discrimination ings, which would include a teacher's entry into a premised upon religious preferences, and Mrs. Herx marriage which is not recognized by the Church. isn't complaining about religious preference. The 929 F.2d at 946.TheLittle court recognized that Rayburn court summarized the history of Congres- while “Congress intended Title VII to free individu- sional action relating to Title VII: al workers from religious prejudice ... Congress [also] intended the explicit exemptions to Title VII The legislative history reinforces the plain mean- to enable religious organizations to create and ing of the statutory text. The original Act passed maintain communities composed solely of individu- by the House in 1964 excluded religious employ- als faithful to their doctrinal practices, whether or ers from coverage altogether. The final version not every individual plays a direct role in the organ- excluded such employers only with respect to ization's ‘religious activities.’ ” 929 F.2d at 951. discrimination based on religion, and then only The court interpreted the phrase “of a particular re- with respect to persons hired to carry out the em- ligion” in Title VII's exemption provisions as in- ployer's “religious activities.” In 1972 the statute cluding “permission to employ only persons whose was amended to delete the word “religious,” but beliefs and conduct are consistent with the employ- Congress specifically rejected proposals to er's religious precepts,” and concluded that Title broaden further the scope of the exemption. To VII's prohibition against religious discrimination the contrary, the analysis pertaining to § 702 isn't violated when a parochial school discharges a states clearly that “[s]uch organizations remain teacher who publicly engaged in what the school subject to the provisions of Title VII with regard

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to race, color, sex or national origin.” ply in this case only if Mrs. Herx's claims were based on religious discrimination. But her Title VII Rayburn v. General Conf., 772 F.2d at 1167 ( claim alleges sex discrimination, not religious dis- quoting Section–by–Section Analysis of J.R.1946, crimination. the Equal Employment Opportunity Act of 1972, reprinted in id. at 1844, 1845) (internal citations 2. Title VII's Ministerial Exception omitted). [4] Courts recognize a “ministerial exception” to Title VII, an exception rooted in the First Consistent with Rayburn v. General Conf., Amendment's Establishment and Free Exercise courts across the country have found Title VII to Clauses that bars the government from interfering apply to claims against religious employers for dis- with a religious employer's decision to fire one of crimination based on race, sex, and national origin. its ministers. Hosanna–Tabor Evangelical Lutheran See, e.g., Kennedy v. St. Joseph's Ministries, Inc., Church and School v. EEOC, ––– U.S. ––––, 132 657 F.3d 189, 192 (4th Cir.2011) (“ Section S.Ct. 694, 181 L.Ed.2d 650 (2012).“Themembers 2000e–1(a) does not exempt religious organizations of a religious group put their faith in the hands of from Title VII's provisions barring discrimination their ministers. Requiring a church to accept or re- on the basis of race, gender, or national origin.”); tain an unwanted minister, or punishing a church Boyd v. Harding Academy of Memphis, Inc., 88 for failing to do so, intrudes upon more than a mere F.3d 410, 413 (6th Cir.1996) ( Section 2000e–1(a) employment decision. Such action interferes with doesn't “exempt religious educational institutions the internal governance of the church, depriving the with respect to all discrimination. It merely indic- church of control over the selection of those who ates that such institutions may choose to employ will personify its beliefs.” 132 S.Ct. at 706. members of their own religion without fear of being charged with religious discrimination. Title VII still The Diocese says that while Mrs. Herx wasn't applies, however, to a religious institution charged employed as a religion teacher, she qualified as a with sex discrimination.”); EEOC v. Pacific Press “minister” because the Church, the School, and the Publishing Ass'n, 676 F.2d 1272, 1279 (9th parents of students at the school expected and relied Cir.1982) (“The legislative history of this exemp- on her to perform the function of a minister every tion shows that although Congress permitted reli- day while teaching her students. According to the gious organizations to discriminate in favor of Diocese, even Mrs. Herx agreed that she was to members of their faith, religious employers are not provide students with an example of how to live immune from liability for discrimination based on their faith to share her devotion to God whenever race, sex, national origin, or for retaliatory actions she could. These functions, the Diocese claims, go against employees who exercise their rights under to the heart of what makes St. Vincent de Paul the statute.”); Hopkins v. Women's Div., General School a Catholic school. Bd. of Global Ministries, 238 F.Supp.2d 174, 180 (D.D.C.2002) (applying Title VII to a race discrim- The Hosanna–Tabor Court declined to adopt a ination claim against a religious employer); Elbaz “rigid formula” for deciding when an employee is a v. Congregation Beth Judea, Inc., 812 F.Supp. 802, minister within the meaning of the ministerial ex- 807 (N.D.Ill.1992) (“By its very terms, §2000e–1 ception. Based on the facts of the case before it, the applies only to discrimination on the basis of reli- Court concluded that the exception covered Ms. gion. The ban on discrimination in employment on Perich, based on its considerations of the following: account of race, national origin, or sex is still ap- the church held her out as a minister, giving her a plicable to religious organizations.”). distinct role from that of most church members; the church issued her a “diploma of vocation” that ac- *7 Title VII's statutory exemptions would ap- corded her the title of “Minister of Religion, Com-

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missioned,” and a supplement to the diploma of vo- Mrs. Herx was a member of the clergy of the Cath- cation provided that her “skills of ministry” and olic Church. Mrs. Herx has never led planning for a “ministerial responsibilities” would be periodically Mass, hasn't been ordained by the Catholic Church, reviewed by the congregation to provide for her hasn't held a title with the Catholic Church, has “continuing education as a professional person in never had (and wasn't required to have) any reli- the ministry of the Gospel.” 132 S.Ct. at 707.A gious instruction or training to be a teacher at the person's eligibility to become a minister in the school, has never held herself out as a priest or Lutheran Church required eight college-level minister, and was considered by the principal to be courses in subjects including biblical interpretation, a“layteacher.”ThereligionteachersfortheDio- church doctrine, and the ministry of the Lutheran cese schools have different contracts than the non- teacher; obtaining the endorsement of her local religion teachers and are required to have religious Synod district by submitting a petition that con- education and training. For example, Cynthia Wolf, tained her academic transcripts, letters of recom- areligionteacherintheDiocese,hasaMaster'sDe- mendation, personal statement, and written answers gree in Theology. Labeling Mrs. Herx a “minister” to various ministry-related questions; and passing based on her attendance and participation in prayer an oral examination by a faculty committee at a and religious services with her students, which was Lutheran college. That process took Ms. Perich six done in a supervisory capacity, would greatly ex- years, and even then the congregation had to recog- pand the scope of the ministerial exception and ulti- nize God's call to her to teach. 132 S.Ct. at 707. mately would qualify all of the Diocese's teachers The Court noted that Ms. Perich held herself out as as ministers, a position rejected by the aminister,acceptedtheformalcalltoreligiousser- Hosanna–Tabor Court. vice, claimed a special housing allowance available only to those “in the exercise of the ministry,” and, Deeming Mrs. Herx a “minister” of the Cathol- after her termination, wrote in a letter that she re- ic Church would expand the scope of the ministeri- garded herself as a minister. 132 S.Ct. at 707–708. al exception too far and, in fact, would moot the re- Finally, the Court underscored that Ms. Perich's job ligious exemptions of Title VII and the ADA. was part of conveying the Church's message and 3. The Title VII Claim carrying out its mission: she taught her students re- Mrs. Herx contends that the Diocese's admis- ligion four times per week and led them in prayer sion that it didn't renew her contract because she three times per day, took students to the school underwent in vitro fertilization treatments creates a chapel service once per week, led the service twice triable fact issue as to sex discrimination because per year, and led her fourth graders in brief devo- the only people who could be terminated for that tional exercises every morning. 132 S.Ct. at 708. reason are pregnant women and women trying to Thus, “[i]n light of these considerations—the form- become pregnant. She says Msgr. Kuzmich and al title given [Ms.] Perich by the Church, the sub- Mrs. Guffey both said that Mrs. Herx is the only stance reflected in that title, her own use of that teacher whose contract was not renewed for reasons title, and the important religious functions she per- unrelated to job performance and the only teacher formed for the Church—[the Court] conclude[d] they could recall whose contract wasn't renewed that [Ms.] Perich was a minister covered by the based on the morals clause of the teacher's contract. ministerial exception.” 132 S.Ct. at 708. According to Mrs. Herx, forbidding non-ministerial *8 [5] The Diocese hasn't shown that Mrs. employees from undergoing in vitro fertilization Herx's teaching qualifications or job responsibilities discriminates against women because men don't in any way compare to Ms. Perich's situation. Noth- (and can't) undergo the procedure. ing in the summary judgment record suggests that Mrs. Herx also maintains that the Diocese's

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general statement that they encourage married those treatments. Although the summary judgment couples to have children doesn't change things, be- record contains mention of Mrs. Herx's sick days cause if the Pregnancy Discrimination arm of Title resulting from treatments, she wasn't non-renewed VII doesn't protect women's efforts to have children for missing work. Still, as the court of appeals ex- through all methods, it would let employers over- plained in Nalco, in vitro fertilization “is one of rule employees' doctors. several assisted reproductive technologies that involves a surgical impregnation procedure.... Thus, [6] As mentioned earlier, there are two general contrary to the district court's conclusion, Hall was methods by which an employment discrimination terminated not for the gender-neutral condition of plaintiff can prove her case. One is called the direct infertility, but rather for the gender-specific quality method, in which the plaintiff points to direct or of childbearing capacity.” 534 F.3d at 648–649. circumstantial evidence that allows a jury to infer intentional discrimination by the employer's de- But, the Diocese says, its view of in vitro fertil- cision-maker. Whitfield v. International Truck and ization as immoral is itself gender-neutral. The Dio- Engine Corp., 755 F.3d 438, 443 (7th Cir.2014); cese says that the treatment would be no less im- Makowski v. SmithAmundsen LLC, 662 F.3d 818, moral if a male teacher agreed with his wife that 824 (7th Cir.2011).Theevidencemustleaddirectly they would proceed with in vitro fertilization, so and without speculation to the conclusion that the the Diocese wouldn't allow the hypothetical male decision-maker was motivated by a prohibited teacher to remain at the school, either. And a jury factor such as sex. See Harper v. Fulton County, might well agree, after hearing evidence about the Ill., 748 F.3d 761, 766 (7th Cir.2014).Mrs.Herx's Church's view of in vitro fertilization, that an em- case satisfies that requirement. ployer with so strong a view of this particular infertility treatment would discharge anyone involved *9 The Diocese says Mrs. Herx's contract was with it, male or female. But a jury wouldn't be com- nonrenewed because she underwent a type of infer- pelled to accept that avowed gender-neutrality: the tility treatment that most directly affects females, Diocese hasn't terminated any men for participation and the Diocese has never non-renewed a male in this (or any other) infertility treatment.Evidence teacher for involvement in in vitro fertilization. of what would be done carries less resonance than Mrs. Herx's contention that this supports an infer- what has been done, and a jury that isn't required to ence of sex discrimination finds strength in the accept a party's factual proposition is free to disbe- court of appeals' decision in Hall v. Nalco Co., 534 lieve evidence and draw a permissible contrary in- F.3d 644 (7th Cir.2008),inwhichaprivateemploy- ference. Even in the face of such evidence from the er chose Ms. Hall as expendable in a downsizing Diocese, a jury that resolved every factual dispute, because she had had many absences for in vitro fer- and drew every reasonable inference, in Mrs. Herx's tilization. The court of appeals explained, “Because favor could infer that Mrs. Herx's contract would adverse employment action based on childbearing have been renewed had she been male and capacity will always result in treatment of a person everything else remained the same. in a manner which but for that person's sex would be different, Hall's allegations present a cognizable To so hold isn't to agree with Mrs. Herx's con- claim of sex discrimination under Title VII.” 534 tention that the Pregnancy Discrimination Act pro- F.3d at 649 (quotations marks and citation omitted). hibits religious organizations from drawing a line at infertility treatments they sincerely believe to be Mrs. Herx's case isn't Hall v. Nalco. Ms. Hall gravely immoral. The triable issue is whether Mrs. was left unprotected in the reduction in force not Herx was nonrenewed because of her sex, or be- specifically because of her fertility treatments, but cause of a sincere belief about the morality of in rather because of the work absences occasioned by

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vitro fertilization. ence in employment to individuals of a particular religion to perform work connected with the carry- *10 Because Mrs. Herx has shown that she ing on by such corporation, association, educational could prevail at trial on her Title VII claim, the institution, or society of its activities.” 42 U.S.C. § Diocese's motion for summary judgment with re- 12113(d)(1).Thewordingofthatexemptionisal- spect to that claim must be denied. Discussion of most identical to the exemption in Title VII, see 42 the indirect method of proving sex discrimination U.S.C. § 2000e–1(a),andthelegislativehistoryof isn't needed. the ADA is replete with references to Title VII and Congressional intent that the statutes' religious ex- B. The Americans with Disabilities Act Claim emptions be applied consistently. See, e.g., H.R. [7] Title I of the ADA prohibits any “covered No. 101–485(II), at 150 (1990) (“With respect to entity” from discriminating against a “qualified in- religious entities, the bill adopts the religious pref- dividual” on the basis of disability with regard to erence provision from Title VII.”); H.R. No. the discharge of employees. 42 U.S.C. § 12112(a). 101–485(III), at 46 (1990) (“This provision is sim- Pursuant to the 2008 amendments, ailments sub- ilar to provisions included in 702 of the Civil stantially affecting the reproductive system are con- Rights Act of 1964, and should be interpreted in a sidered to be disabilities. 42 U.S.C. § 12102(2)(B) consistent manner.”); see also 42 U.S.C. § 12117(a) (“a major life activity ... includes the operation of a (“The powers, remedies and procedures set forth in major bodily function, including but not limited to [Title VII] shall be the powers, remedies, and pro- ... reproductive functions”). Infertility—the inabil- cedures [the ADA] provides.”). ity to conceive or bear offspring, BLACK'S LAW DICTIONARY 848 (9th ed.2009)—falls within that Because the first religious exemption under the definition. See Yindee v. CCH Inc., 458 F.3d 599, ADA parallels that of Title VII, it also wasn't (for 601 (7th Cir.2006) (“[S]terility ... assuredly is a the reasons set forth in Part II–A–1 if this opinion) ‘disability’ under the ADA.”). intended to be a blanket exemption for religious employers from application of the ADA. [8] To prevail on a claim of discrimination under the ADA, a plaintiff must demonstrate that “(1) *11 [9] The other ADA exemption offers more she is disabled within the meaning of the ADA, (2) promise for the Diocese: it provides that a religious she is qualified to perform the essential functions of organization can require its employees to conform the job, either with or without reasonable accom- to the organization's religious tenets. 42 U.S.C. modation, and (3) she suffered an adverse employ- 12113(d)(2).This,theDiocesesays,isexactlywhat ment action because of her disability.” Hoppe v. it did, and then it chose not to renew Mrs. Herx's Lewis Univ., 692 F.3d 833, 838–839 (7th Cir.2012). teaching contract when she failed to comply with The Diocese says that even if Mrs. Herx could es- that requirement. If those turn out to be the facts, tablish those three elements, a claim of disability the Diocese will prevail on this claim. But the Dio- discrimination should fall once it is evident that the cese cites no authority for the proposition that a adverse employment decision was religiously judge can decide, as a factual matter at the sum- based. mary judgment stage, whether an adverse employment action was taken for failure to comply with an 1. ADA Exemptions exemption-approved requirement of compliance Like Title VII, the ADA contains two separate with tenets of the faith, or was taken instead be- provisions exempting religious entities from its cause of the employee's disability. coverage. The first exemption provides that a religious corporation, association, educational institu- Mrs. Herx is entitled to a chance to show that tion, or society isn't prohibited “from giving prefer- the Diocese's proffered justification wasn't its true

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reason for nonrenewing her contract—that her in- cese acted because of Mrs. Herx's choice of fertility fertility was. McDonnell Douglas, 411 U.S. at 804, treatment and not on any animus against infertility. 93 S.Ct. 1817. Mrs. Herx said at argument that discrimination 2. Permissible Inferences on this Record against the treatment for a disability is the same as Inquiry turns to whether Mrs. Herx has pointed discrimination against the disability itself. If she is to evidence that would allow a reasonable jury, correct on this point, it neutralizes at least part of viewing the evidence in her favor and drawing all the ADA. The statutory exemption already dis- permissible inferences in her favor, to find that her cussed says a religious organization can require em- infertility caused the Diocese not to renew her con- ployees to comply with the tenets of the faith, tract. At the summary judgment hearing, the court which would seem to mean that if the Diocese con- expressed the tentative view that Mrs. Herx hasn't siders in vitro fertilization to contravene the tenets carried that summary judgment burden, and Mrs. of the faith, it can forbid its employees from receiv- Herx asked for leave to submit additional authority ing in vitro fertilization. But if discrimination because the Diocese hadn't raised that argument. against in vitro fertilization is the same as discrim- The court granted that leave. ination against the disability (infertility) it's meant to treat, 42 U.S.C. § 12112(b)(6) would seem to If Mrs. Herx is correct that the Diocese never hold that even a religious organization couldn't pro- claimed entitlement to judgment because the record hibit in vitro fertilization because it would have a wouldn't allow an inference that her disability was a disparate impact on infertile people. If Mrs. Herx is reason for Diocese's decision (but would allow an right about this principle of law, the First Amend- inference of nonrenewal based on the in vitro treatment would move centrally into this litigation. ment, or the inference that it was based on her sex), the court should be very cautious about considering *12 But the court reads the law differently than the argument. But apart from its faith-based argu- Mrs. Herx does. Upon being granted permission to ments, the Diocese argued precisely what the court file post-argument supplemental authorities in sup- considered. Under the heading, “Herx has no evid- port of the proposition that discrimination against ence that the decision to not renew her teacher con- the treatment equals discrimination against the dis- tract was for anything other than Msgr. Kuzmich ability being treated, she submitted three case cita- felt she had violated Church teachings,” the Dio- tions, all district court opinions. Two of those cases FN2 cese argued: dealt with employers who thought the treatments employees were receiving made the employ- ... Herx stated that she has no reason to believe ees disabled within the meaning of the ADA. In that Msgr. Kuzmich's decision regarding the non- Haynes v. City of Montgomery, 2008 WL 695023 renewal of her contract was based on anything (M.D.Ala. Mar. 12, 2008),afirefighterwaseventu- other than that she violated Church teachings by ally discharged because his employer didn't think engaging in IVF and showed no remorse for hav- he could perform his duties while taking Lexapro, ing done so. That, in fact, was the basis for Msgr. which had been prescribed for his anxiety disorder. Kuzmich's decision along with the stated need to At the summary judgment stage, the district court hold teachers to the moral exemplar standard and held that a jury might find against the employer be- prevent the occurrence of scandal. Church teach- cause it hadn't made an individualized decision ings on IVF would apply regardless of any disab- with respect to the plaintiff and hadn't relied on cur- ility on Herx's part. rent medical knowledge or available objective evidence. Id. at *4. The Haynes court didn't hold that [10] The Diocese appears to be exactly right: the employer discriminated against the firefighter all the evidence in the record indicates that the Dio-

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on grounds of his anxiety disorder simply because VII religious exemptions don't bar Mrs. Herx's re- the employer didn't want him driving a fire truck covery, her complaint should be dismissed because FN3 while on Lexapro. Title VII is unconstitutional as applied. The Diocese maintains that to reject application of the In Gasser v. Ramsey, 125 F.Supp.2d 1 Title VII exemptions would produce the sort of (D.D.C.2000),theplaintiff,apoliceofficerwitha constitutionally prohibited inquiry into religious protein deficiency, had been prescribed a blood matters and values that the exemptions were de- thinner. The court understood that the employer signed to prevent, offending the Religion Clauses. confined the plaintiff to a desk job (which elimin- The court doesn't see it that way. ated his chances for overtime pay) because they feared that the plaintiff would bleed severely (due Courts recognize the necessity of avoiding ex- to the blood thinner he was taking) were he injured cessive entanglement and/or intrusion into religious on the streets. The court denied the motion for tenets. See, e.g., Rweyemamu v. Cote, 520 F.3d 198, judgment on the pleadings because the defendant 208 (4th Cir.2008) (acknowledging the distinction might have excluded the officer from a broader between the “ongoing government supervision of range of jobs than necessary. all aspects of employment” required by the NLRA and the “limited inquiry” entailed by discrimination Mrs. Herx's case is far different from Haynes statutes); Geary v. Visitation of Blessed Virgin and Gasser. In those cases, neither employer was Mary Parish Sch., 7F.3d324,331(3dCir.1993) said to have treated the employee differently be- (court determined it could adjudicate lay teacher's cause of the disability: an anxiety order or a protein ADEA claims “without the entanglement that deficiency. Instead, each employer acted adversely would follow were employment of clergy or reli- in the belief that the employees' medications made gious leaders involved”); Redhead v. Conference of them unfit for their jobs—a bad truck driver due to Seventh–day Adventists, 566 F.Supp.2d 125, 135 Lexapro or a police officer vulnerable to injury due (E.D.N.Y.2008) (“Although the validity of defend- to Coumadin.Effectively,eachemployeractedbe- ant's religious code may not be impugned, the al- cause it saw the treatment as creating a new disabil- legedly discriminatory application of such a code to ity. This summary judgment record carries no sup- lay employees is a proper subject of judicial scru- port for even a suspicion that the Diocese viewed in tiny.”); Smith v. Raleigh Dist. of North Carolina vitro fertilization as a “disability” within the mean- Conf. of United Methodist Church, 63 F.Supp.2d ing of the ADA, rather than as conduct that offen- 694, 718 (E.D.N.C.1999) (“Courts that have per- ded the precepts of the faith. mitted Title VII claims against religious institutions have done so because such claims could be determ- As already explained with respect to the Title ined without excessive entanglement with the reli- VII claim, a reasonable trier of fact could find that gious or ecclesiastical aspects of a given institu- the Diocese chose not to renew Mrs. Herx's contract tion.”). Courts also agree that recognition of the because of her gender or because of what the Dio- risk of governmental entanglement in religion cese viewed as immoral conduct. Under no view of prompted the development of the ministerial excep- the summary judgment record could a reasonable tion. See, e.g., Hosanna–Tabor Evangelical Luther- trier of fact find the Diocese acted due to a disabil- an Church and Sch. v. EEOC, ––– U.S. ––––, 132 ity-based animus against her infertility. The Dio- S.Ct. 694, 705–706, 181 L.Ed.2d 650 (2012) cese is entitled to judgment as a matter of law on (“Courts of Appeals have uniformly recognized the Mrs. Herx's disability discrimination claim. existence of a ‘ministerial exception,’ grounded in C. The First Amendment the First Amendment, that precludes application of *13 Finally, the Diocese argues that if the Title [Title VII and other employment discrimination

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laws] to claims concerning the employment rela- SO ORDERED. tionship between a religious institution and its ministers. We agree that there is such a ministerial ex- FN1. When Mrs. Herx told Ms. Guffey ception.”); Schleicher v. Salvation Army, 518 F.3d about her in vitro fertilization procedure, 472, 474–475 (7th Cir.2008) (noting that the minis- Ms. Guffey responded as follows: “Thank terial exception was devised as a way of avoiding you for sharing this with me. I appreciate government entanglement with religious affairs how difficult it was for you to come to this when it came to the employment of “ministers”); decision. I will continue to pray for you Adams v. Indiana Wesleyan Univ., No. and your husband. Keep me up to date. 3:09–CV–468, 2010 WL 2803077, at *9 (N.D.Ind. Take care and God bless, Sandra.” July 15, 2010) (“The ministerial exception to feder- FN2. The third case, Connolly v. First Per- al court jurisdiction is a crucially important legal sonal Bank, 623 F.Supp.2d 928 doctrine, designed to prevent the federal courts (N.D.Ill.2008),dealtwithanemployer's from becoming entangled in the internal affairs of a misuse of a pre-hire drug test under 42 church.”). U.S.C. § 12112(d)(3)(C),andseemsto The Diocese is understandably concerned about present nothing of help the decision in this the possibility of a judge or jury conducting its own case. secular analysis of Roman Catholic doctrine on in FN3. The Diocese made the same argu- vitro fertilization. That shouldn't happen. In the or- ments with respect to the ADA, but the dinary Title VII case, the employer points to a non- court needn't address those separately in discriminatory reason as the reason for the adverse light of the grant of summary judgment on employment action, and the plaintiff tries to prove the ADA claim. that she suffered the adverse action because of her sex, race, national origin, and so on. In the ordinary Title VII trial, the judge instructs the jury along N.D.Ind.,2014. these lines: “In deciding Plaintiff's claim, you Herx v. Diocese of Ft. Wayne-South Bend Inc. should not concern yourselves with whether De- --- F.Supp.3d ----, 2014 WL 4373617 (N.D.Ind.), fendant's actions were wise, reasonable, or fair. 124 Fair Empl.Prac.Cas. (BNA) 360, 30 A.D. Cases Rather, your concern is only whether Plaintiff has 1233 proved the Defendant [adverse employment action] him [because of race/sex]....” SEVENTH CIRCUIT END OF DOCUMENT FEDERAL JURY INSTRUCTIONS: CIVIL 3.07 (2010). The Diocese has given the court no reason to think a jury is likely to disobey that instruction in acaseinwhichareligiousemployerclaimstohave acted for religious reasons.

III. CONCLUSION *14 For all of these reasons, the court GRANTS the defendants' summary judgment motion with respect to the plaintiff's claim under the Americans with Disabilities Act, and DENIES the motion with respect to the plaintiff's claim under Title VII.

eral 92k1340 Clergy; Ministers United States Court of Appeals, 92k1340(2) k. Ministerial exception Sixth Circuit. in general. Most Cited Cases Alyce T. CONLON, Plaintiff–Appellant, First Amendment's Religion Clauses bar gov- v. ernment from interfering with religious group's de- INTERVARSITY CHRISTIAN FELLOWSHIP/ cision to fire one of its ministers. U.S.C.A. USA, Fred Bailey, And Marc Papai, Defend- Const.Amend. 1. ants–Appellees. [2] Civil Rights 78 1114 No. 14–1549. Argued: Dec. 3, 2014. 78 Civil Rights Decided and Filed: Feb. 5, 2015. 78II Employment Practices 78k1108 Employers and Employees Affected Background: Former employee brought action 78k1114 k. Exemptions. Most Cited Cases against evangelical campus mission and supervisors Evangelical campus mission was religious or- alleging gender-based discrimination, in violation ganization that could assert ministerial exception to of Title VII and Michigan's Elliot-Larsen Act. The federal employment discrimination laws, even United States District Court for the Western Dis- though group was not affiliated with any specific trict of Michigan, Gordon J. Quist,J.,13 F.Supp.3d denomination, where group's purpose was to ad- 782,dismissedcomplaint,andemployeeappealed. vance understanding and practice of Christianity in colleges and universities. Holdings: The Court of Appeals, Alice M. Batchelder,CircuitJudge,heldthat: [3] Civil Rights 78 1114 (1) mission was religious organization that could assert ministerial exception to federal employment 78 Civil Rights discrimination laws; 78II Employment Practices (2) employee who worked as “spiritual director” 78k1108 Employers and Employees Affected fell within scope of ministerial exception; and 78k1114 k. Exemptions. Most Cited Cases (3) ministerial exception could never be waived. Spiritual director for evangelical campus mission fell within scope of ministerial exception to Affirmed. employment discrimination laws, even though she did not have title of “minister,” and there was no Rogers,CircuitJudge,concurredandfiled evidence that she had to satisfy any rigorous re- opinion. quirements to earn ministerial title or that she had public role of interacting with community as am- West Headnotes bassador of faith, where part of her duties was to assist others to cultivate “intimacy with God and [1] Constitutional Law 92 1340(2) growth in Christ-like character through personal and corporate spiritual disciplines.” Civil Rights 92 Constitutional Law Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e et 92XIII Freedom of Religion and Conscience seq.; M.C.L.A. § 37.2101 et seq. 92XIII(B) Particular Issues and Applications 92k1327 Religious Organizations in Gen- [4] Constitutional Law 92 947

92 Constitutional Law Establishment and Free Exercise Clauses apply 92VI Enforcement of Constitutional Provisions to states through Fourteenth Amendment by incor- 92VI(B) Estoppel, Waiver, or Forfeiture poration. U.S.C.A. Const.Amends. 1, 14. 92k947 k. Waiver in general. Most Cited Cases [7] Civil Rights 78 1114

Constitutional Law 92 1340(3) 78 Civil Rights 78II Employment Practices 92 Constitutional Law 78k1108 Employers and Employees Affected 92XIII Freedom of Religion and Conscience 78k1114 k. Exemptions. Most Cited Cases 92XIII(B) Particular Issues and Applications Individual supervisors may claim ministerial 92k1327 Religious Organizations in Gen- exception to employment discrimination laws when eral personally sued for discrimination as agents of reli- 92k1340 Clergy; Ministers gious employer. 92k1340(3) k. Employment discrimination. Most Cited Cases *830 ARGUED: Katherine Smith Kennedy,Pin- Ministerial exception to employment discrim- sky, Smith, Fayette & Kennedy, LLP, Grand Rap- ination laws is structural limitation imposed on ids, Michigan, for Appellant. Michelle K. Terry, government by First Amendment's Religion American Center For Law & Justice, Franklin, Ten- Clauses that can never be waived. U.S.C.A. nessee, for Appellees. ON BRIEF: Katherine Const.Amend. 1. Smith Kennedy,Pinsky,Smith,Fayette& Kennedy, LLP, Grand Rapids, Michigan, for Ap- [5] Constitutional Law 92 1340(3) pellant. Michelle K. Terry, David A. French, Abi- gail A. Southerland, American Center For Law & 92 Constitutional Law Justice, Franklin, Tennessee, Edward L. White III, 92XIII Freedom of Religion and Conscience American Center For Law & Justice, Ann Arbor, 92XIII(B) Particular Issues and Applications Michigan, for Appellees. David A. Cortman, Kevin 92k1327 Religious Organizations in Gen- H. Theriot,AllianceDefendingFreedom, eral Lawrenceville, Georgia, David J. Hacker,Alliance 92k1340 Clergy; Ministers Defending Freedom, Folsom, California, Kimberlee 92k1340(3) k. Employment dis- Wood Colby,CenterForLaw&ReligiousFreedom crimination. Most Cited Cases Of *831 The Christian Legal Society, Springfield, First Amendment's ministerial exception to em- Virginia, for Amici Curiae. ployment discrimination laws can be asserted as defense against state law claims. U.S.C.A. Before: BATCHELDER and ROGERS,Circuit Const.Amends. 1, 14. FN* Judges; BECKWITH, District Judge. [6] Constitutional Law 92 3851

92 Constitutional Law FN* The Honorable Sandra S. Beckwith, 92XXVII Due Process United States District Judge for the South- 92XXVII(A) In General ern District of Ohio, sitting by designation. 92k3848 Relationship to Other Constitu- BATCHELDER,J.,deliveredtheopinionofthe tional Provisions; Incorporation court in which BECKWITH, D.J., joined, and RO- 92k3851 k. First Amendment. Most GERS,J.,joinedinpart.ROGERS,J.(pg.12),de- Cited Cases livered a separate opinion concurring in parts I, II,

III.E, and the result. ligious organization. We conduct hiring without regard to race, color, ancestry, national origin, citizenship, age, sex, marital status, parental OPINION status, membership in any labor organization, ALICE M. BATCHELDER,CircuitJudge. political ideology, or disability of an otherwise Alyce Conlon worked at InterVarsity Christian qualified individual. The status of [IVCF] as an Fellowship/USA (“IVCF”) in Michigan as a spiritu- Equal Opportunity Employer does not prevent the al director, involved in providing religious counsel organization from hiring staff based on their reli- and prayer. She informed IVCF that she was con- gious beliefs so that all staff share the same reli- templating divorce, at which point IVCF put her on gious commitment. paid—and later unpaid—leave. When her marital www. intervarsity. org/ jobs (last visited Jan. 9, situation continued to worsen despite counseling ef- 2015). The website states that all employees must forts, IVCF terminated her employment. Conlon annually reaffirm their agreement with IVCF's Pur- sued IVCF and her supervisors in federal district pose Statement and Doctrinal Basis. The website court under Title VII and Michigan law. IVCF includes: “Pursuant to the Civil Rights Act of 1964, claimed the First Amendment's ministerial excep- Section 702 (42 U.S.C. [§ ] 2000e[-]1(a))[,] [IVCF] tion to employment laws. The court dismissed the has the right to, and does, hire only candidates who case, holding the ministerial exception bars all of agree with [IVCF's] Statement of Agreement: Pur- Conlon's claims. We AFFIRM. pose and Doctrinal Basis.” I. FACTS AND PROCEDURAL HISTORY *832 Alyce T. Conlon began working for IVCF InterVarsity Christian Fellowship/USA in 1986. In 1988, Conlon married David Roy Re- (“IVCF”) is “an evangelical campus mission imer. From 2004 to 2011, Conlon was a “spiritual serving students and faculty on college and uni- director” or “Spiritual Formation Specialist” for versity campuses nationwide,” whose “vision is to IVCF staff members, and obtained a certification in see students and faculty transformed, campuses re- Spiritual Direction. Her duties included assisting newed and world changers developed.” IVCF's pur- others to cultivate “intimacy with God and growth pose “is to establish and advance at colleges and in Christ-like character through personal and cor- universities witnessing communities of students and porate spiritual disciplines.” faculty who follow Jesus as Savior and Lord: grow- ing in love for God, God's Word, God's people of In March of 2011, Conlon and her husband every ethnicity and culture and God's purposes in were considering divorce, and, as required by IVCF the world.” IVCF “believes in the sanctity of mar- policy, she informed her supervisor of the situation. riage and desires that all married employees honor At that time, and until May 2011, Defendant Marc their marriage vows.” It is part of IVCF's policy Papai was Conlon's supervisor. Defendant Fred that “[w]here there are significant marital issues, Bailey was her acting supervisor from May 2011 [IVCF] encourages employees to seek appropriate until her termination. Papai put Conlon on paid help to move towards reconciliation” and IVCF re- leave to attempt to repair her marriage, as author- serves the right “to consider the impact of any sep- ized by IVCF policy. Both Papai and Bailey were aration/divorce on colleagues, students, faculty, and actively involved with this effort. According to the donors.” IVCF's website includes the following re- complaint, Conlon's repeated requests to return to garding employment opportunities: work were denied. Conlon also claims that in an email dated September 12, 2011, “Bailey stated InterVarsity Christian Fellowship/USA is both an knowing falsehoods to several individuals that equal opportunity employer and a faith-based re- Plaintiff did not make efforts to reconcile her mar-

riage and put her on unpaid leave.” IVCF termin- Healthcare, Inc., 474 F.3d 223 (6th Cir.2007),inso- ated Conlon on December 20, 2011, which Conlon far as Hollins is consistent with it—informs our alleges was for “failing to reconcile her marriage.” analysis here. At that time Conlon was still married to Reimer. Conlon claims that two or more similarly situated In Hosanna–Tabor, the Supreme Court ex- male employees divorced their spouses during their amined the ministerial exception, first, in the con- employment, but were not disciplined or termin- text of the Framers' historical concerns in crafting ated. In January 2012, Reimer filed for divorce the Establishment Clause, such as English laws un- against Conlon. der which the English monarch became the head of the national church and wielded authority to ap- Shortly after her termination, Conlon filed a point its ministers. Hosanna–Tabor, 132 S.Ct. at complaint with the Equal Employment Opportunity 702 (citing Supremacy Act of *833 1534, 26 Hen. Commission (“EEOC”) and the Michigan Depart- 8, ch. 1; Act in Restraint of Annates, 25 Hen. 8, ch. ment of Civil Rights. On or about July 17, 2013, 20 (1534)). The Court then reviewed similar laws EEOC gave Conlon a right to sue letter that also in- and practices in America's colonial history and the formed her that EEOC would not be filing suit. early years after the Constitution was adopted. See Conlon filed suit in the United States District Court id. at 703–04.“Itwasagainstthisbackgroundthat for the Western District of Michigan on October 8, the First Amendment was adopted. Familiar with 2013, and filed an amended complaint on Decem- life under the established Church of England, the ber 19, 2013, alleging violations of Title VII of the founding generation sought to foreclose the possib- Civil Rights Act of 1964, codified at 42 U.S.C. § ility of a national church.” Id. at 703.Afterreview- 2000e et seq., for gender discrimination, and of ing its own jurisprudence regarding governmental Michigan's Elliot–Larsen Act, Mich. Comp. Laws § interference in churches' selection of clergy and 37.2101 et seq. Defendants filed a motion to dis- resolution of disputes over church properties, id. at miss this amended complaint under Federal Rule of 704–05,theSupremeCourtturnedtothequestion Civil Procedure 12(b)(6) on January 9, 2014, assert- of whether “this freedom of a religious organization ing the ministerial exception as an affirmative de- to select its ministers is implicated by a suit al- fense. The district court granted the motion on leging discrimination in employment,” id. at 705. April 3, 2014, and this timely appeal followed. The Court explicitly agreed with the many courts of appeals that had long recognized “the existence of a II. STANDARD OF REVIEW ‘ministerial exception,’ grounded in the First We review de novo “a district court's order Amendment, that precludes application of [Title granting a motion to dismiss pursuant to Federal VII and other employment discrimination laws] to Rule of Civil Procedure 12(b)(6),” construing the claims concerning the employment relationship complaint in the light most favorable to the plaintiff between a religious institution and its ministers.” and accepting all factual allegations as true. Mik v. Id. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 156–57 (6th Cir.2014). The ministerial exception is an affirmative defense that plaintiffs should first assert in a motion III. ANALYSIS to dismiss under Federal Rule of Civil Procedure FN1 This is the first opportunity since the Supreme 12(b)(6). Id. at 709 n. 4. And in Hollins, we Court's decision in Hosanna–Tabor Evangelical said that “[i]n order for the ministerial exception to Lutheran Church & School v. EEOC, ––– U.S. bar an employment discrimination claim, the em- ––––, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012),for ployer must be a religious institution and the em- this court to address the “ministerial exception.” ployee must have been a ministerial employee.” That case—and our decision in Hollins v. Methodist

Hollins, 474 F.3d at 225. whether IVCF is an organization that can assert the ministerial exception. We conclude that IVCF can FN1. This abrogated our ruling in Hollins claim this protection. It is undisputed *834 that In- that the ministerial exception deprives a terVarsity Christian Fellowship is a Christian or- court of subject-matter jurisdiction, ganization, whose purpose is to advance the under- Hollins, 474 F.3d at 225,whichaplaintiff standing and practice of Christianity in colleges and should raise under Federal Rule of Civil universities. It is therefore a “religious group” un- Procedure 12(b)(1). der Hosanna–Tabor. Indeed, we have previously held that a Methodist hospital is “a clearly religious A. organization” for First Amendment purposes. The parties agree that the ministerial exception Hollins, 474 F.3d at 224.Althoughthechurchin would typically apply to federal employment-law Hosanna–Tabor was part of the Missouri Synod de- claims. The dispute arises because Conlon claims nomination within Lutheranism, and the hospital in IVCF waived the exception. However, whether the Hollins was specifically United Methodist within exception attaches at all is a pure question of law Methodism, the ministerial exception's applicability which this court must determine for itself. So be- does not turn on its being tied to a specific denom- fore considering waiver, we must consider whether inational faith; it applies to multidenominational the ministerial exception would otherwise apply to and nondenominational religious organizations as these facts. well. As we held in Hollins, “in order to invoke the [1] The Supreme Court in Hosanna–Tabor exception, an employer need not be a traditional re- framed the issue in a religious-employment lawsuit ligious organization such as a church, diocese, or as “whether the Establishment and Free Exercise synagogue, or an entity operated by a traditional re- Clauses of the First Amendment bar such an action ligious organization.” Id. at 225.“[A]religiously when the employer is a religious group and the em- affiliated entity” is one whose “mission is marked ployee is one of the group's ministers.” by clear or obvious religious characteristics.” Hosanna–Tabor, 132 S.Ct. at 699.ThetwoReli- Shaliehsabou v. Hebrew Home of Greater Wash., gion Clauses “often exert conflicting pressures,” Inc., 363 F.3d 299, 310 (4th Cir.2004) (applying the Cutter v. Wilkinson, 544 U.S. 709, 719, 125 S.Ct. ministerial exception to a Jewish nursing home). 2113, 161 L.Ed.2d 1020 (2005),suchthattherecan That is clearly the case for IVCF, with not only its often be “internal tension ... between the Establish- Christian name, but its mission of Christian min- ment Clause and the Free Exercise Clause,” Tilton istry and teaching. v. Richardson, 403 U.S. 672, 677, 91 S.Ct. 2091, 29 We must also determine whether the ministeri- L.Ed.2d 790 (1971) (plurality opinion). “Not so al exception protects against the claim at issue here. here. Both Religion Clauses bar the government Both of the cases directly on point, Hosanna–Tabor from interfering with the decision of a religious and Hollins, involved plaintiffs raising claims un- group to fire one of its ministers.” Hosanna–Tabor, der the Americans with Disabilities Act, 42 U.S.C. 132 S.Ct. at 702.“TheEstablishmentClausepre- §12101et seq. (“ADA”). Hosanna–Tabor, 132 vents the Government from appointing ministers, S.Ct. at 701; Hollins, 474 F.3d at 224, 227.Butin and the Free Exercise Clause prevents it from inter- Hosanna–Tabor, the Supreme Court framed the is- fering with the freedom of religious groups to select sue as whether there is a ministerial exception that their own.” Id. at 703. precludes the application of “Title VII ... and other B. employment discrimination laws” to claims of dis- [2] Unlike the defendant in Hosanna–Tabor, crimination against a religious institution by its IVCF is not a church. So we must first determine ministers, and held that there is. Hosanna–Tabor,

132 S.Ct. at 705.Sowemustconsiderwhetherthe training followed by a formal process of commis- ministerial exception applies to Conlon's sex- sioning.” Id. at 707.WhileIVCFpointsoutthat discrimination claim, which absent the exception Conlon earned a certification in “spiritual direc- would be a facially plausible claim under Title VII. tion,” we are not provided with any details to justi- See 42 U.S.C. § 2000e–2(a)(1). fy comparing this to the rigorous requirements Perich satisfied to earn her ministerial title, ones In Hosanna–Tabor, the Court addressed a that clearly set her apart from laypersons. Therefore Lutheran church school's decision to terminate we conclude that factor has not been demonstrated Cheryl Perich, a teacher and “commissioned minis- here. ter” who the school believed was not able to perform her duties because of a disability. See Third, Conlon's use of the ministerial title. The Hosanna–Tabor, 132 S.Ct. at 705–08.TheCourt Court suggested that Perich's position as a school held that the ministerial exception precluded the teacher interacting with students and parents, and courts from entertaining claims that Perich's em- occasional worship leader in large chapel assem- ployment had been terminated because of her disab- blies, was a form of holding herself out to the pub- ility or in retaliation for her filing a complaint with lic as a minister of the Lutheran Church–Missouri the EEOC alleging disability discrimination. Synod. See id. at 705–08. Here, however, nothing Though the Court did not “adopt a rigid formula for in the pleadings suggests that Conlon had the sort deciding when an employee qualifies as a minis- of public role of interacting with the community as ter,” id. at 707,theCourtidentifiedfourfactorsthat an ambassador of the faith that rises to the level of led it to conclude Perich was a minister covered by Perich's leadership role within her church, school, the exception: “[1] the formal title given Perich by and community. Therefore this factor is not present, the Church, [2] the substance reflected in that title, either. [3] her own use of that title, and [4] the important religious functions she performed for the Church,” Fourth, the important religious functions Con- id. at 708.Weexaminethosefactorshere. lon performed for the religious organization. Most of Perich's work was secular in nature, id. at 708, [3] First, the formal title. Unlike Perich, Con- but included “leading others toward Christian ma- lon does not have the title of “minister.” Her briefs turity” and “teaching faithfully the Word of God, describe her as a “spiritual director,” and IVCF's the Sacred Scriptures, in its truth and purity.” App. brief refers to her as a “Spiritual Formation Special- 48, quoted in Hosanna–Tabor, 132 S.Ct. at 708. ist.” We hold that either title is sufficient. “Pastor,” Here, part of Conlon's duties was to assist others to “reverend,” “priest,” “bishop,” or “rabbi” are cultivate “intimacy with God and growth in Christ- clearly religious leadership titles no different from like character through personal and corporate spir- “minister.” Beyond that, courts need only determ- itual disciplines.” That is a ministerial function, and ine whether the wording of the title conveys a reli- so we hold the fourth factor is satisfied. gious—as opposed to secular—*835 meaning. The word “spiritual” is such an identifying term. Two of the four Hosanna–Tabor factors are clearly present in Conlon's former position. The Second, the substance reflected in the title Court expressly declined to rule upon whether the “Spiritual Formation Specialist” or “spiritual direct- exception would apply in the absence of one or or.” The Hosanna–Tabor Court noted the formal more of those factors. Hosanna–Tabor, 132 S.Ct. at seminary training that Perich received in theology, 708.JusticeThomas'sconcurringopinionin and the multi-step process whereby she was inves- Hosanna–Tabor looks solely to a broad reading of ted as a “commissioned minister.” Id. at 699.Her the first factor, positing that whenever a religious title “reflected a significant degree of religious employer identifies an individual as a minister,

courts should “defer to a religious organization's bor, 663 F.2d 686, 690 (6th Cir.1981) (quoting good-faith understanding of who qualifies as its Curtis Publ'g Co. v. Butts, 388 U.S. 130, 145, 87 minister.” Id. at 710 (Thomas, J., concurring). S.Ct. 1975, 18 L.Ed.2d 1094 (1967)), quoted in Justice Alito—joined by Justice Kagan—instead Hollins, 474 F.3d at 226.ButHosanna–Tabor fore- posits that the ministerial exception “should apply closes such waiver, abrogating that aspect of to any ‘employee’ who [1] leads a religious organ- Hollins. “Both Religion Clauses bar the govern- ization, [2] conducts worship services or important ment from interfering” with a religious organiza- religious ceremonies or rituals, or serves as a mes- tion's decisions as to who will serve as ministers. senger or [4] teacher of its faith.” Id. at 712 (Alito, Hosanna–Tabor, 132 S.Ct. at 702 (emphasis ad- J., concurring). That is essentially a restatement of ded). “[T]he Establishment Clause ... prohibits gov- the fourth factor. We need not decide in this case ernment involvement in ecclesiastical matters.” Id. whether either of those factors alone suffices to in- at 704 (emphasis added). It is “ impermissible for voke the ministerial exception, but we do hold that the government to contradict a church's determina- where both factors—formal title and religious function of who can act as its ministers.” Id. (emphasis tion—are present, the ministerial exception clearly added). This reasoning-along with other precedents applies. IVCF may assert the ministerial exception the Court cites, see, e.g., id. (collecting cases)-does regarding Conlon's former position. not allow for a situation in which a church could explicitly waive this protection. One of our sister The parties point to no historical example in circuits reached the same conclusion prior to which the founding generation permitted any arm Hosanna–Tabor. See Tomic v. Catholic Diocese of of the federal government—including the judi- Peoria, 442 F.3d 1036, 1042 (7th Cir.2006) ciary—to order a religious organization to accept or (holding “the ministerial exception ... is not subject retain in a ministerial position a person whom the to waiver or estoppel”), abrogated on other organization deemed unfit for ministry. To the con- grounds by Hosanna–Tabor, 132 S.Ct. 694.Nor trary, the historical practice has always been that can such a waiver be reconciled with the Supreme the government cannot dictate to a religious organ- Court's rationale. “Requiring a church to accept or ization who its *836 spiritual leaders would be. “By retain an unwanted minister, or punishing a church forbidding the ‘establishment of religion’ and guar- for failing to do so, intrudes upon more than a mere anteeing the ‘free exercise thereof,’ the Religion employment decision. Such action interferes with Clauses ensured that the new Federal Govern- the internal governance of the church.” Id. at 705 ment—unlike the English Crown—would have no (emphasis added). The Court's clear language re- role in filling ecclesiastical offices.” Id. at 703 cognizes that the Constitution does not permit (majority opinion). private parties to waive the First Amendment's ministerial exception. This constitutional protection is C. not only a personal one; it is a structural one that [4] Conlon argues that her claims against IVCF categorically prohibits federal and state govern- are not barred because IVCF waived the ministerial ments from becoming involved in religious leader- exception. Conlon is wrong. The ministerial excep- ship disputes. tion is a structural limitation imposed on the government by the Religion Clauses, a limitation that D. can never be waived. [5][6] We turn next to the question of whether the First Amendment's ministerial exception can be It is true that in Hollins, we held that the minis- asserted as a defense against state law claims. We terial exception can be waived, but only if “the hold that it can. First, the ministerial exception is evidence [is] ‘clear and compelling’ that such rights recognized under Michigan law. Weishuhn v. Cath- were waived.” Sambo's Restaurants, Inc. v. Ann Ar-

olic Diocese of Lansing, 279 Mich.App. 150, 756 ministerial exception. They cannot be held liable. N.W.2d 483, 497 (2008) (“[T]he ministerial excep- Nothing in federal court or Michigan court preced- tion exists in Michigan. This exception bars dis- ent suggests that Bailey and Papai cannot claim the crimination claims where religious employers em- ministerial exception when personally sued for dis- ploy or have employed plaintiffs with religious pos- crimination as the agents of a religious employer. itions.”). But even if it were not, because the Estab- Holding the individual decision maker liable for the lishment and Free Exercise Clauses apply to the very employment decision for which the organiza- States through the Fourteenth Amendment by incor- tion cannot be held liable would vitiate both the poration, the federal right would defeat any purpose and the effect of the ministerial exception. Michigan statute that, as applied, violates the First Amendment. Indeed, in a footnote, the Supreme F. Court suggested it approved of the Hosanna–Tabor Because IVCF is a religious organization and plaintiff's admission that if the ministerial excep- Conlon was a ministerial employee, IVCF's de- tion applied in her case regarding federal law, the cision to terminate her employment cannot be chal- exception would also bar her claims under lenged under federal or state employment discrim- Michigan state law. Hosanna–Tabor, 132 S.Ct. at ination laws. It matters not whether the plaintiff is 709 n. 3 (“Perich does not dispute that if the minis- claiming a specific violation under Title VII or any terial exception *837 bars her retaliation claim un- other employment discrimination statute. The Es- der the ADA, it also bars her retaliation claim under tablishment and Free Exercise Clauses do not per- Michigan law.”). mit federal or state courts to adjudicate such matters when the defendant properly asserts the minis- Moreover, the Establishment Clause applies terial exception as an affirmative defense. As the with the same force against the States through the Supreme Court concluded: Fourteenth Amendment, Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947), The interest of society in the enforcement of as does the Free Exercise Clause, Cantwell v. Con- employment discrimination statutes is un- necticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. doubtedly important. But so too is the interest of 1213 (1940).AndHosanna–Tabor based its hold- religious groups in choosing who will preach ing fashioning the ministerial exception in part on their beliefs, teach their faith, and carry out their Kedroff v. St. Nicholas Cathedral of Russian Ortho- mission. When a minister who has been fired dox Church in N.A., 344 U.S. 94, 73 S.Ct. 143, 97 sues her church alleging that her termination was L.Ed. 120 (1952), see Hosanna–Tabor, 132 S.Ct. at discriminatory, the First Amendment has struck 704–05,which,althoughnotaministerialexception the balance for us. The church must be free to case per se, was a case in which the Court held that choose those who will guide it on its way. the First Amendment invalidated the state law at is- Hosanna–Tabor, 132 S.Ct. at 710. sue, see Kedroff, 344 U.S. at 116–19, 73 S.Ct. 143. Therefore the claims brought under Michigan's Elli- IV. CONCLUSION ott–Larsen Act fare no better than those brought un- The Religion Clauses' ministerial exception der Title VII. See U.S. Const. art. VI, cl. 2 bars federal and state employment-law claims (Supremacy Clause). against all the defendants here. Accordingly, we AFFIRM the judgment of the district court. E. [7] We turn finally to whether the individual ROGERS,CircuitJudge,concurring. supervisors—Bailey and Papai—can be held liable IjoinpartsI,IIandIII.Eofthemajorityopin- under Michigan law because they cannot claim the ion, and concur in the result.

Essentially for the reasons given in parts III.A and B of the majority opinion, IVCF can assert the ministerial exception, and that exception protects against the claim asserted by Conlon.

Conlon's sole claim on appeal is under Title VII. Under the Constitution, Title VII does not extend to Conlon's claim. IVCF can no more “agree” to have Title *838 VII extend to claims precluded by the ministerial exception than an employer could “agree” to have Title VII apply to some new kind of discrimination, or to have Title VII apply to entities otherwise not covered by Title VII, or to have Title VII apply to non-employment relationships. This inability of parties to expand the scope of statutory causes of action is sufficient to reject Con- lon's so-called waiver argument.

Our decision today does not require us to decide whether a religious employer could enter into a judicially-enforceable employment contract with a ministerial employee not to fire that employee on certain grounds (such as pregnancy). Judicial enforcement of such a contract might unduly interfere with the independence of religious institutions, but barring religious institutions from offering such a legally binding guarantee might make it harder for some religious institutions to hire the people they want. Conlon in this case now disavows any contractual argument. Thus, to the extent that any analysis in the majority opinion might be read to govern non-Title VII employer obligations, such analysis is not necessary to our judgment.

Finally, with respect to part III.D of the majority opinion, it is sufficient to say that Michigan law recognizes the ministerial exception, without analyzing the extent to which the federal Constitution would require Michigan to do so even if Michigan did not.

C.A.6 (Mich.),2015. Conlon v. InterVarsity Christian Fellowship 777 F.3d 829, 126 Fair Empl.Prac.Cas. (BNA) 7

END OF DOCUMENT

CANON 15: Of the General BoardBoard of ExamininExaminingg ChaplainsChaplains Sec. 1 . There shall be a General Board of Examining Chaplains, Membership. consisting of four Bishops, six Priests with pastoral cures or in specialized ministries, six members of accredited Seminary faculties or of other educational institutions, and six Lay Persons. The members of the Board shall be elected by the House of Bishops and confirmed by the House of Deputies, one one-half-half of the members in each of the foregoing categories being elected and confirmed at each regular meeting of the General Convention for a term of two Convention periods. They shall take office at the adjournment of the meeting of the General Convention at which their elections are confirmed, and shall serve until the adjournment of the second regularregula meeting therethereafter.fter. No memmemberber sshallhall serve morem than 12 years consecutively. Additionally, the Presiding Bishop, in consultation with the Chair of the Board, may appoint up to four other members for a term. The House of Bishops, at any special meeting that may be held prior to the next meeting of the General Convention, shall fill for the unexpired portion of the term any vacancy that may have arisen in the interim. The Board shall elect its To elect own Chair and Secretary, and shall have the powerpowe to constitute officers. committees necessary for the carrying on of its worwork.k. Sec. 2 (a) The General Board of Examining Chaplains, with General professional assistance, shall prepare at least annually a General Ordination Ordination Examination covering the subject matter set forth in Examination. Canon III.8.5(g), and shall conduct, administer, and evaluate it in respect to those Candidates for Holy OrdersOrde who have been identifieddentiffied to the Board by their several Bishops. (b) Whenever a Candidate has not demonstrated proficiency in any one or more of the canonical areas covered by the General Ordination Examination, the General Board of Examining Chaplains shall recommend to the Commission on Ministry, and through the Commission to the Board of Examining Chaplains, if one exists, of the Diocese to whichw the Candidate belongs, how the proficiencies might be attained. Sec. 3 . The General Board of Examining Chaplains may prepare, in May prepare each Convention period, guidelines based upon the subjects guidelines. contained in Canon IllIll.8.4(e), which guidelines shall be available to all persons concerned. Sec. 4 . The General Board of Examining Chaplains shall promptly Board to make report, in writing, to the Candidate, to the Candidate Candidate's s Bishop and to report on the Dean of the Seminary the Candidate is attending, the results of examinations. all examinations held by them, together with the examinations themselves, whether satisfactory or unsatisfactory, making separate reports upon each person examined. The Bishop shall transmit these reports to the Standing Committee and to the Commission. Notwithstanding the results of the examinations, in no case shall the StandingStanding Committee recommend a Candidate for Ordination under

123 CANONS III.15.5, III.16.1 TITLE III

Canon III.8 until the Standing Committee has received from the Commission on Ministry a certificate to the effect that the Candidate has demonstrateddemonstra a proficiency in all subjects required by Canon III. 8.5(g)5(g) and (h). The report of the Board shall be made in the following form: Form of To ______(Candidate), the Right Reverend ______, , Report. Bishop of ______(or in the absence of the Bishop the Standing Committee of) ______: : (Place) ______(Date) _____ To the Dean of (Place) ______(Date) _____ We, having been assigned as examiners of A.B., hereby testify that we have examined A.B. upon the subject matter prescribed in Canon III.7. Sensible of our responsibility, we give our judgment as follows: (Here specify the proficiency of A.B. in the subject matter appointed, oro any deficiency therein, as made apparent by the examination.ex (Si(Signed)gned) ______Shall report also Sec. 5 . The General Board of Examining Chaplains shall make a to Convention. report concerning its work to each regular meeting of the General Convention, and in years between meetings of theth General Convention shall mamakeke a report to the House of Bishops. CANON 16: Of the Board for Transition Ministry Membership. Sec. 1 (a) There shall be a Board for Transition Ministry of the General Convention consisting of twelve members, four of whom shall be Bishops, four of whom shall be Presbyters or Deacons, and four of whom shall be Lay Persons. Apportionment. (b) The Bishops shall be appointed by the Presiding Bishop. The Priests or Deacons and Lay Members shall be appointed by the President of the House of Deputies. All appointments to the Board shall be subject to the confirmation of the General Convention. Terms. (c) The Members shall serve terms beginning with the adjournment of the meeting of the General Convention at which their appointments are confirmed, and ending with the adjournment of the second regular meeting thereafter. The members shall not serve successive terms. (d) At each regular meeting of the General Convention one-half of the membership shall be appointed to serve full terms. Vacancies. (e) Vacancies shall be filled by appointment by the Presiding Bishop or by the President of the House of Deputies, as appropriate. Such appointments shall be for the remaining unexpired portion of the members' terms, and, if a regular meeting of the General Convention intervenes, appointments for terms extending beyond such meetings shall be subject to confirmation of the General Convention. Members appointed to fill the vacancies shall not thereby be disqualified from appointment to full terms thereafter.

124 CANONS III.1.1-3, III.2.1-5

TITLE III MINISTRY

CANON 1: Of the Ministry of All Baptized Persons Sec. 1. Each Diocese shall make provision for the affirmation and Responsibility development of the ministry of all baptized persons, including: of Diocese. (a) Assistance in understanding that all baptized persons are called to minister in Christ's name, to identify their gifts with the help of the Church and to serve Christ's mission at all times and in all places. (b) Assistance in understanding that all baptized persons are called to sustain their ministries through commitment to life-long Christian formation. Sec. 2 . No person shall be denied access to the discernment process Access to for any ministry, lay or ordained, in this Church because of race, discernment color, ethnic origin, national origin, sex, marital status, sexual process. orientation, gender identity and expression, disabilities or age, except as otherwise provided by these Canons. No right to licensing, ordination,ordination, or election is hereby established. Sec. 3. The provisions of these Canons for the admission of Equal applica- Candidates for the Ordination to the three Orders: Bishops, Priests bility. and Deacons shall be equally applicable to men and women. CANON 2: Of Commissions on Ministry Sec. 1. In each Diocese there shall be a Commission on Ministry Each Diocese ("Commission") consisting of Priests, Deacons, if any, and Lay to have a Persons. The Canons of each Diocese shall provide for the number Commission. of members, terms of office, and manner of selection to the Commission. Sec. 2. The Commission shall advise and assist the Bishop: To assist the (a) In the implementation of Title III of these Canons. Bishop. (b) In the determination of present and future opportunities and needs for the ministry of all baptized persons. (c) In the design and oversight of the ongoing process for recruitment, discernment, formation for ministry, and assessment of readiness therefor. Sec. 3. The Commission may adopt rules for its work, subject to the May adopt approval of the Bishop; Provided that they are not inconsistent with rules. the Constitution and Canons of this Church and of the Diocese. Sec. 4. The Commission may establish committees consisting of members and other persons to report to the Commission or to act on its behalf. Sec. 5. The Bishop and Commission shall ensure that the members Education and of the Commission and its committees receive ongoing education training. and training for their work.

67 CANON I.17.5-6 TITLE I

(1) is a communicant; (2) is recorded as being in good standing; (3) has been confirmed or received by a Bishop of this Church or a Bishop in communion with this Church. Upon acknowledgment that a member who has received such a certificate has been enrolled in another congregation of this or another Church, the Member of the Clergy in charge or Warden issuing the certificate shall remove the name of the person from the parish register. Recorded in (b) The Member of the Clergy in charge or Warden of the Register. congregation to which such certificate is surrendered shall record in the parish register the information contained on the presented certificate of membership, and then notify the Member of the Clergy in charge or Warden of the congregation which issued the certificate that the person has been duly recorded as a member of the new congregation. Whereupon the person's removal shall be noted in the parish register of the congregation which issued the certificate. (c) If a member of this Church, not having such a certificate, desires to become a member of a congregation in the place to which he or she has removed, that person shall be directed by the Member of the Clergy in charge of the said congregation to procure a certificate from the former congregation, although on failure to produce such a certificate through no fault of the person applying, appropriate entry may be made in the parish register upon the evidence of membership status sufficient in the judgment of the Member of the Clergy in charge or Warden. (d) Any communicant of any Church in communion with this Church shall be entitled to the benefit of this section so far as the same can be made applicable. Rights of Laity. Sec. 5 . No one shall be denied rights, status or access to an equal place in the life, worship, and governance of this Church because of race, color, ethnic origin, national origin, marital status, sex, sexual orientation, gender identity and expression,ex disabilities or age, except as otherwise specified by Canons. Refusal of Holy Sec. 6. A person to whom the Sacraments of the Church shall have Communion. been refused, or who has been repelled from the Holy Communion under the rubrics, or who has been informed of an intention to refuse or repel him or her from the Holy Communion under the rubrics, may appeal to the Bishop or Ecclesiastical Authority. A Priest who refuses or repels a person from the Holy Communion, or who communicates to a person an intent to repel that person from the Holy Communion shall inform that person, in writing, within fourteen days thereof of (i) the reasons therefor and (ii) his or her right to appeal to the Bishop or Ecclesiastical Authority. No Member of the Clergy of this Church shall be required to admit to the Sacraments a person so refused or repelled without the written direction of the Bishop or Ecclesiastical Authority. The Bishop or Ecclesiastical Authority may in certain circumstances see fit to

58 Page 1 879 F.Supp.2d 1375 (Cite as: 879 F.Supp.2d 1375)

231HXIII Wages and Hours 231HXIII(B) Minimum Wages and Overtime United States District Court, Pay S.D. Florida. 231HXIII(B)6 Actions Mauricio ALTMAN, Plaintiff, 231Hk2383 Evidence v. 231Hk2385 Presumptions and Bur- STERLING CATERERS, INC., Jonathan Rapp, den of Proof Defendants. 231Hk2385(5) Exemptions 231Hk2385(6) k. In general. Case No. 11–21829–CIV. Most Cited Cases July 17, 2012. Adefendantmustproveapplicabilityofany Background: Purported employee of kosher cater- urged Fair Labor Standards Act (FLSA) overtime ing company brought action against company and exemptions and district court will construe applic- its owner, alleging overtime and minimum wage vi- ability of exemptions narrowly against defendant. olations under Fair Labor Standards Act (FLSA). Fair Labor Standards Act of 1938, § 13(a)(1), 29 Parties cross-moved for summary judgment. U.S.C.A. § 213(a)(1).

Holdings: The District Court, Jonathan Goodman, [2] Labor and Employment 231H 2387(9) United States Magistrate Judge, held that: 231H Labor and Employment (1) fact issues precluded summary judgment with 231HXIII Wages and Hours respect to independent contractor exemption; 231HXIII(B) Minimum Wages and Overtime (2) fact issues existed with respect to executive ex- Pay emption; 231HXIII(B)6 Actions (3) assuming ministerial exemption existed under 231Hk2383 Evidence FLSA, it did not apply. 231Hk2387 Weight and Sufficiency Defendants' motion denied; plaintiff's motion 231Hk2387(8) Exemptions granted in part and denied in part. 231Hk2387(9) k. In general. Most Cited Cases West Headnotes Defendant employers must prove applicability of Fair Labor Standards Act (FLSA) overtime ex- [1] Labor and Employment 231H 2251 emption by clear and affirmative evidence. Fair Labor Standards Act of 1938, § 13(a)(1), 29 231H Labor and Employment U.S.C.A. § 213(a)(1). 231HXIII Wages and Hours 231HXIII(B) Minimum Wages and Overtime [3] Labor and Employment 231H 2232 Pay 231HXIII(B)3 Exemptions 231H Labor and Employment 231Hk2251 k. Strict or liberal con- 231HXIII Wages and Hours struction of exemptions. Most Cited Cases 231HXIII(B) Minimum Wages and Overtime Pay Labor and Employment 231H 2385(6) 231HXIII(B)2 Persons and Employments Within Regulations 231H Labor and Employment 231Hk2231 Employees Included

231Hk2232 k. In general. Most ment Discrimination, Actions Involving Cited Cases 170Ak2498 k. Fair Labor Standards Act cases; wages and hours regulations. Most Cited Labor and Employment 231H 2235 Cases Genuine issues of material fact existed as to 231H Labor and Employment nature and degree of control of alleged employer, a 231HXIII Wages and Hours kosher catering company, over manner in which 231HXIII(B) Minimum Wages and Overtime work was to be performed, and as to degree of per- Pay manency and duration of working relationship 231HXIII(B)2 Persons and Employments between company and rabbinic monitor provided Within Regulations by third-party kosher certification and monitoring 231Hk2234 Independent Contractors company, precluding summary judgment on issue 231Hk2235 k. In general. Most of whether independent contractor exemption pre- Cited Cases cluded monitor's overtime claims against company Fair Labor Standards Act (FLSA) applies to and its owner under Fair Labor Standards Act employees but does not apply to independent con- (FLSA). Fair Labor Standards Act of 1938, § 1 et tractors. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq.; 29 C.F.R. § seq., 29 U.S.C.A. § 201 et seq. 500.20(h)(4). [4] Labor and Employment 231H 2235 [6] Labor and Employment 231H 2262 231H Labor and Employment 231H Labor and Employment 231HXIII Wages and Hours 231HXIII Wages and Hours 231HXIII(B) Minimum Wages and Overtime 231HXIII(B) Minimum Wages and Overtime Pay Pay 231HXIII(B)2 Persons and Employments 231HXIII(B)3 Exemptions Within Regulations 231Hk2253 Executive and Adminis- 231Hk2234 Independent Contractors trative Employees 231Hk2235 k. In general. Most 231Hk2262 k. Managers, super- Cited Cases visors, etc. Most Cited Cases Determining whether individual is employee or Ultimate inquiry for application of Fair Labor independent contractor for Fair Labor Standards Standards Act's (FLSA) executive overtime exemp- Act (FLSA) purposes does not depend on isolated tion is whether plaintiff's “primary duty” was factors; determination is based on “underlying eco- “management.” Fair Labor Standards Act of 1938, nomic realities” as exposed by circumstances of §13(a)(1),29 U.S.C.A. § 213(a)(1). whole activity. Fair Labor Standards Act of 1938, § 1etseq.,29 U.S.C.A. § 201 et seq.; 29 C.F.R. § [7] Labor and Employment 231H 2255 500.20(h)(4). 231H Labor and Employment [5] Federal Civil Procedure 170A 2498 231HXIII Wages and Hours 231HXIII(B) Minimum Wages and Overtime 170A Federal Civil Procedure Pay 170AXVII Judgment 231HXIII(B)3 Exemptions 170AXVII(C) Summary Judgment 231Hk2253 Executive and Adminis- 170AXVII(C)2 Particular Cases trative Employees 170Ak2497 Employees and Employ- 231Hk2255 k. Definitions and tests

of status in general. Most Cited Cases proval constituted power to hire and fire, preclud- Employer must satisfy both “salary basis” test ing summary judgment as to whether employee was and “primary duties” test to demonstrate that an exempt executive for purposes of his overtime employee qualifies for Fair Labor Standards Act's claims against company and its owner under Fair (FLSA) executive overtime exemption. Fair Labor Labor Standards Act (FLSA). Fair Labor Standards Standards Act of 1938, § 13(a)(1), 29 U.S.C.A. § Act of 1938, § 13(a)(1), 29 U.S.C.A. § 213(a)(1); 213(a)(1); 29 C.F.R. § 541.700. 29 C.F.R. §§ 541.100, 541.602(a), 541.700.

[8] Labor and Employment 231H 2264(1) [10] Labor and Employment 231H 2255

231H Labor and Employment 231H Labor and Employment 231HXIII Wages and Hours 231HXIII Wages and Hours 231HXIII(B) Minimum Wages and Overtime 231HXIII(B) Minimum Wages and Overtime Pay Pay 231HXIII(B)3 Exemptions 231HXIII(B)3 Exemptions 231Hk2253 Executive and Adminis- 231Hk2253 Executive and Adminis- trative Employees trative Employees 231Hk2264 Salaried Status 231Hk2255 k. Definitions and tests 231Hk2264(1) k. In general. of status in general. Most Cited Cases Most Cited Cases Fair Labor Standards Act (FLSA) regulation Payment of hourly wage is not payment on requiring satisfaction of three factors for an em- “salary basis” within meaning of Fair Labor Stand- ployee to be bona fide executive exempt from ards Act (FLSA) regulations pertaining to executive FLSA's overtime provisions is similar to former overtime exemption unless minimum guaranteed tests, namely, the “long test” and the “short test,” predetermined number of paid hours exists. Fair and the case law analyzing former tests still applies. Labor Standards Act of 1938, § 13(a)(1), 29 Fair Labor Standards Act of 1938, § 13(a)(1), 29 U.S.C.A. § 213(a)(1); 29 C.F.R. §§ 541.602(a), U.S.C.A. § 213(a)(1); 29 C.F.R. § 541.100. 541.700. [11] Labor and Employment 231H 2227 [9] Federal Civil Procedure 170A 2498 231H Labor and Employment 170A Federal Civil Procedure 231HXIII Wages and Hours 170AXVII Judgment 231HXIII(B) Minimum Wages and Overtime 170AXVII(C) Summary Judgment Pay 170AXVII(C)2 Particular Cases 231HXIII(B)2 Persons and Employments 170Ak2497 Employees and Employ- Within Regulations ment Discrimination, Actions Involving 231Hk2226 Employers Included 170Ak2498 k. Fair Labor Standards 231Hk2227 k. In general. Most Act cases; wages and hours regulations. Most Cited Cited Cases Cases Assuming that ministerial exemption existed Genuine issues of material fact existed as to under Fair Labor Standards Act (FLSA), kosher ca- whether kosher catering company's pay to purpor- tering company was for-profit commercial caterer, ted employee, a rabbinic monitor provided by third- not religious institution, and thus ministerial ex- party kosher certification and monitoring company, emption did not immunize company from comply- satisfied “salary basis” test, and as to whether em- ing with FLSA's wage and hour requirements; al- ployee's ability to replace himself with Rabbi's ap- though company provided kosher food to Jewish

community center, it also provided non-kosher lawsuit. Altman seeks damages for Defendants' al- food, and thus it was more akin to restaurant leged failure to pay him overtime and minimum serving special food to customers than religious in- wages pursuant to the FLSA. [ECF No. 1]. stitution. Fair Labor Standards Act of 1938, § 1 et seq., 29 U.S.C.A. § 201 et seq. A mashgiach is “a person who certifies that food is kosher.” Shaliehsabou v. Hebrew Home of *1377 Daniel T. Feld, Jamie H. Zidell,J.H.Zidell, Greater Wash., Inc., 247 F.Supp.2d 728, 729, n. 2 P.A., Miami Beach, FL, for Plaintiff. (D.Md.2003).Amashgiach “ensures that the laws of Kashruth are enforced, and that the community's Alvin Ernest Entin,Entin&DellaFera,FortLaud- religious trust is protected. Kashruth is compliance erdale, FL, for Defendants. with Jewish kosher laws. Compliance with the laws of Kashruth depends on the Mashgiach's integrity ORDER DENYING DEFENDANTS' SUMMARY and expertise. Additionally, a Mashgiach is essen- JUDGMENT MOTION AND GRANTING IN tial, may be required on the premises at all times, PART AND DENYING IN PART PLAINTIFF'S must be present to check all products brought into SUMMARY JUDGMENT MOTION the establishment and must also be present during JONATHAN GOODMAN,UnitedStatesMagis- the preparation of food.” Id. (emphasis added). An trate Judge. on-site mashgiach like Altman is “a rabbinic monit- This matter is before the Court on the Motion or provided by a third-party kosher certification and of Defendants, Sterling Caterers, Inc. and Jonathan monitoring agency.” Ahava Dairy Prods. Corp. v. Rapp, for Summary Judgment, and the Motion of Swiss Heritage Cheese, Inc., No. CV–02–4045, Plaintiff, Mauricio Altman, for Summary Judgment. 2002 WL 31988778, at *1 (E.D.N.Y. Dec. 27, [ECF Nos. 39; 43]. In addition to reviewing the mo- 2002). tions and memoranda, the Court also held a hearing *1378 Sterling is a catering company that on the summary judgment motions, which are provides kosher food at the David Posnack Jewish largely mirror image motions seeking rulings on Community Center in Davie, Florida. Sterling either side of the same issues. provides kosher meals in accordance with OK certi- For the reasons outlined below, the Court fication. Circle K is a national agency which super- denies Defendants' summary judgment motion in vises kosher establishments. As the mashgiach, Alt- its entirety, grants the unopposed portions of man oversees the food preparation to make sure Plaintiff's summary judgment motion, grants that items entering the Jewish Community Center Plaintiff's summary judgment motion concerning comply with OK's standards and that there is suffi- the so-called ministerial exemption and denies all cient separation between the dairy, meat and non- remaining summary judgment requests for relief. dairy food items. Rabbi Golowinski is the local representative for Circle K and helps procure mash- I. INTRODUCTION AND FACTUAL BACK- giachs. GROUND This is an action alleging overtime and minim- Defendants seek summary judgment in their fa- um wage violations under the Fair Labor Standards vor and raise the following arguments: (1) Altman Act, 29 U.S.C. § 201, et seq., (the “FLSA”). Alt- is an independent contractor, not an employee, and man brought this claim against Sterling, a kosher is therefore not subject to the FLSA, (2) Altman is catering company, and Jonathan Rapp, an owner not subject to the FLSA because he falls under the and officer of Sterling. Altman worked as a mash- executive exemption, and (3) the mashgiach posi- giach at Sterling during the times relevant to this tion falls within the so-called “ministerial exemption” to the federal employment laws.

After Defendants filed their summary judgment necessary. motion, Plaintiff filed his own summary judgment motion (in addition to contesting Defendants' mo- All other summary judgment issues raised by tion). Plaintiff seeks summary judgment on five the parties are contested, however, and there are grounds: he seeks rulings that (1) Sterling is an genuine issues of material fact that preclude the “enterprise” under the FLSA, (2) Rapp is an em- entry of summary judgment in any party's favor on ployer for FLSA purposes, (3) Altman is a Sterling these remaining issues. Therefore, the Court must employee for FLSA purposes, (4) Altman is not an deny Defendants' summary judgment motion and executive exempt under the FLSA, and (5) the the remaining parts of Plaintiff's summary judg- FLSA has no ministerial exemption but, even if ment motion. such an exemption existed under the statute, it is in- *1379 II. DISCUSSION applicable to this case. As noted above, the main issue in both motions Defendants do not object to the first two is the applicability of the three FLSA exemptions grounds in Plaintiff's summary judgment motion raised by the parties. The Court will therefore ad- listed above. In their Response [ECF No. 46], De- dress these issues in turn. fendants advise that they do not dispute “that the a. Rule 56 enterprise is subject to the statute for purposes of Federal Rule of Civil Procedure 56(a) provides non-exempt employees” and that “Jonathan Rapp that a court shall grant summary judgment “if the would be an employe[r] under the statute to an em- movant shows that there is no genuine dispute as to ployee of Sterling.” However, Defendants argue any material fact and the movant is entitled to judg- that Plaintiff never “qualified [as] an employee in ment as a matter of law.” All evidence considered the first instance” and, if he were an employee, then on a motion for summary judgment must be he would be exempt under the FLSA and the Court “viewed in a light most favorable to the nonmoving should grant summary judgment to Defendants. party.” Beal v. Paramount Pictures Corp., 20 F.3d Because Defendants do not contest the first two 454, 458 (11th Cir.1994) (citing United States v. aspects of Plaintiff's summary judgment motion and Four Parcels of Real Prop., 941 F.2d 1428, 1437 because Plaintiff's motion supports those two (11th Cir.1991)). grounds, the Court grants summary judgment in b. Exemptions Generally to the FLSA Plaintiff's favor on those two points. For the reas- [1][2] The Eleventh Circuit summarized the ap- ons below, the Court also grants summary judgment plication of FLSA overtime exemptions as follows: to Plaintiff in part and denies it to Defendants as to the alleged ministerial exemption because the Court The employer bears the burden of proving that determines it is inapplicable as a matter of law in FN1 an employee is exempt from overtime payments. this case. Thus, if Plaintiff establishes at trial Atlanta Prof'l Firefighters Union, Local 134 v. that he was Defendants' employee (and no exemp- City of Atlanta, 920 F.2d 800, 804 (11th tions apply, such as those for independent contract- Cir.1991).FLSAprovisionsaretobeinterpreted ors or executive supervisors), then Defendants will liberally in the employee's favor and its exemp- be responsible for any FLSA violations (if any) that tions construed narrowly against the employer. occurred during Plaintiff and Defendants' employ- See Birdwell v. City of Gadsden, 970 F.2d 802, ee-employer relationship. 805 (11th Cir.1992).

FN1. As discussed below, the Court is not Rock v. Ray Anthony Int'l, LLC, 380 Fed.Appx. ruling on whether the exemption could ap- 875, 877 (11th Cir.2010) (emphasis added). Thus, a ply in the FLSA context because it is not

defendant must prove the applicability of any urged factors as a guide: exemptions and a court will construe the applicability of exemptions narrowly against the employer. (1) the nature and degree of the alleged employ- Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th er's control as to the manner in which the work is Cir.2004).Inaddition,theDefendantemployers to be performed; must prove the applicability of an exemption by (2) the alleged employee's opportunity for profit clear and affirmative evidence. Klinedinst v. Swift or loss depending upon his managerial skill; Invs., Inc., 260 F.3d 1251, 1254 (11th Cir.2001). (3) the alleged employee's investment in equip- i. Multiple Employers Sharing Common Control ment or materials required for his task, or his em- Plaintiff cites law to support the proposition ployment of workers; that multiple employers can share common control of an employee. [ECF No. 43 at 6]. Nonetheless, (4) whether the service rendered requires a spe- Plaintiff does not explicitly argue that Sterling cial skill; shares control of Plaintiff with another employer and does not request summary judgment specific- (5) the degree of permanency and duration of the ally on this issue. Id. Defendants do not address this working relationship; issue in their motion or memoranda, although they do suggest that Circle K is arguably Plaintiff's sole (6) the extent to which the service rendered is an employer. [ECF Nos. 39; 46]. integral part of the alleged employer's business.

However, the potential issue of multiple em- Freund, 185 Fed.Appx. at 783; see also 29 ployers sharing common control is indirectly relev- C.F.R. § 500.20(h)(4) (adopting the economic real- ant to the competing summary judgment motions as ities test and the guiding factors as articulated by it relates to the critical issue of which employer(s) the federal courts to determine employment status controlled Altman and ultimately whether he was under the FLSA). Defendants' employee or an independent contractor. [5] In this case, there are genuine disputes over ii. Independent Contractor Exemption material issues of fact concerning the independent [3][4] The FLSA applies to employees but does contractor exemption. Defendants emphasize facts not apply to independent contractors. Rodilla v. showing that they had no (1) control over the man- TFC–RB, LLC, No. 08–21352, 2009 WL 3720892, ner in which Plaintiff's work was performed and at *15 (S.D.Fla. Nov. 4, 2009); see also Freund v. that Circle K had the final say on how Plaintiff per- Hi–Tech Satellite, Inc., 185 Fed.Appx. 782, 782 formed his duties. [ECF No. 39 at 7]. But Plaintiff (11th Cir.2006) (affirming determination that an in- points to facts which he argues show that Defend- dividual was an independent contractor and there- ants had control because they, in effect, determined fore exempt from the FLSA). Determining whether what time Plaintiff had to be at work and scheduled an individual is an employee or an independent his hours. [ECF No. 43 at 7]. In addition, Plaintiff contractor does not depend on isolated factors; the notes that Defendants were responsible for paying determination is based on the *1380 “underlying him and kept track of the hours he worked. [ECF economic realities” as exposed by the No. 43–1 at ¶ 23]. Defendants underscore the fact “circumstances of the whole activity.” Rutherford that neither Defendant could fire Altman because it Food Corp. v. McComb, 331 U.S. 722, 727, 730, 67 was up to Circle K and Rabbi Golowinski to decide S.Ct. 1473, 91 L.Ed. 1772 (1947). whether to terminate him.

The Eleventh Circuit has adopted several Defendants did not address (2) Altman's oppor-

tunity for profit or loss or (3) investment in equip- to the heart of this concern. See Freund, 185 ment. [ECF No. 39 at 7]. Plaintiff notes that he was Fed.Appx. at 783. An employee is most dependent merely an hourly employee with no opportunity for on whoever controls the nature of his work and the profit or loss. [ECF No. 43 at 8]. He also points out permanency of his position. The core question of that he did not (3) invest in any equipment. [ECF dependency is unresolved and genuinely at issue. No. 43 at 9]. Thus, the Court denies both motions in regards to the independent contractor exemption. On the other hand, Defendants underscore that (4) Plaintiff received instructions and training from iii. Executive Exemption Circle K. [ECF No. 39 at 7]. Plaintiff relies on facts [6][7] The overtime requirements of the FLSA establishing that he did not have a special degree or are inapplicable to an employee “employed in a license and was dependent on the Rabbi's expertise bona fide executive, administrative, or professional to kosher an oven because Plaintiff was unable to capacity.” 29 U.S.C. § 213(a)(1).Theultimatein- do this. [ECF No. 43 at 9]. quiry for application of the executive exemption is whether Plaintiff's “primary duty” was Defendants stress that there was no (5) perman- “management.” Brillas v. Bennett Auto Supply, Inc., ency of the working relationship because Circle K 675 F.Supp.2d 1164, 1168 (S.D.Fla.2009).Accord- originally placed Plaintiff in the job and controlled ing to Department of Labor (“DOL”) Regulations, Plaintiff's continued employment. [ECF No. 39 at the employer must satisfy both a “salary basis” test 7]. But Plaintiff responds by arguing that the rela- and a “primary duties” test to demonstrate that an tionship was permanent because it was maintained employee qualifies for this exemption. Hogan v. over a period of years. [ECF No. 43 at 10]. Allstate Ins. Co., 361 F.3d 621, 625–26 (11th Cir.2004) (adopting the salary/duties tests from the Defendants do not address whether Plaintiff DOL regulations as the tests for whether the exec- was (6) an integral part of the employer's business. utive exemption applies); 29 C.F.R. § 541.200. [ECF No. 39 at 7]. Plaintiff argues that his position was integral because he maintained Defendants' 1. Salary Basis Test kosher status, which was required for Defendants to [8] An employee satisfies the “salary basis” operate as a kosher food provider. [ECF No. 43 at test if he is “compensated on a salary or fee basis at 10]. arateofnotlessthan$455perweek.”29 C.F.R. § 541.200.Paymentisona“salarybasis”iftheem- *1381 After reviewing the record, the Under- ployee receives “a predetermined amount constitut- signed concludes that fundamental factual disputes ing all or part of the employee's compensation, concerning factors (1) and (5), at a minimum, war- which amount is not subject to reduction because of rant a denial of both motions for summary judg- variations in the quality or quantity of the work per- ment on the competing employee and independent formed.” 29 C.F.R. § 541.602(a).Paymentofan contractor arguments. To be sure, these six factors hourly wage is not payment on a “salary basis” are a guide, are not exhaustive and no single factor within the meaning of the regulations unless a minis dispositive. Muller v. AM Broadband, LLC, No. imum guaranteed predetermined number of paid 07–60089, 2008 WL 708321, at *2 (S.D.Fla. Mar. hours exists. Magyar v. Davey Tree Expert Co., No. 14, 2008). 8:08–1181, 2009 WL 3241981, at *2 (M.D.Fla. While all of these factors are not in dispute, the Oct. 5, 2009). overriding concern in determining employment [9] In this case, the only payment records filed status is economic dependence and the Court con- with the Court are unclear and illegible. [ECF No. cludes that the dispute over factors (1) and (5) goes 39–1]. Moreover, the Court cannot determine from

those records whether Plaintiff had a guaranteed cludes that there are material issues of fact about minimum predetermined number of paid hours or if whether Plaintiff's pay satisfied the “salary basis” he simply received an hourly wage. Id. Neither the test in both summary judgment motions. illegible records nor the memoranda submitted by Because the Court finds that material issues of the parties establish the specific hours Plaintiff FN3 worked, or why some weeks he received two pay- fact exist in both motions (i.e., the Court can- ments on the same day. Id. Defendants' Motion for not determine whether the “salary basis” test was Summary Judgment argues, relying on these pay- conclusively satisfied or unsatisfied), the Court ment records and Mr. Rapp's Affidavit, that pay- must deny both motions on the executive exemp- FN2 ment was $600 per week or $15 an hour. [ECF tion issue unless this Court also finds conclusively *1382 No. 39 at 8]. It is not clear whether this that the Defendant employers failed to sufficiently means there was a $600 minimum with a rate of demonstrate that they prevail on the “primary duty” $15 per hour for any work above 40 hours per week test. See Hogan, 361 F.3d at 625. If this Court finds or that the pay rate was $600 per week unless that the “primary duty” test can be resolved in Plaintiff worked less than 40 hours in which case he Plaintiff's favor, then the Court can deny summary would be paid $15 per hour, or some other mean- judgment for the Defendants and grant summary ing. judgment to the Plaintiff on the executive exemption because the salary/duty test is conjunctive. See FN2. Defendants rely on an outdated legal id. In other words, Defendants must establish both standard when they state that the tests used standards in order to obtain the exemption. for the executive exemption are the “short test” and the “long test” and that the min- FN3. Moreover, the Court reviewed the imum required salary is $250 per week. OK Kosher Certification Caterer Certifica- [ECF Nos. 39 at 7–8; 46 at 8]. The current tion Agreement [ECF No. 51–1], which minimum salary requirement is $455 and was submitted after the hearing and was the current test, although similar to the old not specifically addressed in either motion. test, is the “primary duty test.” 29 C.F.R. While the certification agreement does §§ 541.602, 541.700; see also Brillas, 675 mention a salary, this does not clear up the F.Supp.2d at 1167 (outlining the history of murkiness surrounding the salary/hourly the executive exemption tests). wage issue because the actual payment records remain unclear. Furthermore, the Relying on Rabbi Golovvinski's Deposition, Plaintiff is not a party to this agreement Plaintiff argues that payment was $15 an hour with and therefore is not bound by it. Finally, it no minimum guaranteed pay, but does not cite to is unclear whether the parties to the written any specific, undisputed facts to support the reques- contract had a unique business purpose be- ted conclusion that there was no minimum guaran- hind their use of the term salary, and the teed pay. [ECF No. 42 at 11]. In his Motion for Court cannot conclusively determine if the Summary Judgment, Plaintiff makes the same argu- term is binding for FLSA exemption pur- ment he made in response to Defendants' motion. poses. [ECF No. 43 at 12]. Defendants, in their Response to Plaintiff's Motion for Summary Judgment, make 2. Primary Duty Test the same arguments they made in their summary [10] The DOL regulations require satisfaction judgment motion. [ECF No. 46 at 9]. Taking the of three factors for an employee to be a bona fide facts in a light most favorable to the non-moving executive (the list begins at number two because parties on the mirror image motions, the Court con- the first factor is the salary basis test). The regulations state that the employee must be one:

(2) Whose primary duty is management of the en- Rabbi Golowinski had the only keys to Sterling's terprise in which the employee is employed or of freezers—and work therefore could not start acustomarilyrecognizeddepartmentorsubdivi- without him. [ECF Nos. 39 at 8; 46 at 9], Third, sion thereof; Plaintiff had the authority to cease all work at Ster- ling. [ECF Nos. 39 at 9; 46 at 9]. Fourth, Plaintiff (3) Who customarily and regularly directs the had the power to replace himself with the Rabbi's work of two or more employees; and approval, a power unique to his position. [ECF Nos. 39 at 9; 46 at 9]. (4) Who has the authority to hire or fire other employees or whose suggestions *1383 and recom- FN4. Defendants rely on the outdated mendations as to the hiring, firing, advancement, “short test” which is similar to the current promotion or any other change of status of em- test. [ECF Nos. 39 at 8–9; 46 at 8–10]; see ployees are given particular weight. Brillas, 675 F.Supp.2d at 1167 (outlining the history of the executive exemption 29 C.F.R. § 541.100 (2004).Thisregulationis tests). similar to the former tests (the “long test” and the “short test”) and the case law analyzing the former Plaintiff, in his Response to Defendants' Mo- tests still applies. Brillas, 675 F.Supp.2d at 1167. tion for Summary Judgment and in his Motion for Summary Judgment, argues that the “primary du- AcourtinthisDistricthasrecognizedaddition- ties” test is not satisfied because he does not have al factors under the former tests, including: the fre- the authority to hire or fire other employees. [ECF quency of exercise of discretion, relative freedom Nos. 42 at 12; 43 at 13]. But the material issue of from supervision and the relationship between the whether Plaintiff's ability to replace himself with employee's salary and the wages of the people per- the Rabbi's approval constitutes the power to hire forming the non-exempt work that the employee and fire as required by the DOL regulations is still performed. Id. That court held the analysis for the open and the parties have not cited authority to con- “primary duty” test should not focus on whether clusively resolve this question. Accordingly, the Plaintiff spent most of his time on managerial du- Court denies both motions' requests to decide ties; the test should instead focus on whether whether Plaintiff is an exempt executive. Plaintiff's managerial duties constituted the primary value Defendants placed on Plaintiff, Id.; see iv. Ministerial Exemption Moore v. Tractor Supply Co., 352 F.Supp.2d 1268, Neither the Eleventh Circuit nor any of its dis- 1272–79 (S.D.Fla.2004) (finding an employee ex- trict courts have ruled (at least in published opin- empt although he spent 90% of his time on non- ions) on whether there is a ministerial exemption to exempt work). the overtime requirements of the FLSA. The Elev- enth Circuit did recognize a ministerial exemption In this case, Defendants, in their Motion for in a different context: when a Title VII suit would Summary Judgment and in their Response to have led to excessive government entanglement Plaintiff's Motion for Summary Judgment, argue FN4 with religion, as prohibited by the Establishment that Plaintiff satisfied the “primary duties” test Clause of the First Amendment. Gellington v. for the following reasons. [ECF Nos. 39 at 8–9; 46 Christian Methodist Episcopal Church, Inc., 203 at 9–10]. First, Plaintiff's duty to oversee Kashruth F.3d 1299, 1303–04 (11th Cir.2000). and the requirement that he oversee all food production for Sterling qualifies as management of the *1384 The parties agree and concede, as they enterprise. [ECF Nos. 39 at 8; 46 at 9]. Second, must, that there is no ministerial exemption in the Plaintiff managed the enterprise because he and text of the FLSA. Consequently, Defendants must

confront the fundamental rules governing FLSA Specifically, the Field Operations Handbook, Wage cases—which provide that exemptions must be con- and Hour Division, U.S. Department of Labor, § strued strictly and narrowly, given the broad re- 10b03 (1993) provides in relevant part: medial purpose underlying the Act. See generally Patel v. Quality Inn S., 846 F.2d 700, 702 (11th Religious, charitable and nonprofit organiza- Cir.1988) (explaining that the definitional frame- tions, school institutions, volunteer workers, work—a broad definition of employee followed by members of religious orders. specific and limited exceptions—strongly suggests (a) There is no special provision in the FLSA that Congress intended an all encompassing defini- which precludes an employer-employee relation- tion of the term “employee” that would include all ship between a religious, charitable or nonprofit workers not specifically exempted). organization and persons who perform work for [11] But the Court need not grapple with the such organization. For example, a church or reli- core issue of whether the ministerial exemption ap- gious order may operate an establishment to print plies to FLSA cases. Instead, the Court can decide books, magazines, or other publications and em- the competing summary judgment motions by con- ploy a regular staff who do this work as a means cluding that the ministerial exemption (if it applies of livelihood. In such cases there is an employer- at all) is inapposite here because Sterling is a for- employee relationship for purposes of the Act. profit commercial caterer, not a religious institu- Likewise, the same Field Operations Handbook tion. section (in sub-paragraph (b)) also provides that Defendants rely upon Shaliehsabou v. Hebrew “[p]ersons such as nuns, monks, priests, lay broth- Home of Greater Washington, Inc., 363 F.3d 299 ers, ministers, deacons and other members of reli- (4th Cir.2004),wheretheappellatecourtrelied gious orders who serve pursuant to their religious upon the ministerial exemption to affirm a sum- obligations in the schools, hospitals, and other in- mary judgment in favor of a predominantly Jewish stitutions operated by their church or religious nursing home in an FLSA action brought by a order shall not be considered to be ‘employees.’ ” mashgiach seeking unpaid overtime wages. Al- (emphasis added). though the court there used the primary duties test *1385 With these principles in mind, the Un- to determine the scope of the ministerial exemption dersigned notes that Sterling is a caterer, not areli- it found existed under the FLSA, it also limited its gious order. And Altaian is not arabbiormember holding by adopting several principles which re- of a religious order. strict the ministerial exemption: (1) the exemption applies only to employment relationships between Thus, even if the Eleventh Circuit were to re- religious institutions and their ministers; (2) the ex- cognize a ministerial exemption in FLSA emption does not apply to commercial activities of cases—even though it appears nowhere in the stat- religious institutions; and (3) the exemption does utory text and doing so may be contrary to the well- not apply to the religious employees of secular em- established rule that exemptions are construed nar- ployers or the secular employees of religious em- rowly—Defendants here would need to prove both ployers. Hebrew Home, 363 F.3d at 307. that Plaintiff's duties are ministerial and that Ster- ling Caterers is a religious institution. Even the The written guidelines of the United States De- Fourth Circuit Court of Appeals, which decided partment of Labor, the federal agency tasked with Hebrew Home, held in a prior case it relied upon in enforcing the FLSA, suggest that no ministerial ex- Hebrew Home, that “the ordinary commercial activ- emption would immunize Sterling from complying ities of religious organizations are covered by the with the wage and hour requirements of the statute.

Act.” Dole v. Shenandoah Baptist Church, 899 tube ... and attached by some Jews to the F.2d, 1389, 1394, n. 6 (4th Cir.1990) (affirming doorpost of the home.” Hebrew Home, 363 judgment against church-operated schools for F.3d at 301. FLSA violations for teachers and nonprofessional support staff); see also Brock v. Wendell's Wood- Unlike the Hebrew Home defendant, the de- work, Inc., 867 F.2d 196 (4th Cir.1989) (holding fendant here—Sterling, a for-profit catering corpor- that the FLSA applies to a masonry contractor ation—cannot be said to have the characteristics the which employed children under arrangement with Fourth Circuit deemed significant in concluding religious group). that the defendant there—a non-profit religious and charitable corporation—was a religious institution. Defendants have not demonstrated that Ster- Although Sterling provides kosher food to the Jew- ling, a for-profit catering business corporation, is a ish Community Center, it also provides non-kosher religious institution. In fact, their summary judg- food. As a for-profit catering company providing ment motion does not persuasively show how Ster- both kosher and non-kosher food, Sterling is more ling is a religious institution or how Altman's duties akin to a restaurant serving special food to custom- are ministerial. The same can be said for their ers than a religious institution. Therefore, assuming identical arguments on the ministerial exemption that a ministerial exemption exists under the found in their response in opposition to Plaintiff's FLSA—which the Court is not decid- mirror image summary judgment motion. ing—Defendants cannot meet the first prong of the standard used in the Fourth Circuit because Sterling Assuming that the limited ministerial exemp- is not a religious institution. tion found by the Fourth Circuit in Hebrew Home would also be recognized by the Eleventh Circuit or *1386 Because the Court has determined that Supreme Court, comparing the factors relied upon Sterling is not a religious institution, a conclusion there to the facts here yields significant differences which precludes application of the ministerial ex- which account for different results. emption, the Court need not analyze whether Ster- ling has established the other requirement for the In Hebrew Home, the court found Hebrew exemption—that Altman performed ministerial du- Home to be a religious institution because the by- ties for Sterling. laws defined it as a religious and charitable non- profit corporation, the Home maintained a rabbi on III. CONCLUSIONS its staff, the Home employed a mashgiach and For the reasons stated above, the Court: FN5 placed a mezuzah on every resident's doorpost. The Hebrew Home also maintained a synagogue on 1. Grants summary judgment in Plaintiff's fa- its premises and held twice-daily religious services vor on the issue of whether Sterling is an enterprise conducted by an ordained rabbi, who served as a and whether Sterling and Rapp are employers full-time employee. (assuming that Altman is an employee and not an independent contractor, an issue the Court specific- FN5. That Court relied upon Random ally refrains from deciding). House Webster's Unabridged Dictionary 1212 (2d ed.1998) to provide the definition 2. Grants summary judgment in Plaintiff's fa- of a mezuzah: “a parchment scroll in- vor on the issue of whether the ministerial exemp- scribed on one side with the Biblical pas- tion applies to the instant case. The Court con- sages Deut. 6:4–9 and 11:13–21 and on the cludes, without determining if such an exemption other side with the word Shaddai (a name exists at all in FLSA cases, that the exemption is in- applied to God), inserted in a small case or applicable here because Sterling is not a religious

institution.

3. Denies all other summary judgment requests contained in the competing motions.

S.D.Fla.,2012. Altman v. Sterling Caterers, Inc. 879 F.Supp.2d 1375

END OF DOCUMENT

United States Code Annotated Title 42. The Public Health and Welfare Chapter 126. Equal Opportunity for Individuals with Disabilities (Refs & Annos) Subchapter I. Employment (Refs & Annos)

42 U.S.C.A. § 12113

§ 12113. Defenses

Effective: January 1, 2009 Currentness

(a) In general

It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.

(b) Qualification standards

The term “qualification standards” may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.

Notwithstanding section 12102(4)(E)(ii) of this title, a covered entity shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.

(d) Religious entities

(1) In general

This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

(e) List of infectious and communicable diseases

(1) In general

The Secretary of Health and Human Services, not later than 6 months after July 26, 1990, shall--

(A) review all infectious and communicable diseases which may be transmitted through handling the food supply;

(B) publish a list of infectious and communicable diseases which are transmitted through handling the food supply;

(D) widely disseminate such information regarding the list of diseases and their modes of transmissability 1 to the general public.

Such list shall be updated annually.

(2) Applications

In any case in which an individual has an infectious or communicable disease that is transmitted to others through the handling of food, that is included on the list developed by the Secretary of Health and Human Services under paragraph (1), and which cannot be eliminated by reasonable accommodation, a covered entity may refuse to assign or continue to assign such individual to a job involving food handling.

(3) Construction

Nothing in this chapter shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation applicable to food handling which is designed to protect the public health from individuals who pose a significant risk to the health or safety of others, which cannot be eliminated by reasonable accommodation, pursuant to the list of infectious or communicable diseases and the modes of transmissability 1 published by the Secretary of Health and Human Services.

CREDIT(S) (Pub.L. 101-336, Title I, § 103, July 26, 1990, 104 Stat. 333; Pub.L. 110-325, § 5(b), Sept. 25, 2008, 122 Stat. 3557.)

Footnotes 1 So in original. Probably should be “transmissibility”. 42 U.S.C.A. § 12113, 42 USCA § 12113 Current through P.L. 114-49 approved 8-7-2015

KeyCite Yellow Flag - Negative Treatment Proposed Legislation

United States Code Annotated Title 29. Labor Chapter 8. Fair Labor Standards (Refs & Annos)

29 U.S.C.A. § 213

§ 213. Exemptions

Currentness

(a) Minimum wage and maximum hour requirements

The provisions of section 206 (except subsection (d) in the case of paragraph (1) of this subsection) and section 207 of this title shall not apply with respect to--

(1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of subchapter II of chapter 5 of Title 5, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities); or

(2) Repealed. Pub.L. 101-157, § 3(c)(1), Nov. 17, 1989, 103 Stat. 939

(3) any employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33 # per centum of its average receipts for the other six months of such year, except that the exemption from sections 206 and 207 of this title provided by this paragraph does not apply with respect to any employee of a private entity engaged in providing services or facilities (other than, in the case of the exemption from section 206 of this title, a private entity engaged in providing services and facilities directly related to skiing) in a national park or a national forest, or on land in the National Wildlife Refuge System, under a contract with the Secretary of the Interior or the Secretary of Agriculture; or

(4) Repealed. Pub.L. 101-157, § 3(c)(1), Nov. 17, 1989, 103 Stat. 939

(5) any employee employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee; or

(6) any employee employed in agriculture (A) if such employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor, (B) if such employee is the parent, spouse, child, or other member of his employer's immediate family, (C) if such employee (i) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) commutes daily from his permanent residence to the farm on which he is so employed, and (iii) has been employed in agriculture less than thirteen weeks during the preceding calendar year, (D) if such employee (other than an employee described in clause (C) of this subsection) (i) is sixteen years of age or under and is employed as a hand harvest laborer, is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) is employed on the same farm as his parent or person standing in the place of his parent, and (iii) is paid at the same piece rate as employees over age sixteen are paid on the same farm, or (E) if such employee is principally engaged in the range production of livestock; or

(7) any employee to the extent that such employee is exempted by regulations, order, or certificate of the Secretary issued under section 214 of this title; or

(8) any employee employed in connection with the publication of any weekly, semiweekly, or daily newspaper with a circulation of less than four thousand the major part of which circulation is within the county where published or counties contiguous thereto; or

(9) Repealed. Pub.L. 93-259, § 23(a)(1), Apr. 8, 1974, 88 Stat. 69

(10) any switchboard operator employed by an independently owned public telephone company which has not more than seven hundred and fifty stations; or

(11) Repealed. Pub.L. 93-259, § 10(a), Apr. 8, 1974, 88 Stat. 63

(12) any employee employed as a seaman on a vessel other than an American vessel; or

(13), (14) Repealed. Pub.L. 93-259, §§ 9(b)(1), 23(b)(1), Apr. 8, 1974, 88 Stat. 63, 69

(15) any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary); or

(16) a criminal investigator who is paid availability pay under section 5545a of Title 5;

(17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is--

(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;

(B) the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or

(D) a combination of duties described in subparagraphs (A), (B), and (C) the performance of which requires the same level of skills, and

who, in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour; or

(18) any employee who is a border patrol agent, as defined in section 5550(a) of Title 5.

(b) Maximum hour requirements

The provisions of section 207 of this title shall not apply with respect to--

(1) any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49; or

(2) any employee of an employer engaged in the operation of a rail carrier subject to part A of subtitle IV of Title 49; or

(3) any employee of a carrier by air subject to the provisions of title II of the Railway Labor Act [45 U.S.C.A. § 181 et seq.]; or

(4) Repealed. Pub.L. 93-259, § 11(c), Apr. 8, 1974, 88 Stat. 64

(5) any individual employed as an outside buyer of poultry, eggs, cream, or milk, in their raw or natural state; or

(6) any employee employed as a seaman; or

(7) Repealed. Pub.L. 93-259, § 21(b)(3), Apr. 8, 1974, 88 Stat. 68

(8) Repealed. Pub.L. 95-151, § 14(b), Nov. 1, 1977, 91 Stat. 1252

(9) any employee employed as an announcer, news editor, or chief engineer by a radio or television station the major studio of which is located (A) in a city or town of one hundred thousand population or less, according to the latest available decennial census figures as compiled by the Bureau of the Census, except where such city or town is part of a standard metropolitan statistical area, as defined and designated by the Office of Management and Budget, which has a total population in excess of one hundred thousand, or (B) in a city or town of twenty-five thousand population or less, which is part of such an area but is at least 40 airline miles from the principal city in such area; or

(10)(A) any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers; or

(B) any salesman primarily engaged in selling trailers, boats, or aircraft, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling trailers, boats, or aircraft to ultimate purchasers; or

(11) any employee employed as a driver or driver's helper making local deliveries, who is compensated for such employment on the basis of trip rates, or other delivery payment plan, if the Secretary shall find that such plan has the general purpose and effect of reducing hours worked by such employees to, or below, the maximum workweek applicable to them under section 207(a) of this title; or

(12) any employee employed in agriculture or in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, or operated on a sharecrop basis, and which are used exclusively for supply and storing of water, at least 90 percent of which was ultimately delivered for agricultural purposes during the preceding calendar year; or

(13) any employee with respect to his employment in agriculture by a farmer, notwithstanding other employment of such employee in connection with livestock auction operations in which such farmer is engaged as an adjunct to the raising of livestock, either on his own account or in conjunction with other farmers, if such employee (A) is primarily employed during his workweek in agriculture by such farmer, and (B) is paid for his employment in connection with such livestock auction operations at a wage rate not less than that prescribed by section 206(a)(1) of this title; or

(14) any employee employed within the area of production (as defined by the Secretary) by an establishment commonly recognized as a country elevator, including such an establishment which sells products and services used in the operation of a farm, if no more than five employees are employed in the establishment in such operations; or

(15) any employee engaged in the processing of maple sap into sugar (other than refined sugar) or syrup; or

(16) any employee engaged (A) in the transportation and preparation for transportation of fruits or vegetables, whether or not performed by the farmer, from the farm to a place of first processing or first marketing within the same State, or (B) in transportation, whether or not performed by the farmer, between the farm and any point within the same State of persons employed or to be employed in the harvesting of fruits or vegetables; or

(17) any driver employed by an employer engaged in the business of operating taxicabs; or

(18), (19) Repealed. Pub.L. 93-259, §§ 15(c), 16(b), Apr. 8, 1974, 88 Stat. 65

(20) any employee of a public agency who in any workweek is employed in fire protection activities or any employee of a public agency who in any workweek is employed in law enforcement activities (including security personnel in correctional institutions), if the public agency employs during the workweek less than 5 employees in fire protection or law enforcement activities, as the case may be; or

(21) any employee who is employed in domestic service in a household and who resides in such household; or

(22) Repealed. Pub.L. 95-151, § 5, Nov. 1, 1977, 91 Stat. 1249

(23) Repealed. Pub.L. 93-259, § 10(b)(3), Apr. 8, 1974, 88 Stat. 64

(24) any employee who is employed with his spouse by a nonprofit educational institution to serve as the parents of children--

(A) who are orphans or one of whose natural parents is deceased, or

(B) who are enrolled in such institution and reside in residential facilities of the institution,

while such children are in residence at such institution, if such employee and his spouse reside in such facilities, receive, without cost, board and lodging from such institution, and are together compensated, on a cash basis, at an annual rate of not less than $10,000; or

(25), (26) Repealed. Pub.L. 95-151, §§ 6(a), 7(a), Nov. 1, 1977, 91 Stat. 1249, 1250

(27) any employee employed by an establishment which is a motion picture theater; or

(28) any employee employed in planting or tending trees, cruising, surveying, or felling timber, or in preparing or transporting logs or other forestry products to the mill, processing plant, railroad, or other transportation terminal, if the number of employees employed by his employer in such forestry or lumbering operations does not exceed eight;

(29) any employee of an amusement or recreational establishment located in a national park or national forest or on land in the National Wildlife Refuge System if such employee (A) is an employee of a private entity engaged in providing services or facilities in a national park or national forest, or on land in the National Wildlife Refuge System, under a contract with the Secretary of the Interior or the Secretary of Agriculture, and (B) receives compensation for employment in excess of fifty- six hours in any workweek at a rate not less than one and one-half times the regular rate at which he is employed; or

(30) a criminal investigator who is paid availability pay under section 5545a of Title 5.

(1) Except as provided in paragraph (2) or (4), the provisions of section 212 of this title relating to child labor shall not apply to any employee employed in agriculture outside of school hours for the school district where such employee is living while he is so employed, if such employee--

(A) is less than twelve years of age and (i) is employed by his parent, or by a person standing in the place of his parent, on a farm owned or operated by such parent or person, or (ii) is employed, with the consent of his parent or person standing in the place of his parent, on a farm, none of the employees of which are (because of subsection (a)(6)(A) of this section) required to be paid at the wage rate prescribed by section 206(a)(5) of this title,

(B) is twelve years or thirteen years of age and (i) such employment is with the consent of his parent or person standing in the place of his parent, or (ii) his parent or such person is employed on the same farm as such employee, or

(2) The provisions of section 212 of this title relating to child labor shall apply to an employee below the age of sixteen employed in agriculture in an occupation that the Secretary of Labor finds and declares to be particularly hazardous for the employment of children below the age of sixteen, except where such employee is employed by his parent or by a person standing in the place of his parent on a farm owned or operated by such parent or person.

(3) The provisions of section 212 of this title relating to child labor shall not apply to any child employed as an actor or performer in motion pictures or theatrical productions, or in radio or television productions.

(4)(A) An employer or group of employers may apply to the Secretary for a waiver of the application of section 212 of this title to the employment for not more than eight weeks in any calendar year of individuals who are less than twelve years of age, but not less than ten years of age, as hand harvest laborers in an agricultural operation which has been, and is customarily and generally recognized as being, paid on a piece rate basis in the region in which such individuals would be employed. The Secretary may not grant such a waiver unless he finds, based on objective data submitted by the applicant, that--

(i) the crop to be harvested is one with a particularly short harvesting season and the application of section 212 of this title would cause severe economic disruption in the industry of the employer or group of employers applying for the waiver;

(ii) the employment of the individuals to whom the waiver would apply would not be deleterious to their health or well-being;

(iii) the level and type of pesticides and other chemicals used would not have an adverse effect on the health or well-being of the individuals to whom the waiver would apply;

(iv) individuals age twelve and above are not available for such employment; and

(v) the industry of such employer or group of employers has traditionally and substantially employed individuals under twelve years of age without displacing substantial job opportunities for individuals over sixteen years of age.

(B) Any waiver granted by the Secretary under subparagraph (A) shall require that--

(i) the individuals employed under such waiver be employed outside of school hours for the school district where they are living while so employed;

(ii) such individuals while so employed commute daily from their permanent residence to the farm on which they are so employed; and

(iii) such individuals be employed under such waiver (I) for not more than eight weeks between June 1 and October 15 of any calendar year, and (II) in accordance with such other terms and conditions as the Secretary shall prescribe for such individuals' protection.

(5)(A) In the administration and enforcement of the child labor provisions of this chapter, employees who are 16 and 17 years of age shall be permitted to load materials into, but not operate or unload materials from, scrap paper balers and paper box compactors--

(i) that are safe for 16- and 17-year-old employees loading the scrap paper balers or paper box compactors; and

(ii) that cannot be operated while being loaded.

(B) For purposes of subparagraph (A), scrap paper balers and paper box compactors shall be considered safe for 16- or 17- year-old employees to load only if--

(i)(I) the scrap paper balers and paper box compactors meet the American National Standards Institute's Standard ANSI Z245.5-1990 for scrap paper balers and Standard ANSI Z245.2-1992 for paper box compactors; or

(II) the scrap paper balers and paper box compactors meet an applicable standard that is adopted by the American National Standards Institute after August 6, 1996, and that is certified by the Secretary to be at least as protective of the safety of minors as the standard described in subclause (I);

(ii) the scrap paper balers and paper box compactors include an on-off switch incorporating a key-lock or other system and the control of the system is maintained in the custody of employees who are 18 years of age or older;

(iii) the on-off switch of the scrap paper balers and paper box compactors is maintained in an off position when the scrap paper balers and paper box compactors are not in operation; and

(iv) the employer of 16- and 17-year-old employees provides notice, and posts a notice, on the scrap paper balers and paper box compactors stating that--

(I) the scrap paper balers and paper box compactors meet the applicable standard described in clause (i);

(II) 16- and 17-year-old employees may only load the scrap paper balers and paper box compactors; and

(III) any employee under the age of 18 may not operate or unload the scrap paper balers and paper box compactors.

The Secretary shall publish in the Federal Register a standard that is adopted by the American National Standards Institute for scrap paper balers or paper box compactors and certified by the Secretary to be protective of the safety of minors under clause (i)(II).

(C)(i) Employers shall prepare and submit to the Secretary reports--

(I) on any injury to an employee under the age of 18 that requires medical treatment (other than first aid) resulting from the employee's contact with a scrap paper baler or paper box compactor during the loading, operation, or unloading of the baler or compactor; and

(II) on any fatality of an employee under the age of 18 resulting from the employee's contact with a scrap paper baler or paper box compactor during the loading, operation, or unloading of the baler or compactor.

(ii) The reports described in clause (i) shall be used by the Secretary to determine whether or not the implementation of subparagraph (A) has had any effect on the safety of children.

(iii) The reports described in clause (i) shall provide--

(I) the name, telephone number, and address of the employer and the address of the place of employment where the incident occurred;

(II) the name, telephone number, and address of the employee who suffered an injury or death as a result of the incident;

(III) the date of the incident;

(IV) a description of the injury and a narrative describing how the incident occurred; and

(V) the name of the manufacturer and the model number of the scrap paper baler or paper box compactor involved in the incident.

(iv) The reports described in clause (i) shall be submitted to the Secretary promptly, but not later than 10 days after the date on which an incident relating to an injury or death occurred.

(v) The Secretary may not rely solely on the reports described in clause (i) as the basis for making a determination that any of the employers described in clause (i) has violated a provision of section 212 of this title relating to oppressive child labor or a regulation or order issued pursuant to section 212 of this title. The Secretary shall, prior to making such a determination, conduct an investigation and inspection in accordance with section 212(b) of this title.

(vi) The reporting requirements of this subparagraph shall expire 2 years after August 6, 1996.

(6) In the administration and enforcement of the child labor provisions of this chapter, employees who are under 17 years of age may not drive automobiles or trucks on public roadways. Employees who are 17 years of age may drive automobiles or trucks on public roadways only if--

(A) such driving is restricted to daylight hours;

(B) the employee holds a State license valid for the type of driving involved in the job performed and has no records of any moving violation at the time of hire;

(D) the automobile or truck is equipped with a seat belt for the driver and any passengers and the employee's employer has instructed the employee that the seat belts must be used when driving the automobile or truck;

(E) the automobile or truck does not exceed 6,000 pounds of gross vehicle weight;

(F) such driving does not involve--

(i) the towing of vehicles;

(ii) route deliveries or route sales;

(iii) the transportation for hire of property, goods, or passengers;

(iv) urgent, time-sensitive deliveries;

(v) more than two trips away from the primary place of employment in any single day for the purpose of delivering goods of the employee's employer to a customer (other than urgent, time-sensitive deliveries);

(vi) more than two trips away from the primary place of employment in any single day for the purpose of transporting passengers (other than employees of the employer);

(vii) transporting more than three passengers (including employees of the employer); or

(viii) driving beyond a 30 mile radius from the employee's place of employment; and

(G) such driving is only occasional and incidental to the employee's employment.

For purposes of subparagraph (G), the term “occasional and incidental” is no more than one-third of an employee's worktime in any workday and no more than 20 percent of an employee's worktime in any workweek.

(7)(A)(i) Subject to subparagraph (B), in the administration and enforcement of the child labor provisions of this chapter, it shall not be considered oppressive child labor for a new entrant into the workforce to be employed inside or outside places of business where machinery is used to process wood products.

(ii) In this paragraph, the term “new entrant into the workforce” means an individual who

(I) is under the age of 18 and at least the age of 14, and

(II) by statute or judicial order is exempt from compulsory school attendance beyond the eighth grade.

(B) The employment of a new entrant into the workforce under subparagraph (A) shall be permitted

(i) if the entrant is supervised by an adult relative of the entrant or is supervised by an adult member of the same religious sect or division as the entrant;

(ii) if the entrant does not operate or assist in the operation of power-driven woodworking machines;

(iii) if the entrant is protected from wood particles or other flying debris within the workplace by a barrier appropriate to the potential hazard of such wood particles or flying debris or by maintaining a sufficient distance from machinery in operation; and

(iv) if the entrant is required to use personal protective equipment to prevent exposure to excessive levels of noise and saw dust.

(d) Delivery of newspapers and wreathmaking

The provisions of sections 206, 207, and 212 of this title shall not apply with respect to any employee engaged in the delivery of newspapers to the consumer or to any homeworker engaged in the making of wreaths composed principally of natural holly, pine, cedar, or other evergreens (including the harvesting of the evergreens or other forest products used in making such wreaths).

(e) Maximum hour requirements and minimum wage employees

The provisions of section 207 of this title shall not apply with respect to employees for whom the Secretary of Labor is authorized to establish minimum wage rates as provided in section 206(a)(3) of this title, except with respect to employees for whom such rates are in effect; and with respect to such employees the Secretary may make rules and regulations providing reasonable limitations and allowing reasonable variations, tolerances, and exemptions to and from any or all of the provisions of section 207 of this title if he shall find, after a public hearing on the matter, and taking into account the factors set forth in section 206(a)(3) of this title, that economic conditions warrant such action.

(f) Employment in foreign countries and certain United States territories

The provisions of sections 206, 207, 211, and 212 of this title shall not apply with respect to any employee whose services during the workweek are performed in a workplace within a foreign country or within territory under the jurisdiction of the United States other than the following: a State of the United States; the District of Columbia; Puerto Rico; the Virgin Islands; outer Continental Shelf lands defined in the Outer Continental Shelf Lands Act (ch. 345, 67 Stat. 462) [43 U.S.C.A. § 1331 et seq.]; American Samoa; Guam; Wake Island; Eniwetok Atoll; Kwajalein Atoll; and Johnston Island.

(g) Certain employment in retail or service establishments, agriculture

The exemption from section 206 of this title provided by paragraph (6) of subsection (a) of this section shall not apply with respect to any employee employed by an establishment (1) which controls, is controlled by, or is under common control with, another establishment the activities of which are not related for a common business purpose to, but materially support the activities of the establishment employing such employee; and (2) whose annual gross volume of sales made or business done, when combined with the annual gross volume of sales made or business done by each establishment which controls, is controlled by, or is under common control with, the establishment employing such employee, exceeds $10,000,000 (exclusive of excise taxes at the retail level which are separately stated).

(h) Maximum hour requirement: fourteen workweek limitation

The provisions of section 207 of this title shall not apply for a period or periods of not more than fourteen workweeks in the aggregate in any calendar year to any employee who--

(1) is employed by such employer--

(A) exclusively to provide services necessary and incidental to the ginning of cotton in an establishment primarily engaged in the ginning of cotton;

(B) exclusively to provide services necessary and incidental to the receiving, handling, and storing of raw cotton and the compressing of raw cotton when performed at a cotton warehouse or compress-warehouse facility, other than one operated in conjunction with a cotton mill, primarily engaged in storing and compressing;

(C) exclusively to provide services necessary and incidental to the receiving, handling, storing, and processing of cottonseed in an establishment primarily engaged in the receiving, handling, storing, and processing of cottonseed; or

(D) exclusively to provide services necessary and incidental to the processing of sugar cane or sugar beets in an establishment primarily engaged in the processing of sugar cane or sugar beets; and

(2) receives for--

(A) such employment by such employer which is in excess of ten hours in any workday, and

(B) such employment by such employer which is in excess of forty-eight hours in any workweek,

compensation at a rate not less than one and one-half times the regular rate at which he is employed.

Any employer who receives an exemption under this subsection shall not be eligible for any other exemption under this section or section 207 of this title.

(i) Cotton ginning

The provisions of section 207 of this title shall not apply for a period or periods of not more than fourteen workweeks in the aggregate in any period of fifty-two consecutive weeks to any employee who--

(1) is engaged in the ginning of cotton for market in any place of employment located in a county where cotton is grown in commercial quantities; and

(2) receives for any such employment during such workweeks--

(A) in excess of ten hours in any workday, and

(B) in excess of forty-eight hours in any workweek,

compensation at a rate not less than one and one-half times the regular rate at which he is employed. No week included in any fifty-two week period for purposes of the preceding sentence may be included for such purposes in any other fifty- two week period.

(j) Processing of sugar beets, sugar beet molasses, or sugar cane

(1) is engaged in the processing of sugar beets, sugar beet molasses, or sugar cane into sugar (other than refined sugar) or syrup; and

(2) receives for any such employment during such workweeks--

(A) in excess of ten hours in any workday, and

(B) in excess of forty-eight hours in any workweek,

CREDIT(S) (June 25, 1938, c. 676, § 13, 52 Stat. 1067; Aug. 9, 1939, c. 605, 53 Stat. 1266; Oct. 26, 1949, c. 736, § 11, 63 Stat. 917; Aug. 8, 1956, c. 1035, § 3, 70 Stat. 1118; Aug. 30, 1957, Pub.L. 85-231, § 1(1), 71 Stat. 514; July 12, 1960, Pub.L. 86-624, § 21(b), 74 Stat. 417; May 5, 1961, Pub.L. 87-30, §§ 9, 10, 75 Stat. 71, 74; Sept. 23, 1966, Pub.L. 89-601, Title II, §§ 201 to 204(a), (b), 205 to 212(a), 213 to 215(b), (c), 80 Stat. 833 to 838; Oct. 15, 1966, Pub.L. 89-670, § 8(e), 80 Stat. 943; 1970 Reorg. Plan No. 2, § 102, eff. July 1, 1970, 35 F.R. 7959, 84 Stat. 2085; June 23, 1972, Pub.L. 92-318, Title IX, § 906(b)(1), 86 Stat. 375; Apr. 8, 1974, Pub.L. 93-259, §§ 6(c)(2), 7(b)(3), (4), 8, 9(b), 10, 11, 12(a), 13(a) to (d), 14 to 18, 20(a) to (c), 21(b), 22, 23, 25(b), 88 Stat. 61 to 69, 72; Nov. 1, 1977, Pub.L.95-151, §§ 4 to 8, 9(d), 11, 14, 91 Stat. 1249, 1250 to 1252; Sept. 27, 1979, Pub.L. 96-70, Title I, § 1225(a), 93 Stat. 468; Nov. 17, 1989, Pub.L. 101-157, § 3(c), 103 Stat. 939; Sept. 30, 1994, Pub.L. 103-329, Title VI, § 633(d), 108 Stat. 2428; Dec. 29, 1995, Pub.L. 104-88, Title III, § 340, 109 Stat. 955; Aug. 6, 1996, Pub.L. 104-174, § 1, 110 Stat. 1553; Aug. 20, 1996, Pub.L. 104-188, § 2105(a), 110 Stat. 1929; Oct. 11, 1996, Pub.L. 104-287, § 7(5), 110 Stat. 3400; Nov. 13, 1997, Pub.L. 105-78, Title I, § 105, 111 Stat. 1477; Oct. 31, 1998, Pub.L. 105-334, § 2(a), 112 Stat. 3137; Jan. 23, 2004, Pub.L. 108-199, Div. E, Title I, § 108, 118 Stat. 236; Pub.L. 113-277, § 2(g)(2), Dec. 18, 2014, 128 Stat. 3005.)

29 U.S.C.A. § 213, 29 USCA § 213 Current through P.L. 114-49 approved 8-7-2015

HELPFUL WEBSITES:

www.eeoc.gov www.ca9.uscourts.gov www.findlaw.com http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR (CFRs) http://www.findlaw.com/casecode/courts/ (search for United States Court of Appeals decisions) www.shrm.org (Society for Human Resource Management)

US2008 7624124 1

[Diocese of Atlanta] [Letter Agreement between Parish and Rector]

LETTER OF AGREEMENT

Between

______Rector

and

______Parish

who has been called to serve this parish as Rector with the understanding that his/her tenure continue until dissolved by mutual consent or as determined by the Church pursuant to procedures, directives, and decisions provided by the Canons and Constitution of the Church, as discussed below.

PREAMBLE

The Rector shall lead the Church of ______, of the Diocese of Atlanta (the “Diocese”) of the Protestant Episcopal Church in the United States of America (“Episcopal Church”) as pastor, priest, and teacher, sharing in the councils of this Diocese and of the whole church, in communion with the Bishop. By word and action, informed at all times by the Holy Scriptures, the Book of Common Prayer, and the Constitution and Canons of the General Convention and the Diocese, the Rector shall proclaim the Gospel, love and serve Christ’s people, nourish them and strengthen them to glorify God in this life and in the life to come.

SECTION A - TIMES OF WORK AND LEAVE

1. The Rectors work includes not only activities directed to the parish and its well being, but he/she also labors on behalf of the Diocese and community.

2. The Rector will have the following period of leave with full compensation:

(a) The Rector shall have one weekday off each week (i.e., Monday-Friday), and shall perform such duties on Saturdays and Sundays as are requested or required. (b) One day for each of the following National holidays, to be taken so as not to interfere with Sunday worship or worship for major occasions.

New Year’s Day Martin Luther King’s Birthday A day following Easter

USADMIN 10180362 1

Memorial Day Independence Day Labor Day Thanksgiving Day A day following Christmas

(c) One calendar month annual vacation. Unused vacation does not accrue and is not compensable. (d) Two weeks continuing education each year (unused time does not accrue). A written plan for continuing education will be submitted to the Vestry and the Bishop annually as required by canon. (e) For the benefit of both the Rector and the parish a sabbatical leave shall be provided in accordance with diocesan policy.

SECTION B - COMPENSATION

1. An annual aggregate compensation consisting of the following items:

Salary & Housing expenses $ SECA (wages) $ (currently 7.65% of salary & housing) Travel/Auto Allowance $ Pension $ (18% of salary, housing & SECA) HMO $ (including spouse/family) Dental $ (including spouse/family) $50,000 Term Life $ Continuing Education $ TOTAL cash stipend $

Value of housing provided $ (If church provides rectory, 30% of salary housing & SECA)

TOTAL value of compensation $

2. The Rector’s salary will be reviewed annually.

3. In the event of the Rector’s death, the Church of ______will continue providing major medical insurance benefits to his/her surviving spouse for a period of six months.

4. Reasonable relocation expenses of the move to the parish will be paid by the parish.

5. The Rector shall not charge fees for performing any rites of the Church such as marriages, baptisms and funerals, but may accept gratuities which individuals may wish to give.

2 USADMIN 10180362 1

SECTION C - DISCRETIONARY FUND

In accordance with the Canons of the Church, a Discretionary Fund will be established under the Rector’s sole control from the following sources:

1. The loose cash from the collection plate on the first Sunday of each month.

2. Gifts given to the Rector for the purpose of such Discretionary Fund.

3. This fund will be audited annually.

SECTION D - USE OF BUILDINGS

In addition to use and control of the Church of ______and parish buildings for the discharge of the duties of the Rector’s office, as provided by Canon Law, the Rector shall have the right to grant use of the buildings to individuals or groups from outside the parish, following guidelines approved by the Vestry.

SECTION E - MINISTRY REVIEW

There shall be an annual review of the total ministry of the parish. It will be the purpose of this review to:

• Provide the Rector, Wardens and Vestry the opportunity to assess how well they are fulfilling their responsibilities to each other and to the ministry they share.

• Establish goals for the work of the parish for the coming year.

• Isolate areas which have not received adequate attention and may be adversely affecting the mission and the ministry of the parish.

• This may be done in conjunction with an annual Vestry retreat. A third party may be engaged to lead this retreat.

SECTION F - Term Of Employment And Role Of Canons And Doctrine

The Episcopal Church and the Diocese (collectively the “Church”) have a Constitution and Canons that apply to the Rector and the parish (collectively the “Canons of the Church”). Under the Canons of the Church, certain procedures are available to deal with disputes between the Rector and the parish authorities regarding Rector’s employment, including, but not limited to mediation and Godly judgment by the Bishop under Canon III.9.15. These procedures, and any actions by the Church or by parish authorities regarding Rector’s employment and tenure, are purely internal Church matters. It is understood and agreed that the existence, application, and interpretation of rights and procedures under the Canons of the Church, and of Church doctrine, and decisions by the Church and the parish as to Rector’s employment and tenure, are not subject to review of any type as to substance or procedure by any secular authority or other authority outside of the Church.

3 USADMIN 10180362 1

SECTION G - REVISION

This letter may be revised only by mutual agreement in writing. Compensation and expense revisions may be mutually agreed upon in a separate budget process.

SECTION H - OTHER AGREEMENTS

This Letter of Agreement shall be made part of the minutes of the next Vestry meeting following its signing and copies shall be given to each Vestry member.

Accepted and Agreed to this ____ day of ______, 2014.

______Senior Warden Rector

4 USADMIN 10180362 1

U.S. Department of Labor Wage and Hour Division

(Revised May 2014)

Fact Sheet #13: Am I an Employee?: Employment Relationship Under the Fair Labor Standards Act (FLSA)

This fact sheet provides general information concerning the meaning of "employment relationship" and the significance of that determination in applying provisions of the Fair Labor Standards Act (FLSA).

Determining Whether an Employment Relationship Exists: Is a Worker an Employee or Independent Contractor? ,QRUGHUIRUWKH)/6$¶VPLQLPXPZDJHDQGRYHUWLPHSURYLVLRQVWRDSSO\WRDZRUNHUWKHZRUNHUPXVW EHDQ³HPSOR\HH´RIWKHHPSOR\HUPHDQLQJWKDWDQHPSOR\PHQWUHODWLRQVKLSPXVWH[LVWEHWZHHQWKH worker and the employer. 7KH)/6$GHILQHV³HPSOR\´DVLQFOXGLQJWR³VXIIHURUSHUPLWWRZRUN´ representing the broadest definition of employment under the law because it covers work that the employer directs or allows to take place. $SSO\LQJWKH)/6$¶VGHILQLWLRQZRUNHUVZKRDUH economically dependent on the business of the employer, regardless of skill level, are considered to be employees, and most workers are employees. On the other hand, independent contractors are workers with economic independence who are in business for themselves. $QXPEHURI³HFRQRPLFUHDOLWLHV´IDFWRUVDUHKHOSIXOJXLGHVLQUHVROYLQJZKHWKHUDZRUNHULVWUXO\LQ business for himself or herself, or like most, is economically dependent on an employer who can require (or allow) employees to work and who can prevent employees from working. The Supreme Court has indicated that there is no single rule or test for determining whether an individual is an employee or independent contractor for purposes of the FLSA. The Court has held that the totality of the working relationship is determinative, meaning that all facts relevant to the relationship between the worker and the employer must be considered. While the factors considered can vary, and while no one set of factors is exclusive, the following factors are generally considered when determining whether an employment relationship exists under the FLSA (i.e., whether a worker is an employee, as opposed to an independent contractor): 1) 7KHH[WHQWWRZKLFKWKHZRUNSHUIRUPHGLVDQLQWHJUDOSDUWRIWKHHPSOR\HU¶V business. ,IWKHZRUNSHUIRUPHGE\DZRUNHULVLQWHJUDOWRWKHHPSOR\HU¶VEXVLQHVVLWLVPRUH likely that the worker is economically dependent on the employer and less likely that the worker is in business for himself or herself. )RUH[DPSOHZRUNLVLQWHJUDOWRWKHHPSOR\HU¶VEXVLQHVVLILWLVD part of its production process or if it is a service that the employer is in business to provide. :KHWKHUWKHZRUNHU¶VPDQDJHULDOVNLOOVDIIHFWKLVRUKHURSSRUWXQLW\IRUSURILWDQG loss. Managerial skill may be indicated by the hiring and supervision of workers or by investment in equipment. Analysis of this factor should focus on whether the worker exercises managerial VNLOOVDQGLIVRZKHWKHUWKRVHVNLOOVDIIHFWWKDWZRUNHU¶VRSSRUWunity for both profit and loss. FS 13 3) The relative investments in facilities and equipment by the worker and the employer. 7KHZRUNHUPXVWPDNHVRPHLQYHVWPHQWFRPSDUHGWRWKHHPSOR\HU¶VLQYHVWPHQW DQG bear some risk for a loss) in order for there to be an indication that he/she is an independent FRQWUDFWRULQEXVLQHVVIRUKLPVHOIRUKHUVHOI$ZRUNHU¶VLQYHVWPHQWLQWRROVDQGHTXLSPHQWWR perform the work does not necessarily indicate independent contractor status, because such tools and equipment may simpl\EHUHTXLUHGWRSHUIRUPWKHZRUNIRUWKHHPSOR\HU,IDZRUNHU¶V EXVLQHVVLQYHVWPHQWFRPSDUHVIDYRUDEO\HQRXJKWRWKHHPSOR\HU¶VWKDWWKH\DSSHDUWREHVKDULQJ risk of loss, this factor indicates that the worker may be an independent contractor. 4) The woUNHU¶VVNLOODQGLQLWLDWLYH Both employees and independent contractors may be VNLOOHGZRUNHUV7RLQGLFDWHSRVVLEOHLQGHSHQGHQWFRQWUDFWRUVWDWXVWKHZRUNHU¶VVNLOOVVKRXOG demonstrate that he or she exercises independent business judgment. Further, the fact that a worker is in open market competition with others would suggest independent contractor status. For example, specialized skills possessed by carpenters, construction workers, and electricians are not themselves indicative of independent contractor status; rather, it is whether these workers take initiative to operate as independent businesses, as opposed to being economically dependent, that suggests independent contractor status. 5) 7KHSHUPDQHQF\RIWKHZRUNHU¶VUHODWLRQVKLSZLWKWKHHPSOR\HU Permanency or LQGHILQLWHQHVVLQWKHZRUNHU¶VUHODWLRQVKLSZLWKWKHHPSOR\HUVXJJHVWVWKDWWKHZRUNHULVDQ HPSOR\HHDVRSSRVHGWRDQLQGHSHQGHQWFRQWUDFWRU+RZHYHUDZRUNHU¶VODFNRIDSHUPDQHQW relationship with the employer does not necessarily suggest independent contractor status because the impermanent relationship may be due to industry-specific factors, or the fact that an employer routinely uses staffing agencies. 6) The nature and degree of control by the employer. Analysis of this factor includes who sets pay amounts and work hours and who determines how the work is performed, as well as whether the worker is free to work for others and hire helpers. An independent contractor generally works free from control by the employer (or anyone else, incOXGLQJWKHHPSOR\HU¶V clients). This is a complex factor that warrants careful review because both employees and independent contractors can have work situations that include minimal control by the employer. However, this factor does not hold any greater weight than the other factors. For example, a ZRUNHU¶VFRQWURORIKLVRUKHURZQZRUNKRXUVLVQRWQHFHVVDULO\LQGLFDWLYHRILQGHSHQGHQW contractor status; instead, the worker must control meaningful aspects of the working relationship. Further, the mere fact that a worker works from home or offsite is not indicative of independent contractor status because the employer may exercise substantial control over the working relationship even if it exercises less day-to-GD\FRQWURORYHUWKHHPSOR\HH¶VZRUNDWWKH remote worksite. There are certain factors which are immaterial in determining the existence of an employment relationship. For example, the fact that the worker has signed an agreement stating that he or she is an independent contractor is not controlling because the reality of the working relationship ± and not the label given to the relationship in an agreement ± is determinative. Likewise, the fact that the worker has incorporated a business and/or is licensed by a State/local government agency has little bearing on determining the existence of an employment relationship. Additionally, the Supreme Court has held that employee status is not determined by the time or mode of pay.

Requirements Under the FLSA When an employer-employee relationship exists, and the employee is engaged in work that is subject to the FLSA, the employee must be paid at least the Federal minimum wage of $7.25 per hour, effective July 24, 2009, and in most cases overtime at time and one-half his/her regular rate of pay for all hours worked in excess of 40 per week. The FLSA also has youth employment provisions which regulate the employment of minors under the age of eighteen, as well as recordkeeping requirements.

Where to Obtain Additional Information

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

U.S. Department of Labor 1-866-4-USWAGE Frances Perkins Building TTY: 1-866-487-9243 200 Constitution Avenue, NW Contact Us Washington, DC 20210

LETTER OF AGREEMENT

between

the Wardens, and Bishop’s Committee of St. ******* Episcopal Church

********, Utah

and

The Reverend ******* who has been called as Vicar with the understanding that this tenure is expected to continue for two years, unless renewed by mutual agreement or dissolved by mutual consent or by arbitration and decision as provided by the relevant Canons of the Diocese of Utah and of the General Convention of The Episcopal Church.

BISHOP’S COMMITTEE RESPONSIBILITIES

All ministries other than those reserved to ordained leadership (including, but not limited to administering the sacraments) are understood as mutual ministries of the laity of the congregation and the Vicar. The Bishop’s Committee shall lead the laity to support and cooperate with the Vicar in pursuit of parish goals, as articulated from time to time.

The Bishop is the legal agent for the congregation in all matters concerning its parish property and in its relationship with the Vicar. The Bishop’s Committee will see that she* is properly supported personally and organizationally as well as in the Bishop’s Committee’s financial obligations to her*.

RESPONSIBILITIES OF THE VICAR

The Vicar is pastor and chief executive of St. ******Episcopal Church. As such, this position must be undertaken prayerfully, intentionally and in spirit of cooperation and respect for all members of the leadership team and congregation. The Vicar’s ministry includes the pastoral and canonical responsibility for the congregation. She* shall lead the congregation as pastor, priest, and teacher, sharing in the councils of this congregation and of the whole Church, in communion with the Bishop. She* shall work with the Bishop’s Committee and other lay leaders to maintain the regular schedule of worship services and preaching, education, pastoral care and pastoral offices (e.g., weddings, funerals, baptisms), calling upon the sick and shut-in, visiting newcomers, and ongoing administration of the parish. She* shall supervise all parish staff in the exercise of their responsibilities and ministries, for which they shall be accountable to the Vicar. She* shall also support the Bishop’s Committee in fulfilling its responsibilities.

The duties of the Vicar include all duties prescribed by the Canons of the Episcopal Church and the Diocese of Utah, and the following:

WORSHIP

• Provide a regular schedule of Sunday and special worship services. • Preparation of individuals for Baptism and Confirmation. • Perform special services such as Baptisms, Weddings and Funerals. • Provide leadership in the planning and conducting of worship services in concert with the altar guild, musicians, and other lay ministers of the church.

PASTORAL CARE

• Provide support and counsel to individuals and families who are grappling with death, illness or personal crises in their own lives or those close to them. • Make home and hospital visits to members of the parish.

EDUCATION

• Develop and support programs for all ages in Christian education, including instruction in faith and ministry. • Develop and encourage training for all lay ministries of St. ****** Episcopal Church.

ADMINISTRATION

• Attend to the financial and fiscal life of the parish through proper stewardship of resources in cooperation with the Bishop’s Committee and Parish Treasurer. • In concert with the Bishop’s Committee, Junior Warden and Sexton, insure that the church building and grounds remain safe and well maintained. • In concert with the Bishop’s Committee and the Diocese of Utah, provide leadership for long-range planning regarding use of space and the future needs of the parish community. • Update and maintain parish records and files to accurately reflect the current membership of the parish. In concert with the Bishop’s Committee, update the parish computer to meet the administrative needs of the parish.

SECTION A: PART-TIME VICAR’S TIMES OF WORK AND LEAVE

1. The Vicar shall work at least 40 hours per week, which shall include Sunday activities. She* shall announce to the congregation what days of the week shall be her* regular days off of work. 2. She* will have the following periods of leave at full compensation: o Holidays, to be taken so as not to interfere with worship for major occasions, and consistent with those listed in current Diocesan policy. o Vacation, at the rate of one month per year that shall include four Sundays. She* shall give thirty days notice to the Wardens and Bishop’s Committee before taking vacation time. She* shall arrange for supply clergy, and the Bishop’s Committee agrees to pay supply clergy at the rate recommended by Diocesan Convention. o Attendance at the Convention of the Diocese of Utah, the Bishop's Clergy Conference and any Clergy Days called by the Bishop. o Continuing Education leave at the rate of two weeks per year and not subject to being carried forward to successive years. o Sabbatical Leave consistent with current Diocesan policy.

SECTION B- VICAR’S COMPENSATION

The Vicar’s salary compensation and benefits will be the responsibility of the Diocese of Utah, as provided by separate agreement.

SECTION C- VICAR’S EXPENSES

The parish is responsible to pay or reimburse the Vicar for the following expenses:

1. Actual and reasonable travel expenses while on church business, at the current IRS reimbursement rate or fares for air travel, plus out-of-pocket costs of parking, fees, tolls, etc., consistent with expense reimbursement guidelines of the Diocese of Utah. 2. The normal expenses of the Church's office operation, such as telephone, postage, office equipment, supplies, secretarial services, etc. 3. The costs of long distance telephone calls by the Vicar on church business. 4. A Continuing Education Allowance of $600 per year to be budgeted and set aside annually by the congregation. The Vicar may draw up to $600 per year from Diocesan matching funds for continuing education, subject to the guidelines of the Diocese. Unexpended portions of the Diocesan allowance shall be allowed to accumulate for use in succeeding years up to three years. Any remaining funds in the event the Vicar leaves active duty or moves from the Diocese will remain with the Diocese.

SECTION D- DISCRETIONARY FUND

In accordance with the Canons of the General Convention, a Discretionary Fund is to be established under the Vicar’s sole control, consisting of monetary gifts given to the Vicar for this specific purpose and other benefits as agreed by the Vicar and the Bishop’s Committee. This fund will come from the annual budget of St******* Church, and other donations designated by the Vicar or others for that purpose. The monies of the Discretionary Fund belong to the parish. Therefore, when the Vicar leaves the parish, any monies left in the Discretionary Fund must be transferred to the custodianship of the Senior Warden.

SECTION E- SUPPLEMENTARY COMPENSATION

The Vicar shall not charge for performing any rites of the Church (for example: baptisms, marriages, funerals). She* may receive income from other sources, such as fees and honoraria for professional services performed on personal time for groups unrelated to the parish or for sermons, books or articles published outside the parish.

SECTION F- USE OF BUILDINGS

In addition to use and control of the Church and Parish buildings for the discharge of the duties of the Vicar’s office, as provided by Canon law, the Vicar shall have the right to grant use of the buildings to individuals or groups from outside the parish, following guidelines approved by the Diocese of Utah, the Vicar and the Bishop’s Committee.

SECTION G- MUTUAL MINISTRY REVIEW

There shall be a bi-annual discussion and mutual review of the total ministry of the parish in order to provide the Vicar, Wardens and Bishop’s Committee the opportunity to assess how well they are fulfilling their responsibilities to each other and to the ministry they share. Also, this review will act to clarify the expectations of all parties to help put any future conflicts in manageable form. A mutually agreed upon third party shall be engaged to facilitate the mutual ministry review process.

SECTION H- OTHER AGREEMENTS

1. The Vicar shall begin duties in the parish not later than *********, with all pay and benefits becoming effective on that date.

2. This Letter of Agreement shall be made part of the minutes of the Bishop’s Committee meeting following its signing, and copies shall be given to each new Bishop’s Committee member thereafter.

3. In case of illness the Vicar shall notify the Senior Warden. If she is ill on a Sunday, she* shall arrange for supply clergy, and the Vestry agrees to pay the supply clergy at the rate recommended by the Diocesan Convention.

4. If the Vicar and Bishop’s Committee are in disagreement concerning interpretation of this Letter of Agreement, any party may appeal for mediation to the office of the Bishop of Utah, who is the final interpreter and arbiter of this Letter of Agreement.

Date ______(signed) ______Vicar

Date ______(signed) ______Senior Warden

Date ______(signed) ______Bishop

Re: Letter of Separation

Dear :

After careful consideration, I am terminating your employment effective immediately.

To ease the transition, the diocese would like to offer you the severance package which is described in the attached document with the title Employment Separation Agreement and General Release. Please read the document carefully as it describes the terms of your benefits under this severance agreement. You are advised to seek legal counsel before signing the agreement.

If you choose not to sign the agreement within the timeframe specified in the agreement, the agreement becomes void in all respects, and you will not receive the benefits described in the letter. Your employment with the Diocese will, nonetheless, have been terminated as of today.

You are required to return all equipment, computer and otherwise, to the diocese immediately along with all passwords and access codes. Any and all files related to the diocese are to be returned as well.

I also remind you that you signed a confidentiality and non-disclosure agreement with the diocese during the course of your employment.

You leave the employ of the diocese with our prayers and warmest regards.

Sincerely yours,

Bishop

Enclosure Employment Agreement Issues

Although not an exhaustive list, the following information would be helpful to have as we begin drafting the form agreements.

1. Term of Employment Agreement  Specified number of years?  At-will?  Renewable term? 2. Termination – Under what conditions?  At-will?  Either party may terminate upon ___ days written notice?  Cause termination? What constitutes cause?  Death/disability/sale of assets/dissolution/bankruptcy? 3. Compensation  Salary/waiver of treble damages under Arizona law  Benefits (life, health, 401K, etc.)  Business expenses  Auto allowance  Professional development expenses  Bonus  Stock  Deferred compensation  Professional liability insurance 4. Severance  When, if ever, will severance be offered  Only in exchange for a release  Require resignation from Board/offices  Terms of severance: X months pay; X months COBRA; out placement services, etc.  Cooperation clause in event of government investigation/litigation  Non-Admission clause 5. Confidentiality/Confidential Information  Employee inventions  Any other unique/proprietary information 6. Restrictive Covenants  Nonsolicitation o Customers? o Employees? o Length?  Noncompete o Scope? o Length? 7. Additional Representations and Warranties  Employee not subject to another noncompete or confidentiality agreement  Employee will provide cooperation to facilitate transition of replacement after he/she separates from employer  Employee will work exclusively for employer 8. Remedies  Arbitration  Waiver of jury trial 9. Indemnification 10. Return of Company Property 11. Confidentiality of Terms of Employment Agreement 12. Miscellaneous Items  Governing law  Recovery of attorneys’ fees  Assignment  Severability  Forum selection

1547632.1/99031.047

2 EMPLOYMENT SEPARATION AGREEMENT AND GENERAL RELEASE

The Diocese (“the Diocese”) and (“I, “Me” or “Employee”) wish to terminate their employment relationship, and any potential claims between them, on a mutually satisfactory and final basis, and they agree as follows:

1. My last day of employment with the Diocese was ** .

2. In return for my agreements and promises in this Agreement, the Diocese agrees to pay or provide me with the following enhanced benefits to which I am not presently entitled:

(a) the Diocese will pay me separation pay according to the following schedule:

****

If the Diocese fails to provide any of the payments provided in this letter by the date indicated by such payment, interest on the unpaid amount will become due and owing at the amount of one (1) % per month until paid.

(b) I understand and agree that all sums listed under this Agreement are subject to any withholding that is required by law.

3. I understand that my health care coverage will end on *** , and that I can continue health coverage at my own expense through the Medical Trust for a period of time determined by the Medical Trust.

4. Nothing in this agreement shall preclude my eligibility, at the date that I choose to retire, for any contribution to the Church Pension Group for supplemental health insurance that the Diocese at the effective date of my retirement shall choose to make for clergy who retire at that date. Nothing in this agreement shall be construed to guarantee, offer, promise, or otherwise provide that at the effective date of my retirement the Diocese will be making any such contributions to the Church Pension Group or that the Diocese will be making contributions in a specified amount to the Church Pension Group. Nothing in this agreement shall be construed to guarantee, offer, promise, or otherwise provide that at the effective date of my retirement the Diocese will be making contributions to the Church Pension Group at the rate that it is making such contributions at the time that this severance agreement is signed or that I will be eligible for this rate at the time that I choose to retire.

**amendment: I agree that this Paragraph No. 4 constitutes an explanation of the offer made on , and does not constitute a material change to the Diocese’s initial offer made on. I agree that this Paragraph No. 4 does not change the time period as set forth and described in Paragraph No. 12 during which this settlement offer is irrevocable.

1 5. In return for the Diocese’s agreements and promises, I waive, release and discharge any claims, whether presently known or unknown, that I may have against the Diocese or any of the Released Parties, as of the date of my signing of this agreement, including any claims which arise out of or are related in any way to my employment with, or separation of employment with, the Diocese. This release includes, but is not limited to, all claims that arise under federal, state, or local law, including, but not limited to, all claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1967, the Equal Pay Act of 1963, the Fair Labor Standards Act, the Employee Retirement Income Security Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Pennsylvania Human Relations Act, and any other federal, state, or local law, ordinance or regulation applying to or regulating employment, and any claims related to breach of contract. (“Released Parties”, as used in this Agreement, means the Diocese, and any of its employees, officers, directors, agents, attorneys or members of any board or committee of the Diocese.) I further agree that I am releasing all claims not only against the Diocese, but also any person or entity who might be liable for the acts or omissions of any of the parties I am releasing, and against the successors and assigns of all parties released hereunder. This release also applies to any claim for costs, fees, or other expenses, including attorney’s fees. Nothing in this Agreement shall constitute an admission or a statement by the Diocese that any of the statutes, laws, ordinances or regulations referenced in this paragraph are applicable to the Diocese in its decisions to employ, select, or choose the clergy employed by the Diocese. Further, nothing in this Agreement shall constitute an admission or statement that the Diocese waives in any way its rights protected by the Constitution or by any other laws, statutes or regulations to make decisions regarding the employment, selection, and choice of clergy employed by the Diocese.

6. Nothing in this Agreement shall be construed to prohibit me from filing a charge with or participating in any investigation or proceeding conducted by the EEOC, the U.S. Department of Labor, or a comparable state or local agency. Notwithstanding the forgoing, I agree to waive my right to recover monetary damages in any charge, complaint or lawsuit I file or filed on my behalf. This Agreement does not release or waive any vested rights I may have accrued in any pension benefit plan.

7. I acknowledge and confirm that I have received all compensation from the Diocese to which I am entitled, all vacation pay to which I am entitled, and I have been granted any leave to which I was entitled under the Family and Medical Leave Act or related state or local leave and disability laws, and that no compensation or leave is due or owing to me.

8. I shall return all property of the Diocese to the Diocese that I may have in my possession, including keys, files and documents, including any property kept in electronic format. I shall provide all passwords and other documentation necessary to access Diocesan property. By signing this agreement, I confirm that I have returned all property belonging to the Diocese.

2 9. I agree that I shall fully cooperate with the Diocese in regard to all matters relating to the transfer of my responsibilities and knowledge regarding the Diocese and its activities to other employees, consultants, volunteers or agents of the diocese.

10. I agree that I will not knowingly seek re-employment with the Diocese, unless the Diocese desires otherwise, and communicates its desire in writing.

11. This agreement does not waive any rights or claims that may arise after the date that the waiver is executed.

12. I acknowledge that the Diocese gave me a copy of this proposed Agreement on ** , and also advised me to consult an attorney about this offer and proposed Agreement. I understand that the settlement offer is irrevocable for 21/45 days from *** and I may use as much of this 21/45 day period as I want before signing the Agreement and returning the signed Agreement to the Diocese. However, if I have not signed and delivered this Agreement to the Bishop of the Diocese within such 21/45 day period, this offer and proposed Agreement is automatically withdrawn, and I will have no rights under any of its provisions. If I sign this Agreement, I have seven days from the date of my signature to revoke my signature and acceptance of this agreement. I may revoke my signature by providing written notice no later than the close of business on the seventh day after I sign the Agreement to the Bishop of the Diocese. If I revoke my signature during the seven day period, this Agreement will be null and void, but if I do not revoke my signature within the seven day period, then this Agreement will become fully binding and effective.

13. I acknowledge that I am 21 or more years of age, that I am not now and have not been within the past 15 days confined to a hospital, that I have been advised to review this Agreement with legal counsel, that I have not been promised anything in return for my waiver and release other than the terms contained in the Agreement, that I have read the Agreement, that I know and understand the contents of this Agreement, and that I consent freely and voluntarily to this Agreement.

14. I have not assigned any clams I have or may have against the Diocese to any other party.

15. Should any provision of this agreement be held invalid, that provision shall be deemed severed from this Agreement, and the remaining provisions shall continue in full force and effect.

3 IN WITNESS WHEREOF, intending to be legally bound, I have executed this Settlement Agreement and General Release on the date indicated below.

Name: Signature:

Date:

4 RECTOR LETTER OF AGREEMENT

between

the Wardens and Vestry of St. ***** Episcopal Church

*******, Utah

and

the Reverend ******** who has been called as Rector with the understanding that this tenure is to continue until dissolved by mutual consent or by arbitration and decision as provided by the relevant Canons of the Diocese of Utah and of the General Convention of The Episcopal Church.

VESTRY RESPONSIBILITIES

All ministries other than those reserved to ordained leadership (including, but not limited to administering the sacraments) are understood as mutual ministries of the laity of the congregation and the Rector. The Vestry shall lead the laity to support and cooperate with the Rector in pursuit of parish goals as articulated from time to time.

The Vestry is legal agent for the congregation in all matters concerning its parish property and in its relationship with the Rector. The Vestry will see that she* is properly supported personally and organizationally as well as in the Vestry's financial obligations to her*.

RESPONSIBILITIES OF THE RECTOR

The Rector is pastor and chief executive of ********* Episcopal Church. As such, this position must be undertaken prayerfully, intentionally and in spirit of cooperation and respect for all members of the leadership team and congregation. The Rector’s ministry includes the pastoral and canonical responsibility for the congregation. She* shall lead the congregation as pastor, priest, and teacher, sharing in the councils of this congregation and of the whole Church, in communion with the Bishop. She* shall work with the Vestry and other lay leaders to maintain the regular schedule of worship services and preaching, education, pastoral care and pastoral offices (e.g., weddings, funerals, baptisms), calling upon the sick and shut-in, visiting newcomers, and ongoing administration of the parish. She* shall supervise all parish staff in the exercise of their responsibilities and ministries, for which they shall be accountable to the Rector. She* shall also support the Vestry in fulfilling its responsibilities.

The duties of the Rector include all duties prescribed by the Canons of The Episcopal Church and the Diocese of Utah, and the following:

WORSHIP

• Provide a regular schedule of Sunday and special worship services. • Preparation of individuals for Baptism and Confirmation. 1 • Perform special services such as baptisms, weddings and funerals. • Provide leadership in the planning and conducting of worship services in concert with the altar guild, musicians, and other lay ministers of the church.

PASTORAL CARE

EDUCATION

• Develop and support programs for all ages in Christian education, including instruction in faith and ministry. • Develop and encourage training for all lay ministries of ********** Episcopal Church.

ADMINISTRATION

• Attend to the financial and fiscal life of the parish through proper stewardship of resources in cooperation with the Vestry and Parish Treasurer. • In concert with the Vestry, Junior Warden and Sexton ensure that the church building and grounds remain safe and well maintained. • In concert with the Vestry and the Diocese of Utah provide leadership for long range planning regarding use of space and the future needs of the parish community. • Update and maintain parish records and files to accurately reflect the current membership of the parish. In concert with the Vestry, update the parish computer to meet the administrative needs of the parish.

SECTION A- RECTOR’S TIMES OF WORK AND LEAVE

1. The Rector shall work a minimum of 40 hours a week, which shall include Sunday activities. She* shall announce to the congregation what days of the week shall be her* regular days off of work. 2. She* will have the following periods of leave at full compensation: o Holidays, to be taken so as not to interfere with worship for major occasions, and consistent with those listed in current Diocesan policy. o Vacation, at the rate of one month per year that shall include four Sundays. She* shall give thirty days notice to the Wardens and Vestry before taking vacation time. She* shall arrange for supply clergy, and the Vestry agrees to pay supply clergy at the rate recommended by Diocesan Convention. o Attendance at the Convention of the Diocese of Utah, the Bishop's Clergy Conference and any Clergy Days called by the Bishop. o Continuing Education leave at the rate of two weeks per year and not subject to being carried forward to successive years, and consistent with current diocesan policy. o Sabbatical Leave consistent with current diocesan policy.

SECTION B- RECTOR’S COMPENSATION

The Rector’s annual cash salary compensation will be $______, to be paid semi-monthly on or before the 15th and the last day of the month. The cash compensation will be reviewed and adjusted annually as cost of living adjustments may be made and according to the compensation guidelines adopted by the Diocese of Utah. Cash Compensation is defined in section IV.4 on page 7 of the Clergy Compensation and Benefits Policy. Upon the Rector’s request, the Standing Committee will designate a portion of the total cash salary as “Housing Allowance” under the Federal Internal Revenue Code.

The Diocese of Utah shall pay the following benefits:

a. Church Pension Fund assessed at the rate of 18% of total salary and housing, plus SECA reimbursement. b. Medical and Dental Insurance as part of the group plan provided by the Diocese. Currently, the Diocese pays 80% of the premium costs with clergy and lay employees being responsible for the other 20%. c. Group Life and Short-Term Disability Insurance as part of the group plan provided by the Diocese. d. Worker’s Compensation Insurance as provided by State Law. e. Pension Fund and SECA reimbursement payments will be maintained as if the Income Replacement Insurance were not in effect.

SECTION C- RECTOR’S EXPENSES

1. Actual and reasonable travel expenses while on church business, at the current IRS reimbursement rate or fares for air travel, plus out-of-pocket costs of parking, fees, tolls, etc., consistent with expense reimbursement guidelines of the Diocese of Utah. 2. The normal expenses of the Church's office operation, such as telephone, postage, office equipment, supplies, secretarial services, etc., are the direct budgeted expenses of the parish, as are: 3. The costs of long distance telephone calls on church business. 4. A Continuing Education Allowance of $600 per year to be budgeted and set aside annually by the congregation. The Rector may draw up to $600 per year from Diocesan matching funds for continuing education, subject to the guidelines of the Diocese. Unexpended portions of this Diocesan allowance shall be allowed to accumulate for use in succeeding years up to three years. Any remaining funds left in the event of the clergy person’s leaving active duty or leaving the Diocese will remain with the Diocese.

SECTION D- DISCRETIONARY FUND

In accordance with the Canons of the General Convention, a Discretionary fund is to be established under the Rector’s sole control, consisting of monetary gifts given to the Rector for this specific purpose and other benefits as agreed by the Rector and the Vestry. This fund will come from the following sources: $**** from the annual budget of ******, and other donations designated by the Rector or others for that purpose. The monies of the Discretionary Fund belong to the parish. Therefore, when the Rector leaves the parish, any monies left in the Discretionary Fund must be transferred to the custodianship of the Senior Warden. 3 SECTION E- SUPPLEMENTARY COMPENSATION

The Rector shall not charge for performing any rites of the Church (for example: baptisms, marriages, funerals). She* may receive income from other sources, such as fees and honoraria for professional services performed on personal time for groups unrelated to the parish or for sermons, books or articles published outside the parish.

SECTION F- USE OF BUILDINGS

In addition to use and control of the Church and Parish buildings for the discharge of the duties of the Rector’s office, as provided by Canon law, the Rector shall have the right to grant use of the buildings to individuals or groups from outside the parish, following guidelines approved by the Diocese of Utah, the Rector and the Vestry.

SECTION G- MUTUAL MINISTRY REVIEW

There shall be a bi-annual discussion and mutual review of the total ministry of the parish, in order to provide the Rector, Wardens and Vestry the opportunity to assess how well they are fulfilling their responsibilities to each other and to the ministry they share. Also, this review will act to clarify the expectations of all parties to help put any future conflicts in manageable form. A mutually agreed upon third party shall be engaged to facilitate the mutual ministry review process.

SECTION H- OTHER AGREEMENTS

1. All moving and travel expenses incurred in making the move from ******* to ***** UT shall be paid by *******Church/Diocese of Utah.

2. The Rector shall begin duties in the parish not later than *******, with all pay and benefits becoming effective on ******.

3. This Letter of Agreement shall be made part of the minutes of the Vestry meeting following its signing, and copies shall be given to each new Vestry member thereafter.

4. In case of illness the Rector shall notify the Senior Warden. If she is ill on a Sunday, she* shall arrange for supply clergy, and the Vestry agrees to pay the supply clergy at the rate recommended by the Diocesan Convention.

5. If the Rector and Vestry are in disagreement concerning interpretation of this Letter of Agreement, any party may appeal for mediation to the office of the Bishop of Utah, who is the final interpreter and arbiter of this Letter of Agreement.

Date ______(signed) ______Rector

Date ______(signed) ______Senior Warden

Date ______(signed) ______Bishop

4 PRIEST-IN-CHARGE LETTER OF AGREEMENT

between the Wardens and Vestry of St. *****s Episcopal Church, *******, Utah

and the Reverend ********* who has been called as Priest-In-Charge with the understanding that this tenure is to continue until shortly before the arrival of the new Rector, unless dissolved by mutual consent or decision as provided by the relevant Canons of the Diocese of Utah and of the General Convention of the Episcopal Church in the United States of America. It is further stipulated that the Priest-In-Charge can be considered as a candidate for the position of Rector of ******* Episcopal Church.

VESTRY RESPONSIBILITIES

All ministries other than those reserved to ordained leadership (such as administering the sacraments) are understood as mutual ministries of the laity of the congregation and the Priest-In-Charge. The Vestry shall lead the Laity to support and cooperate with *her in pursuit of parish goals.

The Vestry is legal agent for the congregation in all matters concerning its parish property and in its relationship with the Priest-In-Charge. The Vestry will see that she* is properly supported personally and organizationally as well as in the Vestry's financial obligations to her*.

RESPONSIBILITIES OF THE PRIEST-IN-CHARGE

The Priest-In-Charge is pastor and chief executive of ******** Episcopal Church. As such, this position must be undertaken prayerfully, intentionally and in spirit of cooperation and respect for all members of the leadership team and congregation. The Priest-In-Charge's ministry is the pastoral and canonical responsibility for the congregation. She* shall lead the Church as pastor, priest, and teacher, sharing in the councils of this congregation and of the whole church, in communion with the Bishop. She* shall work with the Vestry and other lay leaders to maintain the regular schedule of worship services and preaching, education, pastoral care and pastoral offices (weddings, funerals, baptisms), calling upon the sick and shut-in, visiting newcomers, and ongoing administration of the parish. She* shall supervise all parish staff in the exercise of their responsibilities and ministries, for which they shall be accountable to the Priest-In-Charge. She* shall also support the Vestry in its responsibilities.

The duties of the Priest-In-Charge include all duties prescribed by the Canons of The Episcopal Church and the Diocese of Utah, and the following:

1 WORSHIP

PASTORAL CARE

• Provide support and counsel to individuals and families who are grappling with death, illness or personal crisis in their own lives or those close to them. • Make home and hospital visits to members of the parish.

EDUCATION

• Develop and support programs for all ages in Christian education. • Develop and encourage training for all lay ministries of ******** Episcopal Church.

ADMINISTRATION

• Attend to the financial and fiscal life of the parish through proper stewardship of resources and cooperation with the Vestry and Parish Treasurer. • In concert with the Vestry, Junior Warden and Sexton ensure that the church building and grounds remain safe and well maintained. • In concert with the Vestry and the Diocese of Utah provide leadership for long range planning regarding use of space and the future needs of the parish community. • Update parish records and files to accurately reflect the current membership of the parish. In concert with the Vestry, update the parish computer to meet the administrative needs of the parish.

SECTION A- PRIEST-IN-CHARGE'S TIMES OF WORK AND LEAVE

1. The Priest-In-Charge shall work a minimum of 40 hours a week, which shall include Sunday activities. She* shall announce to the congregation what days of the week shall be her* regular days off of work. 2. She* will have the following periods of leave at full compensation: o National Holidays, to be taken so as not to interfere with worship for major occasions. o Vacation, at the rate of one month per year that shall include four Sundays. She* shall give thirty days notice to the Wardens and Vestry before taking vacation time. She* shall arrange for supply clergy, and the Vestry agrees to pay supply clergy at the rate established by diocesan policy. o Attendance at the Convention of the Diocese of Utah, the Bishop's Clergy Conference and any Clergy Days called by the Bishop. o Continuing Education leave at the rate of two weeks per year and not subject to being carried forward to successive years, and consistent with current diocesan policy. o Sabbatical Leave consistent with current diocesan policy.

2 SECTION B- PRIEST-IN-CHARGE'S COMPENSATION AND BENEFITS

The Priest-In-Charge's salary compensation will be the responsibility of the Diocese of Utah as established by diocesan policy at the rate of $______per annum, to be paid bi-monthly on the 15th and last workday of each month. Upon the Priest in Charge’s request, the Standing Committee will designate a portion of the total cash salary as “Clergy Housing Allowance” under the Federal Internal Revenue Code.

The Diocese of Utah shall pay the following benefits:

SECTION C- PRIEST-IN-CHARGE'S EXPENSES

1. Actual and reasonable travel expenses while on church business, at the current IRS reimbursement rate, plus out-of-pocket costs of parking, fees, tolls, etc., consistent with expense reimbursement guidelines of the Diocese of Utah. 2. The normal expenses of the Church's office operation, such as telephone, postage, office equipment, supplies, secretarial services, etc., are the direct expenses of the parish, as are the costs of church business long distance telephone calls.

SECTION D- DISCRETIONARY FUND

In accordance with the Canons of the General Convention, a Discretionary fund is to be established under the Priest-In-Charge's sole control, consisting of monetary gifts given to the Priest-In-Charge for this specific purpose and other contributions as agreed by the Priest-In-Charge and the Vestry. This fund will come from the following sources: $______from the annual budget of ______and other donations designated by the Priest-in-Charge or others for that purpose. The monies of the Discretionary Fund belong to the parish. Therefore, when the Priest-In-Charge leaves the parish, any monies left in the Discretionary Fund must be transferred to the custodianship of the Senior Warden.

SECTION E- SUPPLEMENTARY COMPENSATION

The Priest-In-Charge shall not charge for performing any rites of the Church (for example: baptisms, marriages, funerals). She* may receive income from other sources, such as fees and honoraria for professional services performed on personal time for groups unrelated to the parish or for sermons, books or articles published outside the parish.

3 SECTION F- USE OF BUILDINGS

In addition to use and control of the Church and Parish buildings for the discharge of the duties of the Priest-In-Charge's office, as provided by Canon law, the Priest-In-Charge shall have the right to grant use of the buildings to individuals or groups from outside the parish, following guidelines approved by the Diocese of Utah, the Priest-In-Charge and the Vestry.

SECTION G- MUTUAL MINISTRY REVIEW

There shall be an bi-annual discussion and mutual review of the total ministry of the parish, in order to provide the Priest-In-charge, Wardens and Vestry the opportunity to assess how well they are fulfilling their responsibilities to each other and to the ministry they share. Also, this review will act to clarify the expectations of all parties to help put any future conflicts in manageable form. A mutually agreed upon third party shall be engaged to facilitate the mutual ministry review process.

SECTION H- OTHER AGREEMENTS

1. All moving and travel expenses incurred in making the move from ******* to ***** UT shall be paid by *******Church/Diocese of Utah. 2. The Priest-in-Charge shall begin duties in the parish not later than September ***********, with pay and benefits becoming effective on ************. 3. In case of illness the Priest-In-Charge shall notify the Senior Warden. If she* is ill on a Sunday, she* shall arrange for supply clergy, and the Vestry agrees to pay the supply clergy at the rate recommended by the Diocesan Convention. 4. This Letter of Agreement shall be made part of the minutes of the Vestry meeting following its signing, and copies shall be given to each new Vestry member thereafter. 5. If the Priest-In-Charge and Vestry are in disagreement concerning interpretation of this Letter of Agreement, any party may appeal for mediation to the office of the Bishop of Utah, who is the final interpreter and arbiter of this Letter of Agreement.

Date ______(signed) ______Priest-in-Charge

Date ______(signed) ______Senior Warden

Date ______(signed) ______Bishop

EMPLOYMENT RESOURCE MANUAL FOR CONGREGATIONS AND DISTRICTS

The Lutheran Church—Missouri Synod

August 2012

To: Districts, Congregations and Schools of the LCMS

From: District Human Resources Committee

Subject: Employment Resource Manual for Congregations and Districts

Date: August 15, 2012

______

At the Conference of District Business Managers in November 2010, a committee was appointed with the task of revising and updating the Employment Resource Manual for Districts and Congregations. This manual serves as a guide to LCMS employers for the purpose of drafting their own personnel manuals related to employer and employee relations.

After extensive review and revisions by the committee, along with consultation by legal counsel of the manual's contents, the Employment Resource Manual is now available for LCMS employers. The manual can be found on the Lutheran Church—Missouri Synod Website (www.lcms.org) under the resources link at the top of the homepage.

We pray that this manual provides benefit to your local ministry and adds clarity to the creation or revision of your employers’ personnel, policy and administrative manuals.

In Christ's service,

District Human Resources Committee

PREFACE

There are many complexities in the various state employment codes, and the exemption of religious organizations from some state and federal employment laws. The committee updating the Employment Resource Manual hopes this document will be useful as a separate and distinct educational tool to assist congregations and districts of the Synod in understanding and applying good sound employment principles.

It is intended that the District Business Administrator or person(s) responsible within the congregation for human resource/personnel matters will use the contents of the Employment Resource Manual for Congregations and Districts as a reference tool and guide in performing the tasks necessary to provide effective management of the personnel working in the congregational setting or district office.

While some of the enclosed material represents federal statutes that may not be applicable to the church, it was determined that the information is of sufficient interest in the general area of personnel management to make it available for the individual congregation or district to determine its usage.

Please understand that the sample forms and checklists provided are merely suggestions as ways in which the congregation or district can organize and perform their functions.

This resource manual is intended to be an administrative aid to the congregations/districts to assist them in managing their employees according to employment laws. All the information provided is contingent upon the applicable federal, state and local laws. State and local laws vary, therefore; this manual is in no way intended to replace legal counsel from an attorney knowledgeable in the area of employment law.

TABLE OF CONTENTS Preface

1. Personnel Management

A. Authority ...... 1 B. Scope of Responsibilities ...... 1 C. Rights of Employees ...... 1 D. Communication of Policy ...... 2

2. Federal Employment Law

A. Age Discrimination in Employment Act of 1967 (ADEA) ...... 3 B. Americans with Disabilities Act (ADA) ...... 3 C. Consolidated Omnibus Budget Reconciliation Act (COBRA) ...... 4 D. Employee Polygraph Protection Act (EPPA) ...... 5 E. Employee Retirement Income Security Act (ERISA) ...... 5 F. Equal Pay Act (EPA) ...... 5 G. Fair Credit Reporting Act (FCRA) ...... 5 H. Fair Labor Standards Act (FLSA) ...... 6 I. Family Medical Leave Act (FMLA) ...... 9 J. Genetic Information and Non-Discrimination Act (GINA) ...... 10 K. Immigration Reform and Control Act (IRCA) ...... 10 L. National Labor Relations Act (NLRA) ...... 10 M. New Hire Reporting ...... 10 N. Older Workers Benefit Protection Act (OWBPA) ...... 11 O. Pregnancy Discrimination Reconciliation Act (PRWORA) ...... 11 P. The Occupational Safety and Health Act (OSHA) ...... 11 Q. Title VII of the Civil Rights Act of 1964 (Title VII)...... 11 R. USERRA ...... 12 S. Worker Adjustment Retraining Notification Act (WARN) ...... 13

3. New Hire Process

A. Selection Process ...... 14 B. Position Description ...... 14 C. Calls/Appointments ...... 15 D. Recruitment ...... 15 E. Application ...... 15 F. Interviewing ...... 16 G. Pre-Employment Tests ...... 16 H. Medical Examinations ...... 16 I. Liability for Negligent Hiring ...... 17 J. Reference and Background Checks ...... 17

4. Compensation and Benefits

A. Salaries ...... 18 B. Benefits ...... 18

5. Payroll

A. Payroll Withholdings ...... 20

6. Personnel Files/Recordkeeping

A. Posting Requirements ...... 22 B. Record Retention ...... 22 C. Personnel Files ...... 24 D. Attendance Records ...... 26

7. Performance Management

A. Performance Reviews ...... 27 B. Training ...... 27 C. Disciplining Employees ...... 27 D. Discipline and Termination Procedures ...... 28 E. Grievance Procedures ...... 30

8. Resignations/Terminations

A. Voluntary Resignations ...... 31 B. Involuntary Terminations ...... 31 C. Retirement ...... 33 D. Exit Interviews...... 33

9. Health, Safety and Security

A. Safe Working Environments ...... 35 B. Security ...... 35 C. Prohibition of Violence ...... 35 D. Emergency Contacts ...... 35 E. Workplace Injuries/Serious Illnesses ...... 36 F. Workers Compensation ...... 36

10. Sample Forms ...... 37 thru 81

CHAPTER 1

PERSONNEL MANAGEMENT

INTRODUCTION

Personnel management in any organization, especially in the congregational setting, is intended to ensure the effective and efficient use of the God-given talents bestowed upon the congregation through its employees.

While it is certainly expected that our Christian ethics will lead us to the do the right thing in caring for and nurturing our employees, there are a myriad of legal requirements that regulate the employment relationship. The congregation, like other organizations, must be educated in order to meet the legal obligations in the area of employment law that are applicable. Churches should know and understand employment law, have up-to-date employment policies and a commitment to fair employment. By doing this, a good working environment will develop and risk of lawsuits will be diminished. No employment program will eliminate all potential lawsuits.

It is recommended that an employee handbook predicated on federal, state and local laws be prepared and utilized by the districts and congregations. The Employment Resource Manual for Congregations and Districts was prepared to provide a model to assist in the process. When finalized all rules and regulations that are contained in the handbook should be followed and enforced equally and equitably for all employees. When viewing a handbook, it could be utilized as though it was an "implied contract." Therefore, the employment-at-will doctrine (reduce staff at will) may not apply if policies are not properly written.

A. AUTHORITY

In order to provide the necessary authority and to provide clean lines of communication within the congregation/district, it is important that an individual, board or committee be identified as having responsibility for the oversight of the management of and definition of personnel issues and policies established and followed within the congregation/district.

B. SCOPE OF RESPONSIBILITIES

The individual/board/committee responsible for personnel should serve as a resource for interpreting policy and for providing direction to the Human Resources administration. The committee is responsible to assure appropriate policies, procedures, and systems for a caring environment are in place for church workers.

C. RIGHTS OF EMPLOYEES

All employees should be made aware that their views and input will be respected and considered; however, rights or privileges which accrue by reason of the congregation’s/district’s personnel policies shall not in any way limit or restrict the authority of the congregation/district to amend, correct, add to, or delete from the personnel policies and their equitable application.

D. COMMUNICATION OF POLICY

The 2010 edition of the Handbook of The Lutheran ChurchMissouri Synod which sets forth the constitution and by-laws of The Lutheran ChurchMissouri Synod and the Congregation/District Employee Handbook should serve as the official communication vehicles which outline for employees the policies related to Human Resources. All employees should receive or be given access to an Employee Handbook at the time of employment. The individual/board or committee should update the Employee Handbook as required. It should be made clear that it is the responsibility of employees to keep their handbooks up-to-date as policies are changed, deleted, or added when changes are distributed.

CHAPTER 2

FEDERAL EMPLOYMENT LAW

INTRODUCTION

The federal government has passed various laws against discrimination and they have varying effects on churches. The United States Department of Labor and the Equal Employment Opportunity Commission operate web sites designed to assist employers and employees in addressing legal questions related to the workplace. The addresses of the web sites are www.dol.gov and www.eeoc.gov. Following is a review of the federal employment laws and their implications:

Local or state laws may affect implementation of these laws in each state. Each church should determine its situation based on consultation with local legal counsel and relevant state law. This is a general review of federal anti-discrimination laws.

A. AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA) (Applies to employers employing 20 or more employees)

The act prohibits employers from discriminating on the basis of age against applicants and employees who are age 40 and above. A church is subject to ADEA if it employs 20 or more.

B. AMERICANS WITH DISABILITIES ACT (ADA) (Applies to private employers employing 15 or more employees) www.ada.gov

Employment Title I of the ADA addresses employment discrimination. The law prohibits covered employers from discriminating against a "qualified individual with a disability." The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.

A qualified individual with a disability is a person who meets legitimate skill, experience, education or other requirements of an employment position that he/she holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.

An individual is considered to have a “disability” if he/she has "a physical or mental impairment that substantially limits one or more of the major life activities, has a record of such an impairment, or is regarded as having such an impairment.” The Act includes a description of a reasonable accommodation by the employer as any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability

to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities. The Americans with Disabilities Act was amended effective January 1, 2009. As amended, the consideration of mitigating measures is eliminated and the standard for qualifying as a “person with a disability” is lowered. This amendment makes it easier to bring forth disability claims as a person can be “regarded as” disabled versus being documented as having a disability.

Accommodations Churches are specifically exempted from the ban on discrimination in public accommodations. Section 307 of the Act specifies that these provisions "do not apply to…religious organizations or entities controlled by religious organizations including places of worship."

The Act specifies that "no individual shall be discriminated on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." Places of public accommodation are defined as including those whose operations "affect commerce." They are specifically defined to include auditoriums or "other places of public gathering," day care centers, and "private schools." Prohibited discrimination includes "a failure to remove architectural barriers, and communication barriers, that are structural in nature, in existing facilities…where such removal is readily achievable..." If removal of a barrier is not readily achievable, then prohibited discrimination includes a failure to make the accommodations available "through alternative methods if such methods are readily achievable." Although churches are specifically exempted from the ban on discrimination in public accommodations, if congregations rent their facilities to an entity that is subject to Title III of the Americans with Disabilities Act, the renter, and not the congregation, must comply with all the requirements of that section of that Act.

Church and school employers should be aware of all applicable rules and regulations as set forth in the Americans with Disability Act. Employers need to understand the legal restrictions about discriminating against disabled individuals. When the rules and regulations are not applicable to a church and/or school, christian care and concern should be exercised by the organization by not discriminating against persons with disabilities and should, where reasonably possible without undue hardship, take the lead in making reasonable accommodations for disabled workers as set forth in the ADA.

C. CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT (COBRA) (Applies to employers with 20 or more employees)

This law requires employers to provide the continuation of “group health” insurance coverage for a period of 36 months to employees and possibly their spouses and children who might otherwise lose coverage. The Concordia Plan Services as a “Church Plan” is exempt from COBRA; however they offer a 15 month extension of coverage which they administer for the congregations in the Concordia Health Plan.

If you are not in the Concordia Health Plan, you need to determine whether your health insurance provides the administration for COBRA. If not, it is the responsibility of the employer.

D. EMPLOYEE POLYGRAPH PROTECTION ACT (EPPA) (Applies to employers involved in interstate commerce: very broadly defined by law)

This law prohibits employers from conducting polygraph tests on applicants and employees except under certain limited situations.

Although it would be unlikely that a congregation would want to routinely use a polygraph test, it may wish to a polygraph in a situation where there is suspicion of theft of some other type of severe misconduct. Any congregation or district wanting to pursue a polygraph test should do so only with counsel and guidance from a knowledgeable attorney.

E. EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA) (Applies to all private employers (one or more employees))

It exempts “Church Plans” which are defined as an employee benefit plan established and maintained by a church or an association or convention of churches that are tax exempt under Internal Revenue Code 501(a).

This law sets the minimum standards that apply to the set-up, administration and continuation of certain benefits.

F. EQUAL PAY ACT (EPA) (Applies to employers involved in interstate commerce (very broadly defined by law))

The Equal Pay Act requires employers to provide equal pay to male and female employees who are doing equal work. Therefore, if you have two similar positions of responsibility with the same duties and education requirements where one is male and one is female they should be paid equally. Various business reasons can justify a difference if they relate to performance, seniority or other legal reasons to support the difference in pay. The Lily Ledbetter Fair Pay Act (15 employees for sex; 20 employees for age) requires proof that gender pay differences are: related to job performance; not sex-based and; justified by business necessity.

G. FAIR CREDIT REPORTING ACT (FCRA) (Applies to all private employers with one or more employees)

This law relates to conducting background checks and investigations. When a consumer agency is used, the law requires employers to provide notice and get consent prior to conducting a credit report or other types of background screenings on employees or applicants. A release form meeting this requirement is included in the forms section of this manual.

In addition, the law requires the employer to notify the employee or applicant prior to taking adverse action if taken based upon information received in a report; and sets the standards that an employer must follow to destroy consumer records. Therefore before a decision is made not to hire an individual because of negative information that has been provided, you must provide the applicant or employee with the name of the company that provided the negative information and again give them their rights under the Fair Credit Reporting Act to dispute the findings if they are in error.

H. FAIR LABOR STANDARDS ACT (FLSA) www.dol.gov

The Fair Labor Standards Act (FLSA) prescribes standards for basic minimum wage, overtime pay, recordkeeping, and child labor.

Employee versus Independent Contractor A significant component for employers to consider applicability of FLSA to their workers is to determine the “employment relationship” with workers and whether they are defined as employee or independent contractor. An employer has no obligation under FLSA for independent contractors.

There is no single rule or test for determining whether an individual is an independent contractor or an employee for purposes of the FLSA. Consideration is to be given on the total activity or controlling situation. Following are factors that courts have considered significant in determining whether an individual is an independent contractor or an employee:

x The extent to which the services rendered are an integral part of the employer’s business. x The permanency of the relationship. x The amount of the alleged contractor’s investment in facilities and equipment. x The nature and degree of control by the employer. x The alleged contractor’s opportunities for profit and loss. x The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor. x The degree of independent business organization and operation.

There are certain factors which are immaterial in determining whether there is an employment relationship. Such facts as the place where work is performed, the absence of a formal employment agreement, or whether an alleged independent contractor is licensed by State/local government are not considered to have a bearing on determinations as to whether there is an employment relationship. Additionally, the Supreme Court has held that the time or mode of pay does not control the determination of employee status.

Additionally, once a determination is rendered to distinguish between employee and independent contractor, you should consult the Internal Revenue Code’s definitions relating to the relationship for tax withholding purposes.

As defined by the IRS, as a general rule an “individual is an independent contractor if the payer [employer] has the right to control or direct only the result of the work and not what will be done and how it will be done.” An employee (common-law employee) is, “anyone who performs services for you and you can control what will be done and how it will be done.”

Exempt versus Nonexempt Employees The distinction of an exempt employee is important in that exempt employees are excluded from the minimum wage and overtime provisions of FLSA. Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the regulations.

There are four main exemptions under the FLSA and all of the qualifying tests for each exemption must be met.

Exempt Employee Qualifying Exemption Test x The employee must be compensated on a salary basis at a rate not less than $455 per week; x The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; x The employee must customarily and regularly direct the work of at least two or more other

full-time employees or their equivalent; and Executive x The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight. x The employee must be compensated on a salary or fee basis at a rate not less than $455 per week; x The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the Administrative employer’s customers; and x The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. x The employee must be compensated on a salary or fee basis at a rate not less than $455 per week; x The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which

includes work requiring the consistent exercise of discretion and judgment; Professional x The advanced knowledge must be in a field of science or learning; and x The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

x The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be Outside Sales Employee paid by the client or customer; and x The employee must be customarily and regularly engaged away from the employer’s place or places of business.

Child Labor Provisions The FLSA restricts the hours and conditions of employment for minors (children under the age of 18). Employers should obtain an age certificate approved by the Wage and Hour Division of the Department of Labor for all minors.

In general, minors are not allowed to perform tasks that may be detrimental to their health, physical and mental safety.

Age FLSA Regulations Under age 14 x Prohibited from most non-farm work x May be employed by parents, except in hazardous industries x Certain jobs permitted (for example, actors, newspaper carriers) Ages 14-15 x During school, cannot work more than three hours/day, 18 hours a week x During school vacations Ages 16-17 x Prohibited from working on hazardous jobs x No other restrictions

Minimum Wage A provision of FLSA is the federal minimum wage. Due to the possible frequent changes to the minimum wage rate, consult the Department of Labor (www.dol.gov) website to obtain the most current information. In cases where Federal and State law have different minimum wage rates, the higher standard applies.

Overtime Pay All nonexempt employees covered by FLSA must receive overtime pay for hours worked in excess of 40 hours in a workweek of at least one and one-half times their regular rate of pay. The regular rate of pay includes basic pay plus non-discretionary bonuses, shift premiums, production bonuses, and commissions. It does not include other supplemental earnings such as discretionary bonuses, employers’ contributions to benefit plans, pay for time not worked, or small ($25 or less) non-cash gifts. (Check with your appropriate state agency for applicable state laws regarding overtime pay.)

The FLSA requires that overtime be paid on hours worked, not time compensated. Therefore, no overtime needs to be paid on sick, personal, holiday, or vacation pay or other pay for time not worked.

x Workweek A workweek is any fixed, recurring period of 168 consecutive hours (7 days x 24 hours). A workweek can begin on any day of the week, but it must be consistent.

x Compensatory Time in Lieu of Overtime Compensatory time for nonexempt employees is not allowed in the private sector.

School Teachers: Parochial school teachers are typically exempt employees, therefore overtime pay for out-of- classroom extra-curricular activities is not required.

Preschool Teachers: Unless the preschool teacher is supervising an assistant teacher or classroom aide, they are non-exempt, and therefore, must be paid overtime for out-of-classroom extra-curricular activities that exceed the normal overtime requirements according to state and federal laws. If they attend a mandatory meeting or take work home, they must be paid for that time.

On-call/standby time If the employee’s time is restricted and personal business is not allowed, the hours are counted as time worked. When an employee is off the premises and on call (near a phone or wearing a beeper), the key is the restriction of the employee’s freedom.

Preparatory/concluding activities Activities that are done prior to and post job assignments are considered time worked if they are done for the benefit of the employer. (Deliveries, cleaning equipment)

Waiting time An employee does not have to be paid for the time spent waiting for the work shift to begin provided no work is being done. Payment is made however, if the employee’s shift has begun but no work is available.

Meals and breaks Employers are not required by federal law to provide meal or rest breaks, but state law may require such breaks. When breaks are given, if they are 5 to 20 minutes they are considered time worked under federal law. Provided the employee is completely relieved of his or her job duties, meal periods of 30 minutes or longer are not considered as time worked under federal law, unless the employee is prohibited from leaving his or her job post.

Travel time Commute time is normally not considered work time unless the employee is responding to a work need beyond their regular hours from home or transporting necessary work equipment to and from a work site.

Travel during work time from one location to another or to a meeting is considered time worked.

Travel out of town in the course of a workday is work time. An employee who travels away from home overnight is not considered working in off-hours or while a passenger on a plane, train, etc. if the travel is done outside of regular work hours. Travel time on weekends that falls within the normal daily work hours is considered time worked.

Training time Training is normally considered work time unless the following four conditions are met: x Attendance if voluntary. x Attendance is outside the normal working hours. x The event is not directly job related. x The employee performs no productive work during this period.

I. FAMILY AND MEDICAL LEAVE ACT (FMLA) (Applies to employers employing 50 or more employees.) (www.dol.gov)

The act requires certain employers to provide up to twelve weeks of unpaid leave to eligible employees because of the birth or adoption of a child or because of a serious health condition of the employee or the employee's child, parent or spouse. In addition, the Act permits leave up to 26 weeks to care for a covered service member or veteran with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member. It is recommended that the employer review the required information that must be provided to an employee.

The law does not specifically exempt churches from coverage; however, it applies to employers with 50 or more employees within a 75 mile radius and to schools regardless of the number of employees.

New FMLA regulations were effective 01/06/2009 which includes:

x Certification / Employee Notice Rules x Employer rights to verify need for leave x Changes to rules for award/bonuses x Expansion of FMLA to provide family military leave (active duty leave and military caregiver leave)

This law was passed to strengthen the family and provide medical leave. Voluntary compliance with the spirit of

the act whenever possible and practical by the church will demonstrate good christian characteristics. Organizations that are not covered by the FMLA should develop leave of absence policies that provide unpaid leave under similar circumstances. As the FMLA has numerous requirements, it is suggested that if the organization is not subject to the FMLA, the organization should adopt policies that provide leave under similar circumstances but does not require the strict compliance with the FMLA requirements.

J. GENETIC INFORMATION AND NON-DISCRIMINATION ACT (GINA) (Applies to employers having 15 or more persons employed)

This law became effective November, 2009 and prohibits discrimination based on genetic information. Employers cannot use genetic information in making employment decisions and cannot ask for genetic information (i.e. family history.)

K. IMMIGRATION REFORM AND CONTROL ACT (IRCA) (Applies to employers having one or more persons employed)

The law states that it is unlawful for a person or entity to hire or recruit an unauthorized alien. Furthermore, it is unlawful for an employer to continue to employ an alien when the employer knows the alien is or has become unauthorized.

This law requires a congregation to collect I-9 Forms from new employees. The I-9 shows evidence of the congregation’s effort to inspect and verify documentation demonstrating the person is eligible for employment in the U.S.

A sample I-9 is included in Chapter 10, Sample Forms.

L. NATIONAL LABOR RELATIONS ACT (NLRA) (Applies to employers involved in interstate commerce)

The law regulates the relationship between employers and unions. It restricts employers and unions from engaging in unfair labor practices and protects employees who participate in concerted activities to improve working conditions, whether or not the workplace is union.

M. NEW HIRE REPORTING

The requirements for reporting new hires are a part of the federal welfare reform legislation called the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). A major focus of PRWORA is to help child support officials track down absent parents in order to collect child support payments.

As an employer you must report information on newly-hired employees to a designated state agency shortly after the date of hire. The time frame for reporting will be specified by the state in which you reside.

On all newly hired individuals, the following information is to be provided to the state agency assigned:

Reporting Employer’s Information: Newly Hired Employee Information: Name Name Address Address Federal Employer Identification Number Social Security Number Date of Hire

Contact the state agency within your state to determine their requirements for acceptable methods of reporting.

N. OLDER WORKERS BENEFIT PROTECTION ACT (OWBPA) (Applies to employers with 15 or more employees)

Protects older workers from age discrimination related to the provision of benefits. It established the criteria to be used in determining whether equal benefits have been provided and requires employers to meet certain wording requirements in establishing waivers for the right to sue for age discrimination.

O. PREGNANCY RECONCILIATION ACT OF 1978 (PRWORA)

This act is an amendment to Title VII of the Civil Rights Act of 1964. It prohibits disparate treatment of pregnant individuals in all areas of employment.

The basic principle of the Act is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work. A woman is therefore protected against such practices as being fired, or refused a job or promotion, merely because she is pregnant.

In the area of fringe benefits, such as disability benefits, sick leave and health insurance, the same principle applies. A woman unable to work for pregnancy-related reasons is entitled to disability benefits or sick leave on the same basis as employees unable to work for other medical reasons.

Employers should be aware of an employee’s right to take leave under the Family and Medical Leave Act which applies to the birth of a child, among other situations.

Employers should also abide by health care legislation which amended FLSA in March, 2010 and requires employers to provide “reasonable” unpaid breaks to nursing mothers to express milk for their infants.

P. THE OCCUPATIONAL SAFETY AND HEALTH ACT (OSHA)

The Occupational Safety and Health Act (OSHA) protects workers from unsafe conditions in the workplace. OSHA applies to "employers" engaged in a business affecting commerce that has employees.

According to federal regulations, churches are subject to OSHA when they "employ one or more persons in secular activities." Any person who performs or participates in religious services is not considered to be covered under OSHA while performing or participating in religious services.

Churches should be aware that if an employee complains about unsafe work conditions at a church, an OSHA inspection could follow. Unsafe conditions inside church buildings and on church grounds can lead to lawsuits not only from employees, but also from church members and other people who visit the premises.

Q. TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 (TITLE VII) (Applies to employers employing 15 or more employees)

Title VII applies to employers with 15 or more employees in each working day in (20) or more calendar weeks in the current or preceding calendar year. However, churches are exempt by statute from certain discrimination laws with respect to hiring based on religion. Further, the law provides a ministerial exception that prohibits ordained and commissioned ministers and possibly other church workers who fall within the ministerial exception, as governed by federal law, from making claims under the employment discrimination laws.

Churches are not specifically exempt by statute (except with respect to religious discrimination defined later). However, Title VII only applies to employers with 15 or more employees in each working day in twenty (20) or more calendar weeks in the current or preceding calendar year. Nevertheless, it would be beneficial to the LCMS ministry if all our churches, including those not required, would comply with this law whenever possible.

The church may discriminate with respect to religious preference in hiring since the law grants this broad exception to them. They can also discriminate based on sex with respect to employment of ordained ministers. These exemptions also apply to most church schools, because most church schools clearly and pervasively are religious institutions and many also are not separately incorporated from the church. The church must have a clear hiring policy and enforce it unilaterally (to discriminate on these bases or not at hiring). The church may wish to discriminate with respect to religion to ensure employees reflect their religious teachings and beliefs.

The church needs to be aware and understand that any type of discriminatory (under Title VII, the ADA and ADEA) harassment is prohibited.

Sexual Harassment Sexual harassment is often difficult to define. The following is for guidance and is not intended as the sole definition of the term. Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature when:

x submission to such conduct is made either explicitly or inexplicitly a term or condition of an individual's employment; x submission to or rejection of the conduct is used as the basis for an employment decision affecting the harassed employee; or x the harassment has the purpose or effect of unreasonably interfering with an employee's work performance or creates an intimidating, hostile, or offensive work environment.

The employer may want to print the definition in their employee handbook.

If the alleged harassment involves a rostered or appointed employee, contact should be made immediately with the district president.

R. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA) (Applies to all private employers with one or more employees)

This law prohibits discrimination against applicants or employees who serve in the military. It also requires employers to reinstate employment for up to five years for employees who serve in the armed services and

continue uninterrupted their benefits and seniority and prohibits firing, (except for cause) after return from the service for a period of one year.

This law protects the rights of individuals who are in the military and called to duty either active or reserved and are released with an honorable discharge. It mandates that the employer provide them with the time off, up to five years, to meet their obligations without adverse treatment. It requires the employer to keep their benefits in tact as if they had not been absent from the workforce. The employee would also accrue vacation time for that period so that when he/she returns, they are eligible to take a vacation. Therefore, all benefits accrued during the time of service are to be applied upon the return of the individual to work following their release from duty. (An example would be that if a three percent increase in pay was given to employees during an employee’s absence due to military service, he/she would be paid their former salary increased by 3 percent).

There are also obligations for the employer to reinstate the employee after return from service at the same or equal positions they were in prior to military service. The obligation on the employee is that they must return to work within specific time frames.

For those employees on leave for 30 or fewer days – they must report back on the first scheduled workday following their release

For employees on leave more than 30 days but less than 181 days – they must submit an application for reemployment no later than 14 days after completing service.

For employees on leave for longer than 181 days – they must submit a written or oral application for reemployment no later than 90 days after their period of service is complete.

Employees who were injured or became ill during their military service – must report to the employer or submit an application for reemployment once they have recovered. (This must be no longer than two years)

S. WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT (WARN) (Applies to employers with 100 or more employees)

Requires a sixty day notice to be given to employees who will be losing their employment due to large layoffs or a plant closing with few exceptions.

CHAPTER 3

NEW HIRE PROCESS

INTRODUCTION

Finding and retaining capable and skilled workers for the church is extremely important to all areas of service within the congregation or district. Each worker should be selected on the basis of whether they are qualified, honest, skilled and motivated by a desire to serve the church.

Unfortunately, even in the church, we become targets of lawsuits for negligent hiring if a worker commits a wrongful act. Also, discharged employees who feel wronged, sometimes bring lawsuits for wrongful discharge. Thus it is imperative that the employer operates within legal requirements and exercise diligence under guidance of the Holy Spirit in the selection of all workers.

A. SELECTION PROCESS

The selection process should be done in accordance with applicable federal and state employment laws. Staffing should be done with the knowledge that The Lutheran Church—Missouri Synod and its entities are exempt from the provision of the Civil Rights Act of 1964 which prohibits discrimination based upon religion, and therefore the congregation/district retains the right under federal law to show preference in hiring persons who are members in good standing of a congregation of the Synod for all job positions. While most state laws exempt religious corporations from the prohibition on religious discrimination, some states limit the exemption to job positions for which religion is a bona-fide occupational qualification, such as the pastor or a teacher.

B. POSITION DESCRIPTION

It is recommended that written job descriptions be on file for each position filled. These job descriptions should be as detailed and accurate including all essential functions. When developing job descriptions, you should be aware that the Americans with Disabilities Act may be applied to positions based on the job descriptions for the positions.

Prior to proceeding with the selection of staff, a position description should be written and approved. The position description should be used as the basis for establishing the appropriate hiring criteria.

A position description is a useful tool for the congregation/district as well as for the employee. The position description provides the title of the position, to whom the position reports (is accountable), provides a summary of the job duties, and indicates the qualifications necessary for success. A well-defined position can build successful working relationships where the expectations are clearly spelled out for the employee and the performance of the individual can be measured against the position description. Sample position descriptions are included in Chapter 10, Sample Forms.

C. CALLS/APPOINTMENTS

Calling Ministers of Religion Only Ministers of Religion – Ordained (Pastors) or Commissioned (Teachers, Directors of Christian Education (DCE), Directors of Christian Outreach (DCO, Directors of Parish Music, Deaconesses, Parish Assistants and Certified Lay Ministers) on the roster of Synod are eligible for a call or appointment. These individuals only achieve eligibility for a Call through completion of a prescribed course of study and diploma from a Synod institution or fulfilled requisites of a colloquy program. (See Synod Handbook). This has implication for the employing congregation or eligibility for housing allowance and withholding employee taxes.

The Call Committee elected to represent the congregation requests nominations from congregants and names of qualified candidates from the District President. The District President’s office provides Personal Information Forms (PIF) for all candidates. The selection process is prescribed by The Synod Handbook.

The same process is followed for Ministers of Religion – Ordained (Pastors) or Commissioned (Teachers, Directors of Christian Education (DCE), Directors of Christian Outreach (DCO), Directors of Parish Music, Deaconesses, Parish Assistants and Certified Lay Ministers) with information generally provided by congregants and the District President or appropriate District Program Executive.

The decision to Call is only made by the Voters Assembly/Congregational Assembly and is never delegated to a smaller body; however often a Call committee makes recommendations to the Calling body. For information about the Call and its practical application contact your district office.

D. RECRUITMENT

In selection of lay members (non-Ministers of Religion) or ministers as defined by federal law, under federal law churches are held to the same standards as secular employers, with the exception that we may give hiring preference to members of The Lutheran Church—Missouri Synod with respect to any aspect of employment. The employer is urged to use the Model Employment Application Form which states this hiring preference as part of the employee selection process (See Chapter 10, Sample Forms).

In instances where it is necessary to recruit to fill a particular position, caution should be used in advertising for the open position. No reference should be made in reference to the protected categories of Title VII of the Civil Rights Act. It is recommended all job postings summarize the essential functions of the position as well as provide an outline of the required qualifications.

E. APPLICATION

All applicants should complete and sign a detailed application form (please refer to the sample application form in Chapter 10, Sample Forms) prior to the interview. This form will provide the interviewer with information about the applicant’s employment history and can also be valuable in providing a wealth of additional information. In addition, the application can provide a commitment by the applicant to live in accordance with the moral standards of The Lutheran Church—Missouri Synod and give the required consent for the employer to conduct the necessary reference and background checks prior to extending a job offer. The Fair Credit Reporting Act requires that specific notice be provided to an applicant for employment before a background check may be conducted on

the applicant by a consumer reporting (i.e. credit) agency. The notice must contain certain language, and must be set forth on a separate sheet.

F. INTERVIEWING

The application and personal interview is by far the most used tool in selecting new workers. However, you should be aware there are federal and state laws that limit your conduct during this process unless a religious exemption and/or ministerial exception apply.

x Under the Americans with Disabilities Act (ADA) you may not ask if a person has any disabilities or a disability that would affect job performance. You must make reasonable accommodation to a disabled person in the application interview and testing process. This may mean holding interviews in a wheelchair accessible area or providing written questions to a hearing impaired person. x You may not ask about prior Worker’s Compensation Claims. x The questions asked on the application or in the interview are presumed to be the basis of the hiring decision. Therefore, as a general rule, congregations should avoid inquiries that identify the applicant’s age, sex, disability or ethnicity. Congregations need to be aware that, in certain situations, these questions may violate federal, state, or local anti-discrimination laws. The best policy is to ask only questions justified by business necessity. x According to EEOC guidelines, the following are examples of questions you can and cannot ask during an employment interview.

APPROPRIATE QUESTIONS Can you meet the attendance requirements of this job? Can you perform this job with or without reasonable accommodation? Do you have the required licenses to perform this job?

ILLEGAL QUESTIONS Do you need reasonable accommodation to perform this job? Do you have a disability that would interfere with your ability to perform this job? How many days were you sick last year? Have you ever filed for workers’ compensation?

G. PRE-EMPLOYMENT TESTS

Performance or aptitude tests are designed to identify candidates most likely to succeed with skills required for a particular job. These tests are legal if they do not screen out individuals in protected groups as demonstrated through a legal validation of the instrument, i.e., females, minorities or individuals with a disability, in greater proportion than, for example, white males. Personality tests should not be used for pre-employment screenings. Again, this exempts those positions in the church where LCMS teachings prescribe eligible candidates.

H. MEDICAL EXAMINATIONS

Although few congregations/districts will ask prospective employees to submit to a physical, you should be aware of the limitations on their use. Applicable laws are the ADA and various state laws. These laws may prohibit discrimination on the basis of a disability which may include conditions such as AIDS, cancer, epilepsy, diabetes, sensitivity to tobacco smoke, back injuries, mental illness and alcoholism.

A significant requirement under ADA is that medical examinations only be given after an offer of employment is made.

I. LIABILITY FOR NEGLIGENT HIRING

Lawsuits against employers by third parties (employees, members of the congregation/district or nonmembers) may be filed for negligence in hiring an employee who is dangerous and caused injury to such third party. These suits will allege the congregation/district failed to adequately screen the employee in the hiring process. An equally serious need for background checks involves hiring workers who will be around children assuring there have been no charges of child molestation. Congregations should check state law for requirements that may be applicable to workers who will be around children.

J. REFERENCE AND BACKGROUND CHECKS

Employment references can be difficult to get because most employers follow a standard neutral reference policy. The church, however, has a responsibility to provide sufficient proof that reasonable steps were taken to determine that a person employed is not known to or pose a threat to others. To insure this, references should be checked after the best candidate is identified but prior to extending an offer of employment. All references should be documented to support the church's defense that precautions were taken in this regard.

Many states have enacted laws that specifically prohibit an employer from obtaining and using credit information except in limited circumstances. State law should be reviewed prior to requesting any background check. The following criteria may serve as a guide in determining the type of background checks to do:

x Reference checks (verification of performance and prior job related information) should be done on all employees. Such reference checks should consist of contacting at least two personal references and at least one prior employer (if applicable). x Positions that require an individual to operate a vehicle, either owned or leased by the congregation or district should include investigation of the applicant’s driving record. x Positions that require an individual to represent the congregation or district in an activity that calls for access to members’ financial information (e.g., fundraisers, treasurers, assistant treasurers, etc.) should include a background check and an investigation of the applicant’s credit history. x Positions that require an individual to represent the congregation/district through visits to members in their homes should include a criminal investigation of the applicant. x Positions that require regular access to or control of the congregation’s/district’s assets, such as cash, equipment, and/or investments that exceed $5,000 should include investigation of the applicant’s credit history.

Information obtained from such reference and/or background checks should be maintained strictly confidential as a part of the applicant’s personnel file or in a confidential file created to document the filling of the position.

The employer may be liable for the actions of volunteers, therefore; it is recommended background checks are completed on volunteers.

Please refer to the LCMS National Contract Program for discounted providers of background checks and additional information.

CHAPTER 4

COMPENSATION AND BENEFITS

INTRODUCTION

Compensation consists of both salary and benefits. The compensation paid to an individual should normally reflect the value of the position’s responsibilities. It should also be comparable to what others within the local area are earning for a similar type of work. However, compensation can be very complex. It is also tied to what a congregation/district is capable of and willing to pay for the work to be done.

A. SALARIES

For called and/or appointed church workers, your district may have in place District Salary Guidelines to assist in determining reasonable pay for these workers. These guidelines normally take into consideration the education and experience of the person, as well as the geographical location. For non-called/non-appointed workers that are in business related positions the local labor market is a reasonable place to focus in determining what the local rate of pay is for similar positions.

In establishing the wage and salary guidelines, the desire to retain and attract employees, and applicable federal and state laws effecting not-for-profit agencies must be considered. Marital status, gender, age, or perceived financial need should not be considered when establishing employee compensation or when determining subsequent wage/salary increases.

The appropriate congregation committee is encouraged to consider cost-of-living increases which may affect all positions and establish parameters within which merit increases may be granted for each position to the extent that funds are available.

Merit increases should be granted on the basis of clear objective guidelines based on performance evaluations or other criteria for each position.

B. BENEFITS

The information below concerning group employee benefit plans pertains specifically to the Concordia Plan Services since these are the benefit programs established by The Lutheran Church—Missouri Synod for its congregations, schools, and other employers.

If your congregation is participating in the Concordia Retirement Plan and the Concordia Disability and Survivor Plan, enrollment of regular full-time and regular part-time employees is required. The cost of these two plans is paid by the congregation.

If your congregation is participating in the Concordia Health Plan, enrollment must be offered to all regular full- time and regular part-time employees as determined by the congregation. Regarding payment of premiums, the congregation’s policy must be applied on a uniform and nondiscriminatory basis to all employees.

In addition to the benefits provided through Concordia Plan Services, the congregation/district should establish policies which define the other benefits provided to its workers such as vacation, leave, continuing education, recognized holidays etc.

Employees Ineligible for Benefits It is suggested employees sign a statement recognizing they are part-time and/or temporary, and therefore not entitled to benefits. (See sample form in Chapter 10 of this manual)

Flexible Spending Accounts If the employee pays for health coverage, you may want to set up a Cafeteria Plan so that the money can be deducted from the employee's paycheck before taxes are withheld. This reduces the employee's wages reportable for income tax and Social Security/Medicare taxes. For information about a Cafeteria Plan, contact Concordia Plan Services.

CHAPTER 5

PAYROLL

(Reference Chapter 3 of Congregational Treasurer's Manual)

A. PAYROLL WITHHOLDINGS

Employees who are not Ministers of the Gospel for tax purposes must have various deductions taken from their pay. These deductions include federal and state income taxes and Social Security and Medicare taxes. The Internal Revenue Service and each state Department of Revenue publish withholding tables at least annually based on personal earnings and the number of exemptions claimed by each worker to satisfy income tax withholding requirements. The worker, by use of the W-4 Form (and/or appropriate state form), states the number of exemptions claimed and any additional dollars wished withheld beyond the amount indicated in the tax withholding tables. The amounts withheld for Social Security and Medicare taxes are at a fixed percentage of earnings.

Remitting to Various Governments After making these deductions from an employee's paycheck, the congregation is responsible for reporting and remitting these dollars to the appropriate government agency. Congregational officers can be held personally liable if these dollars are not remitted in a timely manner. Dollars withheld for federal income tax, Social Security and Medicare purposes must be remitted on a monthly or other basis depending on dollars withheld and 941 reports are to be sent in quarterly. The Internal Revenue Service routinely sends reports to all employers explaining withholding requirements as it relates to their specific situation. Some state and local governments also require reports and remittances on a regular basis. Exact requirements vary from state to state and locality to locality. Your LCMS District Office will be able to tell you the requirements for your state, as published in The Congregational Treasurer's Manual. You should also check for any city/county withholding requirements.

Ministers Not Subject to Withholding Ministers of the Gospel are not subject to involuntary tax withholdings from their pay. Ministers may elect, and if agreed to by the congregation, have deductions for federal income and/or state income taxes taken from their pay. If voluntary withholding is requested, be sure that all of these withholdings are reported as income tax withholdings and not as Social Security or Medicare tax withholdings. The Minister may use these withholdings to satisfy his/her SECA (Social Security and Medicare for the self-employed Minister of the Gospel) tax obligation. However, the congregation should never report them as social security withholdings.

Garnishment Garnishments are court ordered repayments of financial obligations by an individual. When so ordered, the employer must deduct the amount from the employees’ pay and remit it to the designated entity. If this arises the treasurer should consult with the court in order to compute the dollar amount, if not stated in the court order, which can be legally withheld from the pay of the garnished worker. The worker should be immediately notified of the garnishment and the date on which the deduction will begin.

Other Payroll Deductions Other payroll deductions are strictly voluntary and must be requested in writing by the employee. By providing these deductions, the congregation provides its workers with the opportunity to save dollars for their future and,

for some types of deductions, to experience current tax savings not permitted through non-payroll deducted savings plans.

Voluntary deductions may include: All-Cause Accident Insurance through Concordia Plan Services; Church Extension Fund Payroll Savings, Concordia Retirement Savings Plan (CRSP), other Tax Sheltered Annuities (TSA) and Flexible Spending Arrangements.

Voluntary deductions should be made for “all” employees requesting them. For instance, a congregation cannot make a TSA deduction for the minister and tell the janitor that it will not make a similar deduction.

Pay for Overtime Employers should insure that employees work only scheduled hours. Non-exempt employees who routinely work additional hours seemingly in a volunteer status may be legally eligible for overtime pay or other benefits.

The appropriate church body should review state law to determine if time off in lieu of overtime may be provided in the same work week.

Church Council should determine if compensation time (comp time) is legal in their state.

CHAPTER 6

PERSONNEL FILES/RECORD RETENTION

A. POSTING REQUIREMENTS

Many of the federal and state statutes regulating the employee/employer relationship require employers to post notices advising employees of various employment rights. The failure to comply with these requirements can have significant consequences including being foreclosed from asserting certain defenses to employment claims. Additionally, noncompliance may result in the assessment of monetary penalties.

For information regarding your congregation’s or district’s posting requirements reference www.dol.gov.

B. RECORD RETENTION

Even if a record retention requirement listed below is not applicable to your church (due to the number of the church’s employees), state law should be checked for a similar requirement that may be applicable. If there is a question regarding the length of time to maintain records, it is recommended to follow the longer retention period of the two different statutes.

Statutes Types of Records Retention Period Age Discrimination in Employment Payroll or other records containing name, address, birth Three years Act date, occupation, pay rate and weekly compensation (Applicable to employers of 20 or more employees.) Any personnel records regarding: One year from date of personnel action x Hiring, including job applications, resumes, job inquires, and records of refusal to hire

x Promotion, demotion, transfer, selection for training, layoff recall, or discharge

x Job orders provided to employment agencies for recruitment of employees

x Test papers and results from employment tests

x Job advertisements and notices to public regarding job openings, training programs, promotions and opportunities for overtime

x Employee benefit plans, seniority and merit Duration of plan plus one systems year

Until final disposition In action brought against employer, any personnel records concerning employee, or applicant

Statutes Types of Records Retention Period Family and Medical Leave Act Records pertaining to compliance Three years (Applicable to employers of 50 or more employees and separately incorporated elementary and secondary schools.)

Immigration Reform and Control INS Form I-9 Three years after date of hire Act or one year after termination, (Applicable to all employers) whichever is later

Title VII and ADA All personnel or employment records including One year from personnel (Applicable to employers of 15 or application forms; resumes other hiring records; records action, or until final more employees) regarding promotion, demotion, transfer, layoff, disposition if charge brought. discharge, pay rates or other compensation

Terms and requests for reasonable accommodations

Personnel records concerning any discrimination charge brought by any agency or individual (e.g. records about charging party and all other employees holding similar positions application forms, or test papers completed by all applicants for same position.)

Internal Revenue Code Records pertaining to income tax, Social Security, and Four years (Applicable to all employers that Medicare tax withheld withhold taxes)

Fair Labor Standards Act including Payroll records, individual contracts Three years the Equal Pay Act (Applicable to most employers) Basic employment and earning records including Two Years deductions from pay to include W-2 and deduction reports

In the same manner that certain records must be maintained, there is also the obligation to not knowingly destroy or alter documents with the intent to obstruct the investigation of any matter within the jurisdiction of the Department of Justice, the Department of Labor, the Equal Employment Opportunity Commission and any other governmental agency conducting an investigation.

C. PERSONNEL FILES

The employer should maintain accurate and complete employment records on all nonexempt, exempt, rostered, contracted, full-time and part-time employees. These records remain the property of the employer. These documents exist to allow accurate retention of information for all who serve the employer. The employer may (but need not, except as required by state law) permit the employee to review their personnel records upon request, but the employee need not be allowed to copy documents in the file unless state law requires. The contents of personnel records are considered confidential and access to them is limited to those directly involved in the supervision and/or retention of the employee. An individual should be named as the custodian of all personnel records and as such must insure they are kept confidential. It is recommended the custodian be the most senior staff person or his assigned designee to assume the role of custodian of personnel records.

Personnel records may contain the following: x Employment Application – A completed and signed employment application is required and becomes a permanent part of the employee's personnel file. For rostered and contracted workers the Synod Pastor's Information Form (PIF) or Lutheran Educators Biographical Record (LEBR) form is acceptable. A resume for a worker not on Synod's Roster should not be substituted for an employment application. x Documentation of Qualifications – This would include, but not limited to, educational background, volunteer and work experience, professional licenses, etc. Any information obtained from references with the promise of confidentiality will be filed separately and remain confidential. x Documentation of Administrative Actions – Should any employee be involved in any action contrary to the standards and policies of the congregation, the incident will be reviewed thoroughly. A report of the incident and any administrative action taken should be filed in the employee's personnel file when appropriate disciplinary action requires. However, documents pertaining to a harassment complaint should be maintained in a separate file. x Performance Evaluations – Any review of an employee's performance as well as efforts to remediate substandard performance or praise for projects of outstanding excellence should be filed. These documents should be signed by the supervisor and the employee and dated. x Form I-9 (Must be kept in separate file.) – This form documents that the employee may legally work in the United States. This form is required to fully comply with the regulations of the Immigration Reform and Control Act of 1986 enforced by the Immigration and Naturalization Service. For employees hired after May 31, 1987, this form must be completed within three business days of the date of hire. To be properly completed, the employer must establish both the identity and eligibility to work in the U.S. of the employee. This is done by checking at least two documents prescribed by the Act of 1986 as listed on the I-9 form (available on-line at www.immigration.gov). x Salary – Current wage/salary, benefits, attendance, and vacation records should also be maintained. These should begin at the time of hire and be kept continuous throughout the employment (See Congregational Treasurer’s Manual, Sections 7.115 and 17.215.) It is not ethical or legal to attempt to reconstruct these records at the time a need for them arises. This information normally is maintained within the payroll records of the organization. x For childcare workers, criminal background checks and screening for crimes that have involved children should be made. These checks should be very thorough, following applicable laws and rules of inquiry. x Unless payroll records are maintained separately, pay information including rates, deductions, W-4 forms, etc., should be maintained in the personnel folder. x Note: Medical records including disability information specifying diagnosis should not be included in an employee’s personnel file but rather in a separate confidential file that meets HIPPA requirements.

Employment Information/History Any change involving salary and/or benefits, work schedule, or responsibilities should be included in the personnel folder and a copy supplied to the employee.

CTX Human Resources File Retention Schedule updated: 5/26/2010 Type Of File Contents/Comments Lead Retention Initial Hire/Termination documents Documentation related to employment actions (promotion/demotion/pay change/job change) Documentation related to job performance 7 years from Miscellaneous; 403(b); Changes of Address/Phone termination of Personnel (copy of email or note, etc.) HR Specialist /Benefits employment as Acknowledgement of Receipt of Policies (not stated in HRIS orientation) Training Acknowledgements; Release and Consent Forms of Any Kind

Where a charge or lawsuit is filed, all records kept EXCEPTION: until final disposition. HR Director

Benefit Enrollment forms (medically-related; no 7 years from 403(b)) termination of Medical HR Specialist /Benefits CPS Worker Add/Term/Change reports employment as FMLA Leave documentation; STD claims; doctor's stated in HRIS notes Where a charge or lawsuit is filed, all records kept EXCEPTION: until final disposition. HR Director

Worker's Comp Claim Individual employee file for approved and denied HR Specialist /Benefits 10 years from the claims close of the claim Where a charge or lawsuit is filed, all records kept EXCEPTION: until final disposition. HR Director 3 years after date HR Employment Specialist keeps in separate file and HR Specialist I-9 Forms of hire or 1 year maintains shredding schedule /Employment after date of term, whichever is later

Applications (no hire); Refers to applications/resumes in response to HR Specialist 1 year after Resumes advertised position /Employment position filled

7 years via HR Specialist outsourced /Employment Background Checks *Archived electronically company

D. ATTENDANCE RECORDS

Attendance records should be maintained in the individual's personnel file. For hourly employees, absences and tardiness will also be reflected in their payroll records. A record of tardy and absences should be maintained for each employee and kept in their personnel file. A written record of these occurrences is necessary for either rewarding faithful attendance, keeping track of time used for reimbursement of unused sick days if this is the employer’s policy, in the case of a lengthy employee illness to justify and coordinate any disability payments, or in disciplining an employee because of non-compelling reasons for absences and/or tardiness.

Employees should be encouraged to utilize earned paid time off and not to report to work when their illness will interfere with their productivity or become a threat to coworkers or students.

All employees, congregational officers, and members should be aware that some jobs/positions require irregular hours. Employers should establish parameters in which their employees (including rostered and contracted workers) may operate in response to activities that require long, irregular hours.

Time Records Maintaining timesheets for your employees, especially if you have only one or two employees, may seem unnecessary. However, they are invaluable for settling disputes concerning pay, vacation, or sick day use. They also provide documentation that your employees are actually present during the hours for which they are paid.

Position descriptions of nonexempt employees should have a stated maximum number of hours that can be worked per week or pay period. This is especially important for part-time employees so that the employer does not become obligated to provide benefits not intended to be provided.

Where practical, nonexempt employees should be required to sign in and out each day according to the following guidelines:

+ SIGN IN when reporting to work at the beginning of the day; + SIGN OUT when leaving for a scheduled meal period; + SIGN IN when returning to work after a scheduled meal period; + SIGN OUT when leaving work at the end of the day.

An employee should not sign in until they are ready to begin work. Employees should not mark or sign the time record of another employee or knowingly allow someone else to mark or sign their time record.

CHAPTER 7

PERFORMANCE MANAGEMENT

A. PERFORMANCE REVIEWS

Every employee should undergo an annual performance evaluation. The complexity and formality of the evaluation may depend on the size and needs of the employer. The evaluation is a medium by which feedback is given on how an individual has carried out the responsibilities that they have been assigned and to set goals for the future. It is not something that should be done only when there are performance problems. It is a tool for communication and, in most cases, if communication occurs early most issues can be prevented.

The performance review is not a mechanism that must accompany a pay raise. A performance review needs to be conducted regularly regardless of whether an individual’s compensation is being reviewed. However, the performance review can and should be a tool for the employer to use in making fair decisions regarding salary increases.

A sample performance review is available in Chapter 10, Sample Forms. The form itself is simply a guide and needs to address the responsibilities of the position and the communicated expectations of the congregation. The utensil used for evaluation is only as good as the feedback it provides and the exchange of communication that occurs during the evaluation process.

When doing performance evaluations, you are encouraged to be objective and accurate in your evaluation. Giving comments that are more favorable than accurate may result in difficulty later should the employer decide to terminate the employee.

B. TRAINING

It is important that employees receive the training necessary to meet the responsibilities of their positions. Training is not only a benefit to the employee but is also a benefit to the congregation/district. A discussion regarding training needs should take place during the annual performance review process. If training is provided, it should be provided based upon business needs and should not reflect intentional or unintentional discrimination. Non-exempt employees must be compensated for training if it is required or benefits the employer.

C. DISCIPLINING EMPLOYEES

If after verbal counseling no improvement is made by the employee, a written warning may be issued and consideration may be given to placing the employee on probation. If there continues to be performance or behavior problems the ultimate resolution may be termination of employment. Supervisors should document all efforts of verbal discipline to support their effort in correcting the situation. A sample of a written warning is available in Chapter 10, Sample Forms. Methods of discipline such as suspension, probation, or termination should be considered only after suitable efforts have been made to provide the employee an opportunity to correct their performance or behavior, except with severe performance or behavior issues (in which case such methods can be used immediately).

When applying disciplinary action, the supervisor and/or person(s) responsible for personnel matters should always be consistent in handling such matters. The severity of the infraction normally determines the appropriate disciplinary action to take, but if one employee is verbally warned for repeated tardiness and another employee is terminated for the same offense, the employer could be challenged or accused of discrimination.

In dealing with performance concerns that relate to an ordained or commissioned minister, the district president should be contacted for his input and counsel. He will provide direction on how to best deal with any concerns and become involved as the situation warrants.

It is important to keep written documentation or records of performance related conversations with employees or other staff members. Situations where courts may restrict an employer’s right to terminate a worker can be categorized as:

x Public policy/Retaliatory Discharge, i.e. worker whistle blowing or for filing Worker Compensation Claims. x Implied contract involves written or oral statements by the employer which allegedly create an implied promise of discharge only for “cause”, i.e., oral statements promising continued employment, employee handbooks which contain obligations to which the employer is unwilling to commit. Also handbooks should avoid the use of mandatory language such as “will”, “shall” or “must” when describing its obligations to employees. x Good faith and fair dealing which may involve abusive or highly offensive discharges, i.e., retaliation for refusing to become emotionally involved with a supervisor. x Written contract – termination before the end of the contract term is restricted, unless or except as allowed by the contract. x Illegal reasons, such as illegal discrimination or for the exercise of a right or activity protected by law (e.g. military service).

D. DISCIPLINE AND TERMINATION PROCEDURES

There are laws that prohibit employers from practicing discrimination in the discipline and termination of employees. Employees of congregations/districts cannot be discriminated against with respect to employment because of their race, color, sex, pregnancy, age, disability, national origin, or other protected categories under state or local law. However, congregations have the right to discriminate with respect to employment based on religion and to only consider qualified males for positions required to be held by ordained ministers of The Lutheran Church—Missouri Synod. In addition, the employer has the right to discipline and terminate employees because of poor job performance and, in some cases, based on religion (not living a Christian life based on stated Lutheran principles). To lessen the chances of a charge of discrimination, employers need an effective system for corrective action. It is important that employers be knowledgeable on how to approach employee relation matters.

Corrective action can and should be used to promote positive changes in employee performance. Employees should receive constructive feedback about their jobs on a regular basis. The suspension, discipline or termination procedures are designed to assist in developing an employee and maintaining the staff in which the employer has a significant investment.

Employee turnover is extremely expensive, so good stewardship dictates that churches try to work with employees in an effort to help them do their jobs better. Employers should view disciplinary action as a way to redeem an employee's performance before job loss occurs.

Progressive Disciplinary Systems In fairness to the employee and the employer, issues of concern related to an employee’s performance or behavior should be dealt with in a swift and fair manner. While such issues are not easily dealt with, when done appropriately, the results can be very favorable if concerns are identified and guidance is provided in a caring christian manner with the intent to correct the situation.

Only in very rare cases should employees be fired without warning and without an opportunity to turn their performance problems around. A progressive disciplinary system enables employers and employees to protect themselves against charges of employment discrimination and wrongful discharge. These systems promote consistency, making it more likely that employees will he treated fairly. Although progressive disciplinary systems used by large corporations may be very formal and complicated, their principles can be implemented by churches in a relatively simple four step process.

Procedure:

1. Verbal Warning Employees who fail to follow the employer's policies are subject to disciplinary actions, including termination of employment. For other than major infractions, which can result in immediate termination, employees will first be verbally counseled about the problem with the intent of clearing up any misunderstanding and establishing behavior expected in the future. This verbal warning should be as informative as possible including soliciting of comments from the employee concerning the violation. The verbal warning must be documented by the supervisor noting that the discussion took place, the date, and the subject of the warning, noting any appropriate or significant comments.

Continued violation of policies will result in levels of written notifications to the employee of unacceptable action, and can lead to ineligibility for merit increases, probation, suspension, or termination. It is recommended to document verbal warnings.

2. Personnel Memo/Written Warning A second step in the counseling procedure can be a personnel memo/written warning. The personnel memo/written warning is a tool to help the church communicate more effectively with employees. It may be used to advise, warn, or otherwise notify an employee of performance or conduct that is not acceptable. The personnel memo/written warning should be clear and provide background and suggested alternates or means to clear up the unacceptable performance or conduct. The memo should be written in a supportive and encouraging manner in order to assist the employee in improving their performance. The memo must be signed by the employee and supervisor. The employee can note if there is a disagreement concerning the content of the memo.

3. Probation Continued violations can necessitate the next step, to be taken, which may be probation. A letter advising the employee, citing the reason and length of probation should be personally delivered to the employee by the supervisor. The memo will also indicate that unless performance improves or compliance with policies is met, the next step will be termination. The employee must acknowledge receipt of the memo. A copy should be provided to the employee and a copy for the employee’s personnel file.

4. Termination A final step can be termination. Without improvement, this step can be taken. It is hoped that the progressive counseling procedures as outlined above will assist you in developing a supportive system.

Exceptions It is important to note that the severity of the offense may warrant a diversion from the usual disciplining sequence, and that the disciplinary action taken may begin at any level. Probation, for example, could be given for a flagrant first offense, and immediate dismissal could result without prior warning or suspension in the case of major acts of misconduct or serious dereliction of duty. Written documentation of the offense and plan action should be recorded and maintained in the personnel file.

E. GRIEVANCE PROCEDURES

All employees should have a suitable grievance procedure available to them in addressing work related issues. Such grievance procedures should be published in the congregational/district Employee Handbook and employees must be advised of any additional avenues available in accordance with the Synod Dispute Resolution as outlined in the Synod by-laws.

CHAPTER 8

RESIGNATIONS/TERMINATIONS

Employment at Will – (check state laws for applicability)

Employment at Will is defined as an employment relationship for no specific duration that may be terminated at any time at the will of either the employer or the employee, for any reason or no reason at all, provided the reason is not an illegal reason. It should be noted that the state statutes and courts have limited an employer’s ability to discipline or discharge employees.

A. VOLUNTARY RESIGNATIONS

An employee who is resigning should be asked to provide a letter of resignation. The resignation should be placed in the employee’s personnel file and kept for the period required by law for personnel records. Although no notice can be required of an at-will employee when he or she resigns, in most cases, a two (2) week notice should be requested.

B. INVOLUNTARY TERMINATION

Normally, an involuntary termination results from an employee's lack of job performance or disregard of employer policies. This means that the situation has been discussed with the employee, the skills have been taught, and the supervision and training efforts have been documented in the personnel file.

It is important that the employee have a clear understanding of their non-eligibility for unemployment benefits based on their employment with the employer. In most states, non-profit employers (501c3) are not required to pay unemployment tax for their workers and therefore the worker is not eligible for benefits based on their service to the congregation/district. (The employee may be eligible for benefits based on their work history with other employers.)

Congregation/district officers should be familiar with the laws of their state and should know if their congregation/district pays unemployment tax or reimburses the state for benefits for their employees.

If a position needs to be eliminated due to restructuring or other reasons, efforts should be made to place an employee in good standing in another suitable position if one exists. If such a position is unavailable, the employee should be advised as soon as possible that their position is being eliminated Be sure to follow appropriate final pay requirements applicable to your state.

Entries in personnel records may include but are not limited to: x The reason for the separation x Performance history x Corrective efforts taken x Alternatives discussed and/or attempted x Any other mitigating circumstances

Most of this documentation is produced throughout the normal course of supervision.

Supervisors and the boards to which they report should have a process in place for documenting employment history and performance prior to the need for such documentation.

Proper Documentation Extreme care, including a legal opinion, should be sought/exercised prior to the employer informing the employee in writing of the reasons and circumstances for the termination or making public statements about the termination.

For instance, an employee could be terminated for breaching a clause in their job description stating that adherence to the teachings of the LCMS is expected of the employee. LCMS doctrine clearly expects that certain behaviors will be avoided because they are contrary to the teachings of the Scripture. If the stated cause for a termination is failure to follow the type of lifestyle expected by the teachings of the church, and the church is consistent in its application of the clause, a court could be expected to uphold the termination.

However, if only the specific behavior is given as the reason for the termination, with no reference to church doctrine, a court might not uphold the termination. Certain behaviors and/or lifestyles, which are contrary to LCMS doctrine, might be protected under federal or state laws. The point here is that when giving a reason for a termination, extreme care should be taken and legal counsel should be sought.

In the cases of involuntary termination or layoff, the supervisor and the Church/District governing body should review the circumstances of the termination prior to its implementation. In the case of a discharge, the employee may be suspended with or without pay and the case reviewed as soon as possible by the supervisor and/or the appropriate employers board or committee.

Upon their review and approval, the discharge becomes effective. If the discharge is not upheld, the circumstances will be reviewed to determine if any withheld back pay and benefits should be paid to the worker.

When, after following the appropriate disciplinary and counseling procedures and consultation with the individual responsible for personnel issues at the congregation/district, a decision has been made to terminate an employment relationship, the following measures should be followed:

x The employee shall be notified of termination by the appropriate person (normally their supervisor) in the presence of the individual responsible for the congregation’s/district’s personnel policies. Such notification shall be done in a caring and Christian manner. x The immediate supervisor may make co-workers aware that the employee is no longer with the organization; however, no discussion should relate to the reason or the cause. x The supervisor or other responsible person should cancel computer systems access. x All assets of the employer shall be gathered (keys, cellular phone, calling cards, security cards). x Building keys access should be cancelled. x The supervisor should arrange for the payroll processor to provide final pay; and, whenever possible this will be made available at the time of termination. (Reference state law.) x The immediate supervisor may make co-workers aware that a termination has taken place; however, no discussion should relate to the reasons/cause.

x Arrangements can be made for personal possessions to be gathered, with supervision, after normal office hours or to be mailed to the individual as soon as possible.

C. RETIREMENT

When an employee decides to retire, contact should be made with the Concordia Retirement Plan of the Concordia Plan Services to obtain an Application for Retirement. The form should be completed by the employee and authorized by the employer.

D. EXIT INTERVIEWS

Especially in the cases of resignations conducting an exit interview provides a good time to discuss the work environment, job description and responsibilities to determine how improvements can be made in the future. In other cases, the exit interview should be conducted with the idea of allowing the employee to vent his or her feelings as necessary.

For terminations other than resignations, an exit interview may be conducted if appropriate. There may be circumstances that it would not be prudent to conduct such an interview.

Unemployment Compensation – Federal and State The district, church and school are exempt from federal unemployment tax because they are Internal Revenue Code Section 501(c)(3) exempt organizations.

However, unemployment tax is primarily a state responsibility, and, in some states, the laws are different for churches and schools. In most cases, all church and school employees are not eligible for coverage under the state unemployment laws because the organization is exempt from the tax or has elected not to participate. If the organization does not participate in the tax, the organization's employee handbook should state that its employees may not be eligible for an unemployment claim should they decide to leave the employment of the employer. However, some states allow "self-insurance funds” for a claim by a former employee if the employer agrees to reimburse the state fund or requires the church to participate.

In those situations where employees are not eligible for unemployment, it is suggested that new hires be asked to sign a statement acknowledging they will not be entitled such benefits.

Pay Due to Employees Upon Termination Specific state laws may apply in your state in regards to termination checks. Some states require almost immediate termination pay with little or no employer stipulations. Employers should be aware of the laws in their specific state prior to being faced with a termination situation. State laws may also have requirements concerning pay for unused vacations and/or sick days. State employment laws should be consulted prior to establishing local policies and procedures.

Providing References for Terminated Employees To protect the former employee's privacy, response should only be made to written inquiries from prospective employers and will provide only the dates of employment and the last position held. All verbal or written inquiries about a former employee should be referred to the appropriate person for response.

To protect the employer and the Synod as a whole, it is suggested that a complete explanation be given to an inquiry from another congregation or Synod entity when the worker was reprimanded, discharged, or resigned as a result of sexual, unethical, or illegal conduct. This must be done in a manner that is in compliance with state and federal laws. It is recommended to document the explanation provided to another Synod entity.

CHAPTER 9

HEALTH, SAFETY, AND SECURITY

As employers congregations/districts have a general responsibility to attempt to assure a reasonably safe and secure work environment for employees. The congregation/district may want to establish a set of established safety guidelines and post them for employees.

A. SAFE WORKING ENVIRONMENTS

Standard precautions should be taken to provide uncluttered workspaces. Periodic reviews should be done to reduce or minimize any physical barriers to a safe environment such as poor lighting, piled boxes in pathways, unsecured electrical cords across walkways, or other clutter.

B. SECURITY

Reasonable efforts should be made to limit access to the work area to those with a legitimate business interest to provide a secure environment. Precautions should also be made to provide a secure well-lighted area for employees to park.

C. PROHIBITION OF VIOLENCE

It is the policy of the districts, congregations and schools that there will be zero tolerance for violence. This includes joking and talking of violence. If violence in the workplace is displayed or threatened, the person responsible for such conduct will be subject to immediate disciplinary action. In addition to the appropriate disciplinary action, the employee and/or other parties involved will be subject to criminal proceedings as appropriate.

For the purpose of this policy, violence includes physically harming another, shoving, pushing, intimidation or coercion; however, your employer reserves the right to review incidents and expand on what may be considered violence. No weapons are allowed on the premises (including our parking lots) and no threats or talk of violence will be tolerated.

All employees are to assist in preventing violence in the workplace. You can help by reporting incidents that could indicate a coworker is in trouble or that violation of this policy has or is taking place. All reports will be investigated.

D. EMERGENCY CONTACTS

Employees should provide one or two emergency contacts to be used in the case of a medical emergency when contacting family or friends is required.

E. WORKPLACE INJURIES/SERIOUS ILLNESSES

In the event a work place injury or sudden serious illness occurs, care for the employee must be a priority. Coworkers should be cautioned to only provide reasonable first aid. For the injury or illness a first aid kit should be kept on site in a convenient area. For illnesses/injuries that appear serious, coworkers should attempt to make the employee comfortable and assist the employee in determining the appropriate medical care needed. 911 should be called for emergency care and to transport the employee for further emergency medical treatment.

All churches, schools and district offices should consider how they can provide basic first aid in emergency situations.

F. WORKERS COMPENSATION

Workers Compensation seems to be a highly misunderstood issue within the church today. Churches have confused their statutory obligation to carry Workers Compensation with the need to provide protection for the church against the liability they may have for their employees. State statutes simply provide the requirements that mandate whether or not an organization must carry Workers Compensation. In some states, all organizations have to carry Workers Compensation coverage. In other states, you may be required to have 1, 2, 3, 4, 5 or more employees before it is mandated. However, in all states, the intent of the Workers Compensation system is to obligate the employer to provide compensation and medical expenses for injured employees, regardless of fault, when they become disabled because of work-related injuries or illness. In exchange, the employer is given immunity from common-law suits brought by employees for work related injuries, and also so called negligent tort claims.

This particular coverage has many facets that need to be addressed. The most misunderstood is the definition of who an employee is. By state statutes, an employee is anyone that provides services for you under contract or is employed by you. For example, most churches have a pastor and secretary. In addition, they often pay someone to cut the grass and an organist to play music. For Workers Compensation Insurance purposes, all four of these are employees. If you hire an independent contractor to paint your building, you should obtain an agreement stating that the congregation will be held harmless from any liability resulting from acts or omissions and those of his subcontractors or employees and stating that he will indemnify the congregation for any liability or loss caused by him or his subcontractors or employees and will release the congregation from liability for injuries to him, his employees, or his subcontractors occurring on the premises.

The Employer's Liability form provides coverage for most claims from employees and/or their families or other parties that are not otherwise covered by the Workers Compensation policy. Claims of this nature are excluded from your general liability form.

Please do not confuse Concordia Plan Services or any other group insurance program you might have with Workers Compensation and Employers Liability coverage. They are two distinctly different types of employee benefit plan. The one group insurance, Concordia Plan Services, is a complimentary coverage provided by you for the benefit of your employees. Workers Compensation and Employers Liability pay benefits to injured employees and/or their families. However, it is written to protect you from liability that you may incur as an employer. Every church should have Workers Compensation and Employers Liability coverage or its equivalent.

CHAPTER 10

SAMPLE FORMS/GENERAL INFORMATION

Position Description ...... 38 Lutheran School Employee Policy ...... 39 Electronic Communications Systems Policy ...... 40 Selection Interview Guidelines ...... 43 Application Evaluation Form ...... 50 Things Not To Do ...... 51 Illegal Questions ...... 52

Guidelines for Conducting the Performance Interview ...... 53 Steps in Conducting Performance Review Interview ...... 55 Guide for Rating Performance ...... 56 Exempt Performance Review ...... 57 Non-Exempt Performance Review ...... 66

Direct Deposit Authorization Form ...... 70 New Employee Data Summary ...... 71 Exit Interview ...... 72 Employee Timesheet ...... 75 Record of Ineligible Worker ...... 76 Employment Application ...... 77

______LUTHERAN CHURCH SAMPLE POSITION DESCRIPTION

POSITION TITLE: Title

DEPARTMENT: i.e., Church Administration

1. DEPARTMENT PROFILE Explain how the department supports the mission of the church/school.

2. PRINCIPAL FUNCTION Give a broad summary of the job.

3. POSITION RELATIONSHIP

A. Reports to (i.e., pastor) B. Supervises (Complete if individual has supervisory responsibility.)

4. PRINCIPAL RESPONSIBILITIES

Primary (List here the essential functions of the job. Below are some examples.) 1. Types, proofs, and copies church bulletins. 2. Is responsible for scheduling routine and non-routine maintenance of copy machine and orders copier supplies as needed.

5. POSITION QUALIFICATIONS A. Essential (See examples below.) 1. Minimum of a high school education, or its equivalent. 2. Minimum of two years experience in secretarial positions. 3. Typing of 60 wpm.

B. Desirable Can be added as appropriate and meaningful.

C. Work Environment, Physical Demands, and Other Information List any of the following physical/mental/work environment requirements necessary for performing the essential functions of the position.

LUTHERAN SCHOOL EMPLOYEE POLICY

______Lutheran School (LS) is operated by Lutheran Church (Church). The Church is a religious non-profit corporation holding membership in The Lutheran Church—Missouri Synod (LC-MS).

______LS is a school with a mission, but it is more than that. The Church considers ______LS to be a mission, one form of Christian mission to its members and to the community. LC-MS Christians believe that the purpose of education is not only to prepare people for life in this world, but to "make people wise unto salvation through faith in Jesus Christ." (1 Tim.3:15).

Christian beliefs, as understood and taught in the LC-MS, pervade everything that is done at ______LS. Christian instruction is integrated into the study of every subject. Students are immersed in a Christian atmosphere, surrounded by teachers, administrators, and school employees whose very presence is a testimonial to the Christian faith and way of life.

______LS expects that its employees who are LC-MS members will adhere firmly to the teachings of the Church in matters of religious faith and personal conduct. Employees who are not LC-MS members are not required to believe or confess the teachings or beliefs of the LC-MS. However, no ______LS employee may, in a way that may affect the school, promote beliefs that are contrary to those of the LC-MS or otherwise weaken the LC-MS Christian atmosphere at the school.

The Church, as a member of the LC-MS, takes firm stands on matters of moral conduct. For instance, the LC-MS affirms the sanctity of human life, including the life of an unborn child; the importance of a stable family life and of fidelity in marriage; and abstention from illegal drugs. The LC-MS opposes a homosexual lifestyle and cohabitation or sexual relations outside the marital relationship. These are only examples of the Church's positions on a number of contemporary questions of conduct and morals.

All employees are expected to lead personal lives that do not violate the teachings and beliefs of the LC-MS on matters of personal conduct, so that all employees may in their daily lives give witness to a lifestyle that supports ______LS's mission as an LC-MS Christian institution. While all employees not having a call or written contract for a term are employees at will (meaning their employment may be terminated with or without cause at any time), any employee who fails to comply with LC-MS teachings in connection with his or her employment at ______Lutheran School or conducts his or her life in a way that is inimical to those teachings may be terminated from employment for cause.

LC-MS doctrine and practice are derived from the Christian Scriptures, the Lutheran confessions, and the applicable resolutions of the LC-MS in convention. For all purposes of this policy and decision of the Principal of what constitutes the beliefs and teachings of the LC-MS shall be final and binding. Employees who are unfamiliar with LC-MS beliefs and teachings on any subject should inquire about them from the Principal. He/she can refer questioners to appropriate publications or, if necessary, can arrange for the employee to be counseled by the Pastor.

ELECTRONIC COMMUNICATIONS SYSTEMS POLICY

This document sets forth the policies of The Lutheran Church—Missouri Synod, The Lutheran Church—Missouri Synod Foundation, Concordia Plan Services, Lutheran Church Extension Fund, KFUO and other employers operating under common policies regarding the use of its electronic communications systems.

1. Ownership of Messages

The electronic communications systems, which include, but are not limited to, the telephone, electronic mail, voice mail, facsimiles, computers, the Internet and the World Wide Web, and all information stored on them are the property of your employer and are provided at your employer’s expense. All information and messages that are created, sent, received, accessed, or stored on these systems constitute company records.

2. Business Use

The electronic communications systems are to be used primarily to conduct company business. Reasonable personal use of such systems is permitted, but must not interfere with an employee’s productivity. Personal use should be limited to breaks, lunch and other non-working hours. Employees may not use the electronic communications systems for political causes; football pools or other sorts of gambling; illegal activities; seeking/inquiring about job opportunities outside of the organizations; list serves for non-work purposes; solicitations or advertisements for unrelated work purposes; or creating, possessing, uploading, downloading, accessing, transmitting, or distributing materials of a sexual nature. Employees may not use the employer’s electronic communications systems to post non-work related information, opinions, or comments to Internet discussion groups and other such forums. Employees are prohibited from passing off their views as representing those of his/her employer.

3. No Presumption of Privacy

Although employees are expected to use passwords to access some of the electronic communications systems, such communications are not private and security cannot be guaranteed. In surfing the Internet and World Wide Web, employees should remember that all connections and sites visited may be monitored and recorded. Employees should assume that any communications – whether business-related or personal – that they create, send, receive, or store on their company’s electronic communications systems may be read or heard by someone other than the intended recipient. In particular, highly confidential or sensitive information should not be sent through e-mail, the Internet, or the World Wide Web. Your employer reserves the right to keep an employee’s e- mail address active for a reasonable period of time following an employee’s departure to ensure that important business communications reach them; your employer will review such communications.

4. Employer’s Right to Monitor Messages

Your employer reserves the right to monitor, access, retrieve, read, and disclose to law enforcement officials or other third parties all messages created, sent, received, or stored on the electronic communications systems without prior notice to the originators and recipients of such messages. Authorized personnel may monitor the electronic communications of employees to determine whether there have been any violations of law, breaches of

confidentiality or security, communications harmful to the business interests of your employer, or any violations of this policy and any other company policy.

5. Message Restrictions

Electronic communications may not contain content that a reasonable person would consider to be defamatory, offensive, harassing, disruptive, or derogatory, including but not limited to sexual comments or images, racial or ethnic slurs, or other comments or images that would offend someone on the basis of race, gender, national origin, sexual orientation, religion, political beliefs, or disability.

6. Prohibited Activities

Employees may not upload, download, or otherwise transmit copyrighted, trademarked, or patented material, trade secrets; or other confidential, private, or proprietary information or materials in violation of any legal constraints. Employees may not upload, download or otherwise transmit any illegal information or materials. Employees may not use their employer’s electronic communications systems to gain unauthorized access to remote computers or other systems or to damage, alter, or disrupt such computers or systems in any way, nor may employees – without authorization – use someone else’s code or password or disclose someone else’s code or password, including their own. Employees may not enable unauthorized third parties to have access to or use the electronic communications systems, nor may employees otherwise jeopardize the security of their employer’s electronic communications systems.

7. Message Creation

Employees must use the utmost care in creating electronic communications. Even when a message has been deleted, it may still exist on a back-up system, be recreated, be printed out, or may have been forwarded to someone else without it creator’s knowledge. As with paper records proper care should be taken in creating electronic records, which may someday have to be produced in connection with legal and/or business needs.

8. Record Retention

As with paper documents created and received by an employee, it is each employee’s responsibility to ensure that those electronic messages that should be retained are in fact saved. Those messages that need not be retained should be deleted.

9. Viruses and Tampering

Any files downloaded from the Internet and any computer disks received from non-employer sources must be scanned with virus detection software before installation and execution. The intentional introduction of viruses, attempts to breach system security, or other malicious tampering with any of your employer’s electronic systems are expressly prohibited. Employees must immediately report any tampering, or other system breaches to the Executive Director of Human Resources and/or the Executive Director of the Office of Information Systems.

10. Selling and Purchasing

The standard purchase and sales policies apply to all purchase and sales related activities conducted via the electronic communications systems.

11. Violations

Violations of this policy, including breaches of confidentiality or security, may result in suspension of some or all electronic communication privileges, disciplinary action, and even termination. Your employer reserves the right to hold the employee personally liable for any violations of this policy.

I certify that I have read, understand and agree to the terms set forth in this policy. I further certify that I have received a copy of this policy for future reference.

Employee’s Signature

Employee’s Name (please print)

Date

SELECTION INTERVIEW GUIDELINES

I. GOALS OF THE INTERVIEW

A. Hire a person who “can” and “will” do the job. B. Improve the effectiveness of the congregation/district.

II. EEOC LEGISLATION

A. Intentional/unintentional discrimination B. Protected groups

III. PREPARING FOR THE INTERVIEW

A. Know the job B. Plan ahead C. Develop a plan D. Communication skills

IV. THE INTERVIEW

A. Establish rapport B. Set the agenda C. Ask questions D. Provide information & answer questions E. Closing F. Document the interview

V. THINGS NOT TO DO

A. Don’t let biases/first impressions get in the way B. Don’t oversell the position

VI. THE GOALS OF THE INTERVIEW

A. TO HIRE A PERSON WHO “CAN” AND “WILL” DO THE JOB.

CAN the applicant DO the job? This involves examining the applicant’s experience, training, and education, to assess the potential to perform specific job responsibilities.

B. TO IMPROVE THE EFFECTIVENESS OF THE DISTRICT/CONGREGATION

The decision to hire an individual represents a major investment by the employer. Each position filled should be done with a belief that the organization will benefit by the decision. Each individual influences the success of the organization.

VII. EEOC LEGISLATION

Since 1866 laws have existed to protect certain rights of minorities. Some of the employment related laws are the Civil Rights Act of 1964, the Equal Pay Act of 1968, Immigration Reform and Control Act of 1986, Age Discrimination in Employment Act, the Americans with Disabilities Act and the Civil Rights Act of 1991.

As a hiring agent for the congregation or district, you must be able to accomplish the objectives within the framework of these laws, rules and regulations unless the ministerial exception applies.

State and local laws should be reviewed and complied with in the hiring and employment process.

A. DISCRIMINATION CAN BE INTENTIONAL OR UNINTENTIONAL – BOTH ARE ILLEGAL

1. Unintentional – Selection that seems neutral at face value but inadvertently discriminates against a protected group. This is known as disparate impact.

2. Intentional – Discrimination with intent. Treating protected individuals differently than non- protected individuals is known as disparate treatment.

3. Fulfilling the objectives of the regulations, laws, and executive orders is the immediate responsibility of the person, board or committee that is involved in the interviewing process. However, it is important to realize nothing in the law interferes with sensible effective management policies.

B. PROTECTED GROUPS

1. RACE/COLOR

Applies to all races not any one specific race. The intent of the law is to afford racial equality and therefore, is applicable to all races and color.

2. RELIGION

By legal definition, religion is defined as sincerely held moral or ethical beliefs as to what is right and wrong which are held with the strength of traditional religious views.

Amos Decision

The Supreme Court ruled in this case that a religious corporation has the legal right to hire individuals of a particular religion to perform work connected with the carrying on by such corporation.

3. SEX

Sex refers to the gender at birth (not sexual preferences). Discrimination in employment against any individual, male or female, on the basis of sex is a violation of the Civil Rights Act of 1964. (The LCMS is granted exception when filling positions that require an ordained clergyman to carry out the functions of a position).

4. NATIONAL ORIGIN

The EEOC defines national origin very broadly. It covers discrimination based upon an individual’s ancestors, place of origin or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.

5. MENTAL/PHYSICAL DISABILITY

A disability is a physical or mental impairment that substantially limits one or more major life activities. The Americans with Disabilities Act prohibits discrimination against a qualified employee or applicant who has such an impairment, has record of such an impairment, or who is regarded as having such an impairment.

6. PREGNANCY

The Pregnancy Discrimination Act of 1978 prohibits disparate treatment of pregnant individuals in all areas of employment. A female applicant may not be treated differently because of the female’s pregnancy or capacity to become pregnant.

7. AGE (ADEA)

The ADEA protects anyone over the age of 40. Don’t fall into the “Over qualified” state of mind. A court interpretation states “that characterizing an applicant in an age discrimination case as over qualified has a connotation that defies common sense and could instead be a buzz word for discrimination.”

VIII. PREPARING FOR THE INTERVIEW

A. KNOW THE JOB

Knowledge of the job is crucial. If you do not know the job, you are less qualified to choose the person most qualified to do the job.

Review the position description and up-date, if necessary, to reflect the responsibilities of the position as well as the qualifications necessary to do the job.

B. PLAN AHEAD

1. Commit to the Process

An interviewer should be well informed and well prepared. You should have reviewed the job application and resume of the applicant prior to the interview and be prepared to obtain additional meaningful information.

2. Schedule

Adequate time should be allowed for each interview, approximately one hour for each applicant. Make sure the amount of time is sufficient to review the application and/or resume one more time before the interview. Time will also be needed after the interview to document the results.

The interview is an important business meeting, so don’t allow any interruptions during the process. Make sure your schedule is clear.

3. Arrangements

Double check arrangements have been made for an appropriate interview room. It should be comfortable for both you and the interviewee and free from any distractions such as noise or visual activity.

4. Come prepared. You will want to make sure you have the following:

Pen and paper Applicant’s application and resume List of interview questions Applicant Evaluation Form Job description

C. DEVELOP A PLAN

Interviewers must cover the appropriate topics and ask the right questions to be successful.

1. Know the objectives to be achieved.

a. Collect Information

i) Can the applicant do the job?

Examine the applicant’s experience, training, and education to determine if he/she is able to perform the specific job responsibilities

ii) Will the applicant do the job?

Examine the applicant’s preferences for an interest in the job to determine his/her motivation and sense of commitment.

b. Provide Information

Let the applicant know about the job, the organization and the department. You should try to attract them to accept employment if they are chosen as the best candidate.

c. Check personal chemistry

Does the applicant’s personal style and approach fit the culture of the organization, the department and yours?

2. Know the style of interview that is best for the position you are filling.

Structured Interview – formal style, it consists of a list of planned questions designed to get the information necessary to make a sound hiring decision.

Semi-structured – informal style, topics have been identified but there is flexibility to adjust to the individual in covering the topics identified.

Free-flowing – no structure, investigating any topic that seems relevant.

3. Establish a format.

The format established should promote the achievement of your objectives and increases the efficiency of the interview.

4. Define the questions or topics to be covered during the interview.

Focus questions/topics on what is job related.

a. Previous experience both work and non-work related.

Activities the applicant has performed that relate to the job responsibilities of the job to be filled.

a. Training and education

Job related skills that the applicant has that relate to the job being filled.

c. Demonstrated behaviors, stated preferences and intentions.

Reaction to stress, oral communication skills, personal likes and dislikes, motivation.

i) Avoid psychological questioning

ii) Do not try to be an amateur psychologist. You are not able to objectively judge a person’s character or psyche.

iii) Do not follow the resume or application as a guide.

Questions should be asked as to any confusing aspects of the applicant’s responses on the application or resume. Questions can be asked as to reasons for leaving prior employment and any unaccounted for gaps in employment.

D. COMMUNICATION SKILLS

1. Ask open-ended questions.

You cannot evaluate an applicant’s ability to do the job with “yes” and “no” answers. You need specific details of experience or training to verify if he/she is capable of performing the job responsibilities. Probe for additional information as needed.

2. Listen

It is difficult to learn when you are talking. During the interview process, listening is your most important role. It is critical to the process.

3. Keep on track

Focus the interviewee on the topics you have identified as job related. Do not let him/her or you get off track from the topic.

4. Probe

Probe the applicant to obtain the information you need to learn in the interview. Do not accept the first response if you did not learn enough about the topic being covered.

IX. CONDUCTING THE INTERVIEW

A. ESTABLISH RAPPORT

Introduce yourself – State who you are, the position you hold and the department you represent. Welcome the applicant. Make small talk to put the applicant at ease (the resume or application may provide a common interest to break the ice.)

B. SET THE AGENDA

Outline the interview plan upfront. This relaxes the applicant by letting them know what to expect. It also allows you to stay focused.

C. ASK QUESTIONS

Conduct the interview in the style you have determined appropriate and don’t forget the goal to get the information you need to make the right decision.

D. ALLOW THE APPLICANT TO ASK QUESTIONS

Allow the applicant an opportunity to ask questions he/she may have about the position, the employer, benefits, etc. Are the questions relevant to the job and demonstrate knowledge of the position? They need to make an informed decision if they are offered the position.

E. CLOSING

Thank the applicant for his/her time. Let them know how the decision process is expected to move forward and that you will get back to them.

F. DOCUMENT THE INTERVIEW

Title VII of the Civil Rights Act requires employers to keep records pertinent to the hiring decision for a period of six months. The Applicant Evaluation Form can provide this needed documentation, while it also assists in the decision-making process.

Comments and/or notes should not be made on the application, resume, or cover letter of the applicant. Rather notes should be on a separate sheet of paper or the Applicant Evaluation Form. At no time should physical characteristics be noted.

APPLICATION EVALUATION FORM

______Applicant’s Name Interviewer

A. Required Qualifications Test Results or Knowledge of Subject Matter ______

B. Desired ______

C. Evaluation of Applicant’s Potential to Perform Circle Your Evaluation High Low Major Responsibilities/Accomplishments

1. ______5 4 3 2 1 2. ______5 4 3 2 1 3. ______5 4 3 2 1 4. ______5 4 3 2 1 5. ______5 4 3 2 1 6. ______5 4 3 2 1 7. ______5 4 3 2 1 8. ______5 4 3 2 1 9. ______5 4 3 2 1

D. Applicant’s Work Interest and Career Direction

1 Interest in Organization 5 4 3 2 1 2. Interest in Position 5 4 3 2 1 3. Motivation 5 4 3 2 1 4. Clarity of Career Goals 5 4 3 2 1

Additional Comments: ______

INTERVIEW RESULTS Recommendation for Hire Yes No

Supporting Comments ______

X. THINGS NOT TO DO

A. DO NOT LET BIASES/FIRST IMPRESSIONS GET IN THE WAY

It is important to recognize that people judge character in different ways. We as humans are susceptible to a number of influences that can bias our judgment about an applicant and these biases can get in the way of the ability to select the most qualified person for a position.

Interviewers have a tendency to place more emphasis on the negative rather than the positive. Negative first impressions tend to carry through to the final decision. Since first impressions as based on such things as appearance, dress, firmness of the handshake, hairstyle, sex, age, race (all of which are not job related) a decision can be made prematurely and unfairly.

Most of us need to be conscious of our biases and reliance on first impressions when interviewing. We need to learn to overcome them. The best way to protect yourself from biases and first impressions is to plan properly for the interview.

REMEMBER

When it comes to selecting a person for a job, if its not job related, it should not be a factor in the decision process.

B. DO NOT OVERSELL THE POSITION

While “selling” the job and organization to a desirable applicant is important, the interviewer must be certain not to make specific promises or conditions and terms of employment greater or different that the written policies established as the standard. Such promises or guarantees may lend support to the applicant in a wrongful termination case if he/she is ultimately hired and then terminated.

Illegal Questions During an Interview Discrimination on the basis of race, age, color, sex, religion, national origin, disability, or other protected classes under federal, state, or local law is illegal.

Many times, questions which are illegal are often only misstated. By rephrasing the question, you can often gain needed information while clearly avoiding violations of the law.

As these are often tricky areas, it is best to avoid them completely unless you have a valid, job-related reason for asking about them. Governmental agencies, courts and juries often assume that if you asked the questions, you used the information to make your decision.

Subject Illegal Question Turn the Question Around Citizenship/ Birthplace/ Where were you born? What is Are you able to provide legal Nationality your citizenship? documentation of your ability to work in the U.S.? Arrest Record Have you ever been arrested? Have you ever been convicted of a crime? Note – Some states specifically limit the scope of what can be asked and considered regarding convictions. Marital Status/ Dependents What is the number/age of your Are you able to work over-time? dependents? Are you able to travel (if required)? Note: This question should be asked of all candidates. Pregnancy-related Issues Questions about Are you able to work overtime? childbearing/pregnancy. Are you able to travel if necessary? Medical Condition What is your general state of Are there any functions of this health? job you could not complete? Maiden Name What is your maiden name? Have you ever used a different name? Age How old are you? How many years of experience do When did you graduate from high you have in accounting? school? Can your degree be verified? Residence With whom do you live? Do you How long will your commute be? rent/own? How long do you intend to stay in the area? Disabilities Are you deaf? Are you blind? Are you able to perform the essential functions of this job with or without reasonable accommodations? Note: This question should be asked of all candidates.

Guidelines for Conducting the Performance Interview

1. Listen!

The effectiveness of your interview increases with your understanding of the employee. If you talk when he/she wants to talk, you may miss some of your best opportunities to learn what you need to know. But just letting him/her talk is not enough. How you hear his/her words and how you respond to them will determine, in part at least, what he/she will say in the course of the interview – and how he/she regards the experience. There are at least two basic approaches:

a. Passive Listening: Encouraging the employee to speak freely can produce good results. However, this kind of listening requires considerable self-discipline and risks the loss of opportunity to capitalize on problems brought up and feelings expressed. Ordinarily, it is useful only to a point.

b. Active Listening: Using skillful and tactful questions or comments; the active listener can focus attention on key matters. Do not rebut the arguments and contentions of the employee even though his/her position might easily be crushed. Instead, seek to develop better insight and understanding on the part of the employee.

2. If the employee has appraised himself/herself more favorably than you appraise him/her, invite him/her to tell you his/her reasons.

Then, if you still disagree, restate his/her self-appraisal. Be sure you understand it. Let him/her know that you want to consider his/her judgment and that you think his/her feelings are important even if you must disagree. Review and state the points on which you do agree. Then discuss your differences.

3. Try not to be unduly influenced by things that may affect your feelings but do not otherwise affect the employee’s value to the Synod.

Remember that you are trying to help each employee to develop himself/herself, so that he/she can give the Synod the best he/she has to offer. This will require setting aside your purely personal preference and confining attention to matters of importance.

4. In evaluating an employee’s successes (or failures), maintain an appropriate perspective.

Keep in mind the relationship between what is achieved and what is undertaken. Consider mitigating circumstances.

5. Never discuss another employee’s performance.

Unfavorable comparisons cannot be kept confidential. They always leak.

6. Do not discuss salary or promotion during the performance review.

Such discussion is apt to be interpreted by the employee as a commitment. Focus on helping the employee improve his/her competence in the present job. Emphasize this aspect of growth and with it the satisfaction to be derived from achievement in current assignments.

7. Do not try to do too much.

Unless you are unusually skillful, some achievements in performance reviews are apt to be beyond you. a. You cannot make an unfavorable review a happy experience. b. You cannot make a suspicious employee trustful. c. You cannot make a belligerent employee cooperative. d. You cannot make a defensive employee self-critical.

8. Remember that it’s more important to develop strength than to correct weakness.

Steps in Conducting the Performance Review Interview

1. Briefly cover the purposes of the performance review: a. To explain how the employee is doing on the job assignment. b. To evaluate what has been accomplished. c. To prepare objectives for next year.

2. Before you discuss performance, discuss the job. Reference Question 2 of the Personal Review. If necessary: a. Examine the Position Description together. b. Determine agreement or disagreement about the exact nature of the employee’s responsibilities. c. Identify any needed revision in the position description.

3. Ask about the employee’s performance before you tell – and listen carefully. Reference Questions 1, 3 and 4 of Personal Review. a. Increasing effectiveness in position responsibilities. b. Accomplishment of objectives, as well as failures. c. Personal strengths in relation to the assignments and its challenges.

4. Present your evaluation of the employee’s performance. Reference the Performance Review. Explain your assessment in detail. a. Fulfillment of position description responsibilities. b. Setting and attaining goals. c. Evaluation of job comportment.

Note: Invite response. Make certain you understand each other and that differences are discussed, if not resolved.

5. Develop and agree on objectives for the coming year. Discuss functional objectives and resources. a. Related to position responsibilities. b. Related to unit projects. c. Problems anticipated.

6. Discuss professional/personal growth objectives and sources. a. Related to the individual’s professional goals within the church. b. Related to needs for personal self-development. c. Problems anticipated.

7. Close the interview, hopefully leaving the employee with: a. A specific or general awareness of overall effectiveness. b. A clear understanding as to objectives agreed upon for the coming year. c. A heightened sense of your concern and willingness to help.

Guide for Rating Performance

1. Definition of Ratings

Inadequate Rating: 4 An employee at this level consistently performs below an acceptable level and should be placed on probation and is not eligible for an increase in wage. A specific probationary period should be established for the employee to improve his/her performance to job standard. In the case where improvement is not made, termination of the employee should result.

Limited Rating: 3 This is a provisional level for inexperienced newcomers (generally those in a position for one year or less) or others whose performance is below the acceptable level. Some elements of the position may still require considerable supervision and instruction before performance satisfactorily meets position requirements.

A seasoned employee at this level of performance should be advised that they need to improve their work performance to a minimum of the standard rating or face probation and possible termination.

Effective Rating: 2 At this level, an employee is consistently performing at a standard and acceptable level of performance. The majority of seasoned employees as well as a more experienced new employee developing in a satisfactory manner will fall in this category.

Impressive Rating: 1 An employee who receives this rating is fulfilling the position requirements over a sustained period of time in the best way an employer can possibly expect in a given position. The employee at this level should have mastered every essential element of the assigned position and should be performing at a level well beyond what would normally be expected of the great majority of employees with similar duties. Normally less than 10 to 15 percent of employees fall under this rating.

2. Performance Review

Listed on the review are a number of factors that are important for success in performing a job. First, read the statement and then indicate the appropriate rating for the individual. Remember to take into considerations the entire time period when evaluating the employee. When evaluating a new employee, rate them based upon their performance to date. It may also be helpful to compare the employee to others in the unit remembering that not everyone is “impressive” in their performance.

Carefully review the factors and rate the employee objectively in each area. In rating and totaling of ratings, it is acceptable to use fractional values if you think the employee is between two descriptions. Each characteristic rated as a comment section directly below it. Use this space to point out specific incidents or items that substantiate your rating.

PERFORMANCE REVIEW EXEMPT STAFF

NAME:

POSITION:

DATE ASSIGNED TO CURRENT POSITION:

RATED BY: DATE:

APPROVED BY: DATE:

DISCUSSED WITH EMPLOYEE BY: DATE:

COMPLETE THIS SECTION LAST Overall Performance Rating (please highlight below)

1. IMPRESSIVE Performance consistently exceeds expectations for the position.

2. EFFECTIVE Performance meets expectations for the position.

3. LIMITED Performance does not meet expected levels. Improvement is needed to meet position standards.

4. INADEQUATE Performance consistently does not meet expected levels. Overall performance must improve immediately.

RECOMMENDATIONS

Summary of Strengths:

Needs Improvement In:

Growth Potential: Does the employee exhibit potential for advancement to positions of increased responsibility in this department? ______

In any other department? ______

In what particular areas or types of positions would this employee be especially well- suited?

Significant Comments:

JOB PERFORMANCE RATINGS

IMPRESSIVE EXCEEDS POSITION DESCRIPTION RESPONSIBILITIES RATING 1

EFFECTIVE MEETS POSITION DESCRIPTION RESPONSIBILITIES RATING 2

LIMITED PERFORMANCE DOES NOT MEET EXPECTED LEVELS. IMPROVEMENT IS NEEDED. RATING 3

INADEQUATE PERFORMANCE CONSISTENTLY DOES NOT MEET EXPECTED LEVELS. OVERALL RATING 4 PERFORMANCE MUST IMPROVE IMMEDIATELY.

A. JOB RESPONSIBILITIES

1. How effective is employee in carrying out the major responsibilities of their job? Rating:

B. GOALS & OBJECTIVES

1. To what degree has the employee met, exceeded or failed to meet the agreed upon goals for the past year? Rating:

2. How well does employee establish both challenging and measurable goals? (Attach next year's goals) Rating:

Calculate Average Rating of Section B (add together, then divide ÷ by 2):

C. JOB COMPORTMENT A=Applied; C=Critical; D=Does Not Apply

1. How well does this employee demonstrate an understanding of and support for the organization's mission and maintain a constructive Applic- attitude? ability: Rating:

2. How productive is this employee? (Quantity of work? Get things done? Applic- Job knowledge?) ability: Rating:

3. How does this employee initiate work? (Starts assignments without prompting? Independently contributes ideas and projects?) Applic- ability: Rating:

4. How does this employee adapt to changes in work situations? (Easily adjusts to new people, ideas and pressure situations?) Applic- ability: Rating:

5. Does this employee observe the organization's policies and procedures? Applic- ability: Rating:

6. How does this employee organize work and analyze problems? (Set objectives and priorities? Manages personal resources efficiently to Applic- meet objectives?) ability: Rating:

7. How effectively does this employee keep current in their profession and the qualifications necessary to meet expectations? Applic- ability: Rating:

8. How effectively does this employee make decisions and generate creative solutions? (Timely? Effective? Takes appropriate risks? Applic- ability: Rating:

9. How effectively does this employee work with people both inside and Applic- outside the organization? ability: Rating:

10. How effectively does this employee communicate with others? (Oral presentations? Listening skills? Written memos, letters, reports, Board Applic- dockets?) ability: Rating:

11. How effectively does this employee manage the productivity of his/her employees? (Delegates tasks to get the job done? Uses staffing Applic- efficiently?) ability: Rating:

12. How effectively does this employee develop staff and actively seek growth opportunities? (Promotes and encourages qualified employees Applic- as opportunities are available?) ability: Rating:

13. How effectively does this employee develop budget requests and manage costs? (Uses financial resources efficiently? Meets budgets?) Applic- ability: Rating:

14. How well does this employee supervise, appraise and develop subordinates? (Completes annual performance reviews on a timely basis? Accurately assesses performance and gives feedback? Trains Applic- subordinates? ability: Rating:

15. How effectively does this employee minimize potential for legal/employment relation issues ensuring compliance with Human Applic- Resources policies? ability: Rating:

16. How effective is this employee in hiring, training, and promoting qualified minorities, females, and disabled individuals thereby contributing to a diverse work environment? Applic- ability: Rating:

Calculate Average Rating of Section C (total points ÷ by number of rated categories):

SUMMARY OF RATINGS

Total points A. Job Responsibilities x 3.5 = (35 percent of overall total) B. Goals & Objectives x 3.5 = (35 percent of overall total) C. Job Comportment x 3.0 = (30 percent of overall total) TOTAL PERFORMANCE POINTS

OVERALL PERFORMANCE RATING SCALE: Impressive 10 - 13 Effective 14 - 23 Limited 24 - 32 Inadequate 33 - 40

PERFORMANCE SUMMARY

Evaluator’s Comments:

Evaluator’s Signature: Date:

Employee’s Comments:

Employee’s Signature: Date:

NON-EXEMPT PERFORMANCE REVIEW

EMPLOYEE NAME: DATE:

DEPARTMENT: TITLE:

RATING PERIOD FROM: TO:

RATED BY: OVERALL RATING:

APPROVED BY:

PLEASE INDICATE OVERALL RATING

IMPRESSIVE RATING 1 Performance consistently exceeds expectations for the position.

EFFECTIVE RATING 2 Performance meets position requirements.

LIMITED RATING 3 Performance does not meet expected levels. Improvement is needed to meet position standards.

INADEQUATE RATING 4 Performance consistently does not meet expected levels. Overall performance must improve immediately.

PERFORMANCE REVIEW

1. Job Knowledge Rating: Consider the extent to which the employee demonstrates a thorough knowledge of job duties; applies the knowledge required to fulfill the duties and responsibilities of the position, and appreciates the purpose of the job. ______

______

2. Quality of Work Rating: Consider the accuracy, thoroughness, neatness, and related characteristics to the work produced or accomplished. ______

______

3. Productivity Rating: Consider the extent to which the employee consistently maintains the volume of work in relation to the volume required for proficient job performance. ______

______

4. Communication Rating: Consider the ability of the employee to transmit knowledge and ideas orally and/or in writing with the effectiveness and clarity relative to the requirements of the job. Also consider the nonverbal communication of a professional manner and appearance. ______

______

5. Attendance Rating: Consider the employee's prompt arrival to work, number of days absent, time spent away from job duties during the day, and leaving early. (Do not consider absences taken under the Family and Medical Leave Act and/or any state family and medical leave act.)

______

6. Flexibility/Adaptability Rating: Consider how the employee adjusts to varying job assignments, day to day demands, and/or a work environment impacted by change. ______

______

7. Level of Required Supervision Rating: Consider how the employee's performance dictates the amount of time and effort required to direct and manage the employee. ______

______

8. Performance Under Pressure Rating: Evaluate the manner and consistency of performance under pressure, and the ability to meet schedules and deadlines. ______

______

9. Teamwork Rating: Evaluate the employee's ability to cooperate for the good of the group and how willing he/she is to work with others. ______

______

10. Continued Improvement Rating: Weigh participation in support staff seminars, in-house training, and personal efforts to grow and improve in job related knowledge. ______

______

Additional Comments - Including Growth Potential Identify areas in which this employee is particularly adept and that may be utilized for service in positions of added responsibility. ______

SUMMARY OF RATINGS

1. Job Knowledge 2. Quality of Work 3. Productivity 4. Communication 5. Attendance 6. Flexibility/Adaptability 7. Level of Supervision 8. Performance Under Pressure 9. Teamwork 10. Continued Improvement TOTAL

DEFINITION OF PERFORMANCE RATINGS (Please transfer to front page)

Impressive 10 - 13 Effective 14 - 23 Limited 24 - 32 Inadequate 33 - 40

EMPLOYEE COMMENTS: ______

EMPLOYEE ACKNOWLEDGEMENT: I have read and discussed this completed appraisal with my supervisor, and I have received a copy. I understand that my signature indicates that I have been personally apprised of my performance. It does not, however, indicate my agreement with the evaluation.

EMPLOYEE SIGNATURE: DATE:

DIRECT DEPOSIT AUTHORIZATION FORM

I, ______(FIRST AND LAST NAME) AUTHORIZE INSERT NAME OF CHURCH/SCHOOL/DISTRICT DEPOSIT MY WAGES DIRECTLY INTO THE FOLLOWING BANK ACCOUNT(S). I ALSO AUTHORIZE THE PAYROLL DEPARTMENT TO WITHDRAW FUNDS FROM THE SAME ACCOUNT IN THE EVENT OF AN OVERPAYMENT.

1. BANK NAME: ______ACCOUNT TYPE: Checking Savings

ABA ROUTING # ______ACCOUNT # ______

2. BANK NAME: ______ACCOUNT TYPE: Checking Savings

ABA ROUTING # ______ACCOUNT # ______

PARTIAL AMOUNT $ ______

3. BANK NAME: ______ACCOUNT TYPE: Checking Savings

ABA ROUTING # ______ACCOUNT # ______

PARTIAL AMOUNT $ ______

ACKNOWLEDGMENT OF INTERNATIONAL ACCOUNT TRANSFER

I AFFIRM THAT, REGARDING ELECTRONIC PAYMENTS TO THE DESIGNATED ACCOUNT MUST COMPLY WITH THE PROVISIONS OF U.S. LAW AS WELL AS THE REQUIREMENTS OF THE OFFICE OF FOREIGN ASSET CONTROL (OFAC). PLEASE CHECK ONE OF THE FOLLOWING:

I affirm that, regarding electronic payments NAME OF SCHOOL/CHURCH/DISTRICT may remit to the financial institution for credit to the account that I have designated; the entire payment amount is subject to being transferred to a foreign bank account. I understand that any electronic payments may be remitted to me may be labeled with “IAT” as the standard entry class. I acknowledge that availability of funds credited to the account will be subject to my receiving financial institution’s policies and procedures.

PLEASE ATTACH A VOIDED CHECK AND RETURN THIS FORM.

______SIGNATURE DATE

INSERT IMAGE OF CHECK

THIS FORM IS ONLY TO BE COMPLETED AFTER EMPLOYMENT

Copy Sent:

NEW EMPLOYEE DATA SUMMARY The Lutheran ChurchMissouri Synod International Center

NAME: SS # Last First Middle Initial ADDRESS: Street

City State Zip

PHONE: ( ) MARITAL STATUS: 1 = Divorced 2 = Married GENDER: M = Male DATE OF BIRTH: 3 = Separated F = Female 4 = Single

DATE EMPLOYED: MEMBER LCMS? Y or N

ON SYNOD ROSTER? Y or N _____ Ordained Minister _____ Certified Lay Minister (If yes, please check one) _____ Commissioned Minister _____ DCE

CITIZENSHIP: _____ N = Non-Citizen P = Permanent Resident Y = Citizen

IN CASE OF EMERGENCY, PLEASE NOTIFY:

NAME: RELATIONSHIP:

ADDRESS: Street

City State Zip

HOME PHONE: ( ) WORK PHONE: ( )

Please list and give dates for all previous full-time employment with the LCMS (I.C., district, college, seminary, CHI, CPH, KFUO, school, parish, etc.)

LOCATION: DATES: DATES: DATES:

SIGNED: DATE:

-- To be completed by Human Resources --- Citizenship Verification ______Employee Holiday (EH) Available ______Vacation ______days in 20_____ Personal Leave Time Accumulates ______hours effective the 16th of each month.

DATE: ______

EXIT INTERVIEW

During your employment with The Lutheran Church—Missouri Synod you learned much about us as a place to work; therefore, we are anxious to learn your overall impressions of our policies and practices as an employer. Please be open with your comments. The questionnaire is confidential and does provide us with valuable feedback as to our strengths and weaknesses as an employer.

1. How long were you employed?

2. In which department were you employed? ______

3. What are your reasons for leaving?

4. If you are going to another job, what influenced you to do so?

5. What do you think of the department in which you worked at the LCMS?

6. What did you like most about:

a. Your job?

b. Your department?

c. The LCMS as your employer?

PAGE 2

7. What did you like least about:

a. Your job?

b. Your department?

c. The LCMS as your employer?

8. Were you were kept informed about activities and changes in policies and practices within:

a. Your department?

b. Your employer?

9. How would you rate the quality of the supervision you received?

10. Did you feel free to make comments and suggestions to your supervisor?

11. Do you feel you had the opportunity to make good use of your skills and abilities?

12. How do you feel about the amount of work you were expected to do?

13. If you felt you were overworked or underworked, what could be done to correct this? e.g. add staff, distribute duties among existing staff, decrease staff.

14. Do you feel you had a chance for advancement?

PAGE 3

15. Please rate the LCMS on the following: Excellent Good Average Below Average Poor No Opinion Your pay rate Holidays Vacation Health/Benefit Plans Other (Specify)

16. What additional training would have helped you in your job?

17. Would you recommend to a friend the LCMS as a place to work?

Yes, of course:

Yes, with reservations:

18. What is the single action the LCMS could do to make this a better place to work?

19. Please share any additional comments you have about your job, department, or the LCMS:

Thank you for completing this survey. We wish you much success in your future endeavors.

THE LUTHERAN CHURCHMISSOURI SYNOD EMPLOYEE TIME SHEET EMPLOYEE ID: DEPARTMENT: POSITION NO: NAME: PAY PERIOD ENDING DATE:

REG OT ABSENCE VAC LEAVE DAY DATE IN OUT IN OUT IN OUT HOURS HOURS FROM TO HOURS HOURS EH OTHER FORFEIT REMARKS SUN MON TUES WED THURS FRI SAT SUN MON TUES WED THURS FRI SAT SUN MON TUES WED THURS FRI SAT TOTALS TOTALS

EMPLOYEE’S SIGNATURE AUTHORIZED SIGNATURE

NOTES: 4. EH = EMPLOYEE HOLIDAY 1. TIME REPORTS ARE DUE IN PAYROLL 5 WORKING DAYS PRIOR TO PAYDAY. 5. OTHER 2. FOR EXTENDED FMLA (3 OR MORE DAYS), PLEASE REFERENCE THE x C = COMPASSIONATE LEAVE (PLEASE NOTE RELATIVE FOR WHOM LEAVE EMPLOYEE HANDBOOK OR CONTACT HUMAN WAS TAKEN) RESOURCES. x J = JURY DUTY (ATTACH JUROR'S NOTICE FROM DEPUTY CLERK'S OFFICE) 3. ABSENCES WHICH MAY QUALIFY FOR FMLA (IDENTIFIED BELOW), NEED TO BE x D = EXTENDED ABSENCES (5 DAYS OR MORE) NEED TO BE NOTED IN FLAGGED IN THE REMARKS REMARKS SECTION ABOVE. 6. PLEASE ENTER ACCOUNT TO BE CHARGED IN REMARKS IF IT IS DIFFERENT THAN THE REGULAR LABOR DISTRIBUTION FOR * BIRTH/ADOPTION/FOSTER CARE THE POSITION. * SERIOUS HEALTH CONDITION OF EMPLOYEE 7. REPORT ALL CATEGORIES IN NEAREST QUARTER HOURS. * SERIOUS HEALTH CONDITION OF SPOUSE/CHILDREN/PARENTS (SERIOUS HEALTH CONDITION = MEDICAL CARE BY A PHYSICIAN)

CONCORDIA PLAN SERVICES The Lutheran Church—Missouri Synod

RECORD OF INELIGIBLE WORKER

Only those eligible workers who are employed on a full-time basis can be enrolled in the Concordia Plans. Part- time workers and temporary workers are not eligible to participate in the Concordia Plans. Below is an explanation of full-time, part-time, and temporary for purposes of the Concordia Plans.

FULL-TIME: Any worker employed more than 20 hours per week and more than 5 months per year. This includes all workers – called, on contract, or hired.

PART-TIME: Any worker employed 20 hours or less per week.

TEMPORARY: Any worker employed 5 months or less per year.

To inform us of an ineligible worker this form must be completed and returned to the Concordia Plan Services office.

To be completed by: To be completed by:

PART-TIME WORKER TEMPORARY WORKER

I am regularly employed by the employer named below My employment with the employer named below is approximately ____ hours per week, which became expected to terminate within ___ months. Therefore, I effective on (date) ______. Therefore, I acknowledge that for purposes of the Concordia Plans, I acknowledge that for purposes of the Concordia Plans, I am a temporary worker and thereby ineligible to am a part-time worker and thereby ineligible to participate in the Concordia Health Plan, the Concordia participate in: Retirement Plan, and the Concordia Disability & ______Concordia Health Plan Survivor Plan. ______Concordia Retirement Plan ______Concordia Disability & Survivor Plan

Worker’s Full Name (please print) Worker’s Full Name (please print)

Worker’s Signature Date Worker’s Signature Date

Name of Employer Address City State Zip

Signature of Officer of Employer Date

APPLICATION FOR EMPLOYMENT INSERT NAME OF CHURCH/SCHOOL/DISTRICT

Thank you for your interest in employment at NAME OF CHURCH/SCHOOL/DISTRICT.

If because of a disability, you are in need of any special assistance with this application form or the application or interview process, please inform a staff member in the Human Resources office so that appropriate accommodations may be made:

We are an Equal Opportunity Employer. NAME OF CHURCH/SCHOOL/DISTRICT does not discriminate in the employment of individuals on the basis of race, color, national or ethnic origin, disability, gender or age. Because we are a church body, The Lutheran Church—Missouri Synod retains the right to give preference in hiring to persons who are members in good standing of an LCMS congregation.

PERSONAL DATA Home Name Telephone ( ) Last First Middle Present Address Street Address City State Zip Code Previous Address Street Address City State Zip Code

Home Phone: ______Work Phone: ______

Cell Phone: ______Email Address:______

Religious Affiliation Name, address and pastor of congregation

Are you 18 years or older? Yes No

WORK PREFERENCE

Type of work or position applied for Referred by

Interested in Full-time Part-time Summer Salary required

Date available for work

Will relocate if job requires it? Yes No

Are you able to meet the attendance requirements of the position? Yes No

Will you work overtime if required? Yes No If no, please explain: ______

OTHER

Should you be employed by NAME OF CHURCH/SCHOOL/DISTRICT, would you engage in any other business? Yes No

If yes, where and in what capacity? ______

Are you a citizen of the United States or do you have a valid authorization to work in the United States? Yes No

Have you ever been convicted, pleaded guilty or pleaded “no contest” to any crime, other than traffic violations in the pasts? Yes No If yes, please explain

Answering “yes” to this question does not constitute an automatic bar to employment. Factors such as date of the offense, seriousness and nature of the violation, rehabilitation and position applied for will be taken into account.

Have you ever been discharged or asked to resign by a previous employer? Yes No If yes, please explain

PERSONAL REFERENCES

Name and address Telephone Business/Profession Length of acquaintance

1. 2. 3. 4.

EMPLOYMENT HISTORY

List your complete employment record including temporary, regular and part-time in date order with most recent first. List military serve, if applicable, as part of employment record. MOST RECENT EMPLOYER ͸ƌĞǇŽƵĐƵƌƌĞŶƚůǇǁŽƌŬŝŶŐĨŽƌƚŚŝƐĞŵƉůŽǇĞƌ Yes No If yes, may we contact? Yes No

Company Name Telephone ( ) Address Street Address City State Zip Code Starting Position Title Ending Position Title Supervisors Name Title

Beginning Ending Full-time Employed From Salary Salary Part-time

Brief job description

Reason for leaving ______

If you were employed under a different name, give that name in full

Company Name Telephone ( ) Address Street Address City State Zip Code Starting Position Title Ending Position Title Supervisors Name Title Beginning Ending Full-time Employed From Salary Salary Part-time

Brief job description

Reason for leaving ______

If you were employed under a different name, give that name in full

Company Name Telephone ( ) Address Street Address City State Zip Code Starting Position Title Ending Position Title Supervisors Name Title

Beginning Ending Full-time Employed From Salary Salary Part-time

Brief job description

Reason for leaving ______

If you were employed under a different name, give that name in full

UNEMPLOYMENT Account for all periods of two weeks or more for which you have been without work in the last five years. FROM TO State reason Mo. Yr. Mo. Yr. Mo. Yr. Mo. Yr. Mo. Yr. Mo. Yr. Mo. Yr. Mo. Yr. Mo. Yr. Mo. Yr.

EDUCATION Years Graduation Diploma/ Major Grace Point School Name/Address Attended Date Degree Subject Average High School Address Business/Trade School Address College/University Address

OTHER TRAINING, CURRENT LICENSES, OR CERTIFICATES: 1.______2.______3.______4.______

Background Screening Authorization and Release

In connection with my application for employment, I understand that an investigative consumer report may be re-quested that will include information as to my character, work habits, performance and experience, along with reasons for termination of past employment. I understand that, as directed by company policy and consistent with the job described, you may be requesting information from public and private sources about my: workers’ compensation injuries, driving record, criminal record, education, credentials, credit and references. I voluntarily and knowingly authorize the company, and/or its agents, to verify any aspect of the information contained in my employment application or through public or private sources. I further understand that misrepresentations or omissions in my employment application may be cause for rejection or subsequent dismissal if I am hired. Medical and workers’ compensation will only be requested in compliance with the Federal Americans with Disabilities Act (ADA). According to the Fair Credit Reporting Act (FCRA), I am entitled to know if employment is denied because of information obtained by my prospective employer by a consumer reporting agency. If so, I will be notified and given the name and address of the agency or the source which provided the information. I voluntarily and knowingly authorize any former employer, person, firm, corporation, school or government agency, its officers, employees and agents to release to you or your agents any and all information concerning my former employment. I understand that the employment information may include, but is not necessarily limited to, performance evaluation and reports, job descriptions, disciplinary reports, letters of reprimand and opinions regarding my suitability for employment possessed by it. I voluntarily and knowingly fully release and discharge, absolve, indemnify and hold harmless you, your agents and any former employer, person, firm, corporation, school or government agency, its officers, employees and agents from any and all claims, liability, demands, causes of action, damages, or costs, including attorney’s fees, present or future, whether known or unknown, anticipated or unanticipated, arising from or incident to the disclosure or release of any such information to you, your agents, or consumer reporting agency. I hereby authorize you to procure a consumer report as part of the pre-employment background investigation. If hired, this authorization shall remain on file and shall serve as an ongoing authorization for you to procure consumer reports at any time during my employment period.

Signature Date

The following information is required by law-enforcement agencies and other entities for positive identification process when checking public records. It is confidential and will not be used by any other purposes.

PLEASE PRINT CLEARLY

Name: Last First Middle

Other names used (include maiden name, aliases and nicknames):

Address:

City/State/ZIP:

Telephone Number: Social Security Number: Date of Birth:

Driver’s License Number: Type: State:

Acknowledgment of Understanding and Consent

PLEASE READ BEFORE SIGNING. If you have any questions regarding

this statement, please ask them of an employment interviewer before signing.

This organization does not discriminate in hiring or employment on the basis of race, color, national origin, sex, age or disability, except with respect to positions that fall within the ministerial exception. Because we are a church body, The Lutheran ChurchMissouri Synod retains the right to give preference in hiring to persons who are members in good standing of an LCMS congregation.

It is understood that this application is not an obligation to provide employment. The application will be kept active for three months and it must be renewed to be active for a longer period.

I hereby certify that the statements made in this employment application are true and complete, to the best of my knowledge, and I authorize investigation of those statements. I understand that falsification, misrepresentation or omission of facts will be sufficient cause for elimination of any consideration for employment or cause for dismissal from the Synod, if I have been employed.

The Synod has the right, exercisable at any time, and without notice, to change wages, to change or eliminate benefits and policies, as well as to terminate, with or without cause, the employment relationship. I understand that no manager or representative of The Lutheran ChurchMissouri Synod, other than the Human Resources Committee of the Synod, has any authority to enter into any agreement for employment for any specified period of time or to make any agreement contrary to the foregoing.

I understand that all employees of the Synod are expected to respect the official doctrines of the Synod and to pursue lifestyles that are morally in harmony with its teachings.

I agree that I have read and understand the above acknowledgments and agreements and recognize all of the above as conditions of employment.

Signature Date

81 To be copied one sided APPLICATION FOR EMPLOYMENT OR VOLUNTEER APPOINTMENT

THE EPISCOPAL DIOCESE OF UTAH ______(Parish, School or Agency)

The Diocese and the above-named Parish, School or Agency need information about all clergy and lay employees, as well as for all volunteers who regularly supervise activities for, or minister to, minors or vulnerable adults. We seek this information in an attempt to reduce the risk that persons who may have a history or propensity for misconduct are placed in a position that could result in charges of Sexual Misconduct being made.

All clergy prior to ordination or acceptance into the diocese, and lay employees, and all volunteers who regularly supervise activities for, or minister to, minors or vulnerable adults in the Episcopal Church in Utah (in Parish, Mission, Camps, Day Schools, Diocesan Institutions, Diocesan Ministries, etc., but excluding unpaid Sunday School teachers), are being asked to complete this document. The questions are not meant to question your integrity. The Church is concerned about the safety of all people including our young people. It is also concerned about protecting you and your ministry, as well as protecting the ministry of the Church. We must have information in order to do both.

Some of the information being requested may duplicate what is asked for in other materials. Please bear with the burden of providing it again. The confidentiality of your responses to this questionnaire will be honored and therefore this questionnaire will be reviewed by the Office of the Chancellor. If you are unable to answer one or more of these questions, you may call Stephen Hutchinson at 801-322-4131 to discuss the matters personally. However, if you do not call, we will consider an incomplete application as a confidential request that you be withdrawn from further consideration for this position.

Thank you for your cooperation.

Form 002 Last revision: December 2013 Please fill out and return ONLY in confidential envelope Provided with this application

The information in this Part A is not necessarily considered confidential.

If you need more space to respond to a question, feel free to attach additional pages so that your answers may be complete.

PART A: Today’s Date:______

Position you hold or will hold with the Diocese of Utah:

at Parish/Organization:

Is this position a: □ paid position or □ volunteer position

How many hours per week you typically will work or volunteer in this position?

PERSONAL INFORMATION

1. Name: Last First Middle

For correspondence to you, please indicate:

Mr. □ Miss/Ms. □ The Rev. □ Other □, please indicate:

Home Address:

City, State: Zip:

Dates of Residency at the above address (years lived at above):

Telephone number(s): Home: (______) Work: (______) Ext. Cell: (______)

Best time to contact you:

Email address:

I HAVE a valid driver’s license [more information is requested later in form]

Form 002 1 Last revision: December 2013 Are you legally eligible to work in this country? □ Yes □ No Note: If you are chosen for a paid position, you will be required to show documents verifying your employment eligibility and identity to complete the INS Form I-9 as required by the Immigration Reform and Control Act.

2. Other names used: Maiden:

Former, nicknames, alias, also known as, etc.:

CHURCH INFORMATION

3. Church Affiliation:

How many years:

Clergy Contact (Name):

Address:

Zip:

Phone:

For Clergy, all dioceses of canonical residency in last ten years:

EDUCATIONAL

4. List the name, location, degree granted and dates of attendance of every educational institution including high school and institutions of higher learning in which you have been enrolled.

Name of Institution: Address: City, State: Zip: Counselor/Personal Advisor’s name (if known): Type of School: Name of Program or Degree: Dates Attended Date Diploma/Degree Received: Name used while attending (if different):

continues next page

Form 002 2 Last revision: December 2013 Name of Institution: Address: City, State: Zip: Counselor/Personal Advisor’s name (if known): Type of School: Name of Program or Degree: Dates Attended Date Diploma/Degree Received: Name used while attending (if different):

PROFESSIONAL LICENSES

5. List all professional licenses you hold. Type of License: Licensing Authority: License Number: State Where Issued: Date Issued: For more space, please use the back of this page

Form 002 3 Last revision: December 2013 PREVIOUS ADDRESSES

6. Previous home addresses (list all in the last ten years, and dates there).

If none, please indicate: [ ] None

Street Address: City, State: Zip: Dates:

Street Address: City, State: Zip: Dates: For additional space, use the back of this page

EMPLOYMENT HISTORY

7. List by name, street address, telephone number, contact person and dates of employment for all employers in the last ten years or last two employers. (If you have had the same employer for ten years, list your two most recent employers. List last two employers if more than ten years has passed since last employed.) Start with the most recent. PLEASE NOTE: For all clergy persons, information will automatically be requested from your present and past Bishops.

If this is your current employer, do we have permission to contact? □ Yes □ No

If you indicate not to contact your employer, please give reason (e.g. to avoid jeopardizing current employment, etc.:

Name of Employer: Address: City, State: Zip: Immediate supervisor’s full name: Phone: (_____) Ext. Your position: Dates of employment: to Reason for leaving:

continues next page

Form 002 4 Last revision: December 2013 Name of Employer: Address: City, State: Zip: Immediate supervisor’s full name: Phone: (_____) Ext. Your position: Dates of employment: to Reason for leaving:

Name of Employer: Address: City, State: Zip: Immediate supervisor’s full name: Phone: (_____) Ext. Your position: Dates of employment: to Reason for leaving:

For additional space, please use the back of this page

VOLUNTEER EXPERIENCE

8. List by name, street address, telephone number, contact person and dates of participation/service, all church organizations (by diocese and parish as applicable) and all youth-service organizations in which you have participated or served in the last ten years.

Name of Organization: Parish / Diocese (if applicable): Address: City, State: Zip: Contact person’s full name: Phone: (_____) Ext. What did you do? Dates of participation:

continues next page

Form 002 5 Last revision: December 2013 Name of Organization: Parish / Diocese (if applicable): Address: City, State: Zip: Contact person’s full name: Phone: (_____) Ext. What did you do? Dates of participation:

Name of Organization: Parish / Diocese (if applicable): Address: City, State: Zip: Contact person’s full name: Phone: (_____) Ext. What did you do? Dates of participation:

For additional space, please use the back of this page

OTHER REFERENCES

9. List by name, address, phone number and nature of relationship, two personal references (other than family members) who have known you for at least five years and with whom we may make contact concerning your fitness for your present or potential position.

Name: Street Address: City, State: Zip: Phone: (_____) How long have you known this person? Relationship to you:

Form 002 6 Last revision: December 2013 10. Are you able to perform the essential functions of the position in which you are working or for which you are applying? Yes ______No ______

a. If there are experiences or special gifts that you could bring to the position, please describe them.

b. If there are accommodations (e.g. flex time, accessibility, etc.) that could positively affect your ability to perform the duties of the position, please describe them.

11. What interests you about the position for which you are currently applying or volunteering?

12. What has prepared you for the position for which you are currently applying or volunteering?

Form 002 7 Last revision: December 2013 PART B: CONFIDENTIAL—THIS INFORMATION WILL BE REVIEWED ONLY BY THE OFFICE OF THE CHANCELLOR

CHURCH WORKER APPLICATION

Name:

Social Security Number: Date of Birth:

Driver's License Number: State: Expires:

I DO NOT HAVE a driver’s license

1. Have you had any driver's license or other license (e.g., professional) suspended or revoked? Yes ______No ______

If so, give full details.

2. Have you ever been convicted of driving under the influence, driving while intoxicated or driving while impaired? Yes______No______

If so, list each such conviction by date and location.

3. Have you ever been arrested, charged, indicted or convicted of any felony or misdemeanor? Yes ______No______

If so, give full details.

Form 002 8 Last revision: December 2013 4a. (For Clergy) Have you ever been in treatment or referred to treatment for substance abuse? Yes ______No ______

If so, explain fully what you have done about the situation.

4b. (For Lay) Are you currently in treatment or aftercare for substance abuse?

Yes______No______

If so, explain fully what you are doing about the situation.

5. Has any investigation ever been undertaken, or any charge, complaint, or presentment ever been made against you, with respect to any allegations of sexual harassment? Yes ______No______

If so, give full details.

6. Have you ever been accused of physically, sexually or emotionally abusing a minor or an adult? Yes ______No______

If so, give full details.

7. Have you ever been dismissed or removed by any other congregation, parish or diocese in the Episcopal Church or any similar body in any other church? Yes ______No ______

If so, give full details.

Form 002 9 Last revision: December 2013 8. Have you been a party in any civil lawsuit, divorce or bankruptcy within the last ten years? Yes ______No ______

If so, give full details.

9. Has a claim or lawsuit ever arisen with a past employer as a result of your actions? Yes ______No ______

If so, give full details.

10. (For clergy only) Has any investigation ever been undertaken, or any charge, complaint, or presentment ever been made against you, with respect to possible ecclesiastical discipline? Yes ______No ______

If so, give full details.

Authorization begins on next page

Form 002 10 Last revision: December 2013

CERTIFICATION OF INFORMATION AND RELEASE AUTHORIZING REFERENCE CHECKS

If selected, I agree to be bound by the Diocese of Utah’s policies and procedures, including but not limited to its Policies for the Protection of Children and Youth from Abuse and Code of Conduct for the Protection of Minors. I understand that these may be changed, withdrawn, added to or interpreted at any time at the Diocese of Utah’s sole discretion and without prior notice to me.

I understand that my employment or volunteering may be terminated, or any offer or acceptance of employment or volunteering withdrawn, at any time, with or without cause, and with or without prior notice at the option of ______(Parish, School or Agency), the Diocese of Utah or myself.

I certify the above information is accurate, complete and correct to the best of my knowledge and information. I understand that providing false information is grounds for not hiring me or choosing me for a volunteer position or for my discharge if I have already been hired or chosen. I understand and agree that a background investigation may be conducted with respect to me and that the information I have given may be verified by contacting persons and organizations with whom I have had contact or which may have information concerning me. I authorize any person, business entity or governmental agency who may have information relevant to the background investigation, whether or not identified in this Church Worker Application, to disclose the same to the Episcopal Diocese of Utah, by and through their independent contractor, Mind Your Business (“MYB”), including but not limited to, any courthouse, any public agency, any and all law enforcement agencies and any and all credit bureaus (if applicable), regardless of whether such person, business entity or governmental agency compiled the information itself or received it from other sources, including, for example, alcohol and controlled substance information from previous employers. In consideration of evaluation by the Episcopal Diocese of Utah of my employment/service application, I authorize the Diocese, by and through MYB, to perform all reference checks as allowed by law, including but not limited to, discussions with: Bishops/denominational executives/clergy, supervisors, co-workers, educational institutions, friends and/or associates, neighbors, business associates, or other individuals with whom I am acquainted or who the Diocese believes may have relevant information regarding my suitability for employment, service, or any other information bearing on my character, general reputation, personal characteristics, and/or trustworthiness. I further authorize the Diocese to perform the following checks: motor vehicle record, professional license, civil litigation, criminal (felony and misdemeanor), sex offender and predator registries, employment and education verification; a social security number verification; present and former addresses; civil history/record; and any other public record. I understand that I am entitled to a complete and accurate disclosure of the nature and scope of any background check report prepared on me upon written request to the Diocese that is made within a reasonable time after the date hereof. continues next page

Form 002 11 Last revision: December 2013 (INITIAL APPROPRIATE BLANK)

_____ I acknowledge the position for which I am applying may involve special risks which may require additional checks (e.g., credit checks, etc.). If so, I understand I will be notified in advance of any such additional checks. I will, in that event, either authorize the additional check or withdraw my application. _____ I further authorize the Diocese to perform a credit check due to the specific position (e.g. clergy, Diocesan Treasurer, parish treasurer) I will hold and have been notified by the hiring executive such credit check will be performed.

I also agree to release and hold harmless The Episcopal Diocese of Utah, the above- named Parish, School or Agency (if applicable), MYB, their officers, employees, agents and volunteers for their actions arising out of such background investigation and authorize them to request and receive such information. I further release any and all persons, business entities and governmental agencies, whether public or private, from any and all liability, claims and/or demands, of whatever kind, to me, my heirs, or others making such claim or demand on my behalf, for procuring, selling, providing, brokering, and/or assisting with the compilation or preparation of the consumer report and/or investigative consumer report hereby authorized. I acknowledge that the Diocese has made no representations of any kind as to whether employment will be offered at the conclusion of its investigation. Nothing contained in this application or in any pre-employment or pre-volunteering communication is intended to or creates a contract for either employment or volunteering or the providing of any benefit.

I have read and understand the above provisions.

Date: , 201____ (Signature)

Date: , 201____ As witness to the above signature, I hereby declare that the signatory signed this document in my presence, and that I personally know this person.

PARENT OR GUARDIAN'S CONSENT AND WAIVER (Required if applicant is under 18)

As the parent or legal guardian of the applicant, I hereby consent to the application for work or volunteer position for which the foregoing information is provided, and expressly consent and authorize the Episcopal Church to conduct such reference contacts and background investigation as it may deem appropriate in considering the application.

Parent or Guardian's Signature Date:

Witness: Date: (MUST BE SIGNED)

Form 002 12 Last revision: December 2013

Note to Applicant: Please provide names and dates for each educational institution

Name of Institution: Dates attended: -

RELEASE

I hereby voluntarily grant my permission to the above educational institution to release to the Episcopal Diocese of Utah any and all records pertaining to me, including a written response to the questions enclosed.

Date Signature

(Please print name)

(Maiden name, if applicable)

(Any alternate name(s) used while attending these institutions)

Social Security No.

Form 002 13 Last revision: December 2013

EMPLOYMENT LAW UPDATE 2015

Congregations in the Diocese should be aware of a few changes in California employment law in 2015. It is important that all employers follow these new laws and amend existing personnel policies accordingly. If you have not adopted personnel policies, now is the time to adapt the policy found on the Diocesan website for your congregation. Also attached is the change being made to the Diocesan Policies relating to sick leave; if you have adopted these policies you should make this change.

Following is a summary. Contact Chancellor Nancy Cohen – [email protected] - if you have questions.

1. Sick Leave. The California Healthy Workplaces, Healthy Families Act became effective January 1, 2015, but some implementation such as sick leave below not due until July l. Provisions include: a. Numbers i. Covers all employees working 30+ days in California regardless of number of employees. ii. One hour of paid sick leave per 30 hours of work iii. Carries over year to year – no payout on termination iv. Employers may cap at six days (48) hours v. Employers may limit usage to three days (24 hours) per year vi. May be used in increments of two hours or less b. Uses i. Health needs of employee or family member (parent, child, spouse, grandparent, grandchild, sibling, foster, step, adoption) ii. Preventive activities, e.g., shots, physicals iii. Victims of domestic violence, sexual assault or stalking for medical attention, shelter or crisis center, counseling, safety planning c. Requests i. Written or oral ii. Sick leave must be provided on request iii. Employees should provide reasonable advance request when foreseeable iv. Cannot obligate employee to find replacement d. Administration i. Must include accrual and usage on pay stub or other writing on pay day ii. Provide info to new hires iii. Display poster iv. Keep records for three years v. No retaliation vi. Even more generous policy must be updated – unlimited time off must be tracked

NMC 2.18.15 1 vii. Local more generous sick leave regulations not preempted

2. Bring Your Own Device a. Court decision from California Appeals court requires employers to reimburse employees “a reasonable percentage” of their cell phone bill for “necessary” work-related use, regardless of whether employee incurs additional expense. b. Not clear what is “necessary” or “reasonable.” Will watch for further developments.

3. Wage and Hour a. Currently $9.00 an hour b. January 1, 2016 - $10.00 an hour c. Local municipalities may require higher minimum wage d. Besides other requirements, an exempt employee must make at least $37,440 in 2015, $41,600 in 2016. e. Federal law may make further changes

4. Privacy a. Increased emphasis on protecting employee’s confidential information b. Employer should not request access to employee’s/potential employee’s social media

5. Discrimination a. Employers required to accommodate religious dress since 2013 – increasing activity in this area b. Some courts have ruled in favor of employees wishing to telecommute c. Pregnancy accommodation – Supreme Court decision pending on light duty – California already requires accommodation for pregnant employees d. Anti-bullying – sexual harassment prevention training must include anti-bullying section. e. Expanding protection for job applicants with criminal records –don’t ask for criminal record on initial application

NMC 2.18.15 2

EMPLOYEE CONFIDENTIALITY AGREEMENT

In consideration for employment with the Episcopal Diocese of Bethlehem (“the Diocese”), (the “Employee”) hereby acknowledges and agrees as follows:

1. Employee recognizes and acknowledges that because of his duties and position of trust as an employee of the Diocese, he may have access to Confidential Information. For purposes of this Agreement the term “Confidential Information” means all information treated as confidential by the Diocese, including without limitation, any and all information relating to personnel files, disciplinary actions, personnel actions, clergy files, employee files, health information, financial information, and any other confidential information in the possession of the Diocese.

2. Employee agrees that he will not, during his employment with the Diocese and or at any time thereafter, either directly or indirectly, disclose or use, without the prior written consent of the Bishop of the Diocese, any Confidential Information to any other person, church, diocese, or any other entity for any reason or purpose whatsoever. Upon termination of Employee’s employment, Employee will promptly deliver to the Diocese all records whether in hard copy or electronic, and any paperwork, compositions, devices, apparatus and other items that disclose, describe or embody Confidential Information, including all copies and reproductions of the Confidential Information in the Employee’s possession.

3. Notwithstanding the above, nothing contained herein shall prohibit the disclosure of such information if required by law or by any court or tribunal of competent jurisdiction; provided Employee immediately notifies the Diocese of such requirement and provides the Diocese with an opportunity to seek an appropriate protective order.

4. Nothing contained herein shall be construed as an agreement on behalf of the Diocese to employ Employee for any specified period of time or indefinitely. This agreement shall constitute the sole agreement between the parties hereto with respect to Confidential Information and may not be modified without the prior written consent of the Bishop of the Diocese.

5. If any provision of this agreement shall be invalid or unenforceable to any extent, the remainder of this agreement, and the application of such provision to other persons or circumstances, shall not be affected thereby and shall be enforced to the greatest extent permitted by law.

6. This agreement is governed by and shall be construed, interpreted, and enforced by the law of the Commonwealth of Pennsylvania.

7. Any action arising out of or relating to the agreement shall be brought in the federal and state courts located in the Commonwealth of Pennsylvania. Employee hereby consents to exclusive jurisdiction and venue in those forums.

Date: ______

*(DRAFT-to be printed on letterhead-draft)

AGREEMENT AND COVENANT FOR MUTUAL INTERIM MINISTRY

This agreement between the Wardens and Vestry of *[parish name] of *[city], Utah, and the Reverend *[full name of interim] is for the purpose of providing interim ministry services. This appointment is to continue for not less than twelve (12) months. The agreement may then be renewed in thirty (30)-day increments until shortly before the arrival of the new Rector, unless earlier dissolved by mutual consent or upon thirty (30) days’ notice of either party.

PREAMBLE

Goals of the Interim Ministry: Working closely with the Wardens, Vestry, Deacons, staff, and other Parish leaders, the major goal of the Interim Rector’s ministry at *[parish] is to prepare the congregation for the coming of the next Rector. To this end, the Vestry, Deacons and Interim Rector will cooperate and participate together toward the accomplishment of the following goals:

• Understanding the history of the Church and its relationships with previous clergy; • Working with the congregation in dealing with grief or any other unresolved issues arising from the previous Rector’s departure; • Dealing with the shifts in leadership roles that inevitably occur in times of transition; • Assisting the congregation in discovering its particular identity and what it dreams of being and doing in the future; • Reflecting on the congregation’s relationship with the Diocese and larger Church and the mutual responsibilities involved; • Developing a commitment to the anticipated leadership of a new Rector and the possibilities the future will bring.

To achieve these goals, the Vestry, Deacons and Interim Rector agree to work closely together and to support each other by prayer, word, and example.

SECTION A: RESPONSIBILITIES

1. Interim Rector: In communion with our Bishop, the Interim Rector shall lead *[parish] as pastor, priest and teacher, sharing in the councils of this congregation and of the whole Church. In a collaborative team approach to ministry, the Interim Rector shall work with the Vestry, with other clergy, and with lay leaders to maintain the regular schedule of worship and preaching, of pastoral calling on the sick and shut-ins, of pastoral offices (weddings, funerals, baptisms), of contact with newcomers, of other Parish ministries, and of the general DRAFT 10/2/2015 10:09 AM administration of the Parish, including supervision of the Parish staff. Holy Scriptures, The Book of Common Prayer, the Constitution and Canons of the General Convention and of this Diocese shall inform the words and actions of the Interim Rector. The Interim Rector normally shall not function as Chair of the Vestry, but will be available as a resource for Vestry leadership and team development. Interim Rector will not be eligible to be a candidate for Rector, and the Interim Rector, if requested, may work with the Search Committee and consultants in the development of the Parish profile and position description.

2. Vestry: Following the Canons of this Church, the Vestry will act as legal agent for the Parish in all matters regarding its corporate property, and its financial and administrative responsibilities to the Parish, the Diocese, the larger Church, the community, and the Interim Rector and other staff members. In addition, the Vestry will work closely with and support the Interim Rector in fulfilling the Parish goals during the interim period.

3. Congregation: Members of the Laity will support and cooperate with the Interim Rector and the Vestry in fulfilling the Parish goals during the interim period, giving sufficiently of their time, energy, and resources to fulfill said goals. It is to be understood that all ministries excluding those reserved for an ordained minister are mutual ministries of the Interim Rector and Parish members of the Laity.

SECTION B: TIMES OF WORK AND LEAVE

1. Scheduled Workweek: The Interim Rector’s scheduled workweek is regularly five (5) days, which shall include Sunday. The Interim Rector is expected to preserve at least one (1) continuous twenty-four (24)-hour period each week of personal leave to be used solely for personal and family use and will have an additional day off per week. Like other Vestry members and parishioners, work on weekends or evenings may be necessary in addition to *[his/her] regular working hours.

2. Paid Leave: The Interim Rector will have the following periods of leave at full compensation:

a. Paid holidays in accord with established Church policy;

b. Annual vacation at the rate of thirty (30) days per year, including up to five (5) Sundays, the time to be decided by mutual agreement of the Interim Rector and the Vestry.

c. Continuing education leave up to five (5) days per year for one year.

2 SECTION C: COMPENSATION AND BENEFITS

For all services rendered by the Interim Rector under this Agreement, *[parish if rector, Diocese if vicar] shall pay:

1. An annual cash stipend of $*[______]. The stipend will be paid at the end of each month. A portion of this amount will be designated as housing allowance subject to Internal Revenue Service guidelines.

2. The Church Pension Fund Assessment based on the CPF formula.

3. Medical, dental and life insurance as provided by the Diocese and subject to the premium participation policy of the Diocese, including medical and dental coverage on Interim Rector’s spouse should Interim Rector’s spouse become ineligible for present insurance.

4. Short-term and long-term disability insurance.

The Interim Rector’s prolonged illness or disability may occasion re-negotiation of compensation or termination of this Agreement.

SECTION D: EXPENSES

*[Parish] shall pay the following expenses incurred by the Interim Rector in fulfilling the duties of the office:

1. Normal expenses of Church office operation (such as secretarial services, equipment, supplies, telephone, postage, etc.).

2. Reimbursement of full IRS mileage rate for travel and for out-of-pocket expenses such as parking fees, tolls, bus fares, etc., paid monthly.

3. The cost of a telephone in the Interim Rector’s residence. The resident telephone number will be published to insure the Interim Rector’s ready accessibility in case of emergencies. The Interim Rector shall pay the cost of all personal long distance calls.

4. A continuing education allowance of up to $*[______] per year.

5. Reimbursement for professional expenses, such as convention expense, clergy association membership, etc.

6. A moving allowance to cover all moving and travel expenses incurred in making the moves from, and in returning to, the Interim Rector’s permanent residence.

3 SECTION E: DISCRETIONARY FUND

The Discretionary Fund will be handled according to the Diocesan policy and local rules for use adopted by the Vestry.

SECTION F: SUPPLEMENTARY COMPENSATION

The Interim Rector shall not charge fees for performing any rites of the Church (for example: baptisms, marriage, funerals) for members of *[parish].

The Interim Rector may, however, receive income from other sources, including income from sermons, books or articles published outside the Parish, and from fees and honoraria for previous commitments.

SECTION G: USE OF BUILDINGS

In addition to use and control of the Church and Parish Buildings for the discharge of duties of the Interim Rector’s office, as provided by Canon law, the Interim Rector shall have the right to grant use of the building to individuals or groups from inside, or outside, the Parish, following guidelines approved by both the Vestry and the Interim and on occasion by the Chancellor of the Diocese.

SECTION H: MINISTRY REVIEW

The Interim Rector, Wardens, and Vestry shall discuss and mutually review the total ministry of the Parish on a regular basis in order to:

1. Provide them each an opportunity to assess how well they are fulfilling their responsibilities to each other and the ministry they share;

2. Determine progress on the goals stated in the PREAMBLE above, and adjust or change goals as needed;

3. Recognize, affirm, and celebrate what has been accomplished together;

4. Isolate areas of conflict or disappointment which have not received adequate attention and which may be adversely affecting mutual ministry;

5. Clarify expectations of all parties to help put any future conflicts in manageable form;

6. Plan healthy closure, including an exit interview, for the interim ministry and prepare for the coming of the next Rector.

A mutually agreed upon third party may be engaged to facilitate any steps in the review process.

4 SECTION I: OTHER CONSIDERATIONS

1. The Interim Rector may fulfill prior commitments under conditions mutually agreed upon by the Vestry and the Interim Rector.

2. Parental leave may be taken for the period of time immediately surrounding the birth of a child to the Interim Rector *[if Interim is male, also include: or spouse], beginning at the time decided by the Interim Rector.

3. Payment made on behalf of the Interim Rector’s portion of Self-Employment Compensation Assessment (SECA) will be included in the gross stipend calculation.

4. Compensation for retired clergy will be worked out by mutual agreement in consideration of CPF and Social Security income requirements.

5. If the Vestry terminates this Agreement for other than proper cause, the Vestry agrees to continue compensation to the Interim for the normal thirty (30)-day notice period, plus an additional thirty (30) days unless the Interim begins comparable employment within the total sixty (60)-day period.

6. A majority of the Vestry, excluding the Interim, may terminate this Agreement at any time for proper cause, with the consent of the Bishop. Proper cause is defined as breach of this Agreement by the Interim or a failure of the Interim, in the opinion of the Vestry and the Bishop to conduct services, Church affairs, and personal affairs according to the Canons of the Episcopal Church.

SECTION J: OTHER AGREEMENTS

1. The Interim Rector will begin duties in the Parish no later than *[date], unless delayed by adverse circumstances. The tentative moving date is during the week of *[date].

2. All pay and benefits shall become effective on reporting for work.

3. This Agreement and Covenant for Mutual Ministry shall be made part of the minutes of the next Vestry meeting following its signing, and approval by the Bishop, and copies shall be given to individuals who subsequently become members of the Vestry. This Agreement is subject to review by the Diocesan Deployment Officer and approval by the Bishop.

4. This Agreement and Covenant for Mutual Ministry shall be conditional on satisfactory report from the background check required by Diocesan policy.

5. This Agreement and Covenant for Mutual Ministry may be changed by mutual agreement of the undersigned parties.

5 6. If the Interim Rector and Vestry are in disagreement concerning interpretation of this agreement, either party may appeal to the Bishop or arbiter.

Date:______Interim Rector

Date:______Senior Warden

Date:______Reviewed by Diocesan Deployment Officer

Date:______Approved by the Bishop