UP FRONT
Legal Issues in Human Resource Management: Rendering Unto Caesar While Rendering Unto God
Mary Angela Shaughnessy  |  Fall 2009

Pastors and other pastoral leaders need to be aware of the law when it comes to dealing with church employees, and to avoid legal entanglements, and they also need to measure their actions against gospel values.

Approximately seven years ago, I wrote an article for this magazine (Winter 2002), which contained ten tips for “lawful ministry.” The information offered in the ten tips remains valid today. However, issues not even thought of seven years ago have emerged to create headaches and havoc for the parish manager/administrator/leader. In no arena is this more apparent than in human resources.

If “Father’s word” and the “bishop’s wish” were not good enough reasons for doing or not doing something seven years ago, they are even less valid today. Employees want proof: “Exactly, where does it say that I cannot do that? Or you can do it? Show me the law that says that. It doesn’t say that in the handbook. Handbook? What handbook? I didn’t know we had one.”

Most managers and administrators know that anyone can bring a lawsuit; all one needs is a filing fee. But it can be a long walk from the courthouse to the bank. Nonetheless, defending a lawsuit can be very expensive in both time and money. Thus, the manager’s goal should be the avoidance, rather than the winning, of lawsuits.

Jesus himself exhorted his followers to “render unto Caesar the things that are Caesar’s and unto God the things that are God’s.” Sometimes, though, the real challenge is distinguishing between the two. Church leaders want to foster gospel community, but fostering that community can often seem alien to the advice that diocesan or parish counsel offer. If an employee who has retained a lawyer over a legal issue wants to just come in and talk, why shouldn’t the leader agree? Why is it necessary to anticipate the worst? Sadly, court decisions and settlements contain ample evidence of why being legally “smart” sometimes must trump compassion. Without discussing the ins and outs of various cases, which is beyond the scope of this article, I offer ten tips for legally sound human resource management.

1. In private institutions, such as the Catholic Church and its parishes, individuals have no constitutional rights.

The United States Constitution is concerned with what the government, not private institutions or individuals, can do. One must be in a government agency, such as a public school or city government, to have constitutional rights. A person who works for the state department of education or the health department could not be disciplined for expressing a pro-choice viewpoint, but an employee of a Catholic parish could be disciplined for such conduct. Why the difference? In the public sector, the employee has a First Amendment right of freedom of expression, but a person employed by a religious organization does not. The Catholic Church holds that abortion is wrong in all circumstances, and a person who works for the church can be required to refrain from expressing viewpoints that conflict with the teachings of the church.

Recent court decisions have upheld this right of the Catholic Church to require fidelity to the “company line,” particularly in the area of teachings about the sanctity of life. In reality, it is no different from a fast food chain requiring loyalty of its employees and disciplining one who is heard to tell someone that another company has a better hamburger.

2. Contract law binds Catholic institutions.

In the absence of constitutional rights, individuals must look to other law to protect them, and contract law is one such law. However, increasing numbers of Catholic institutions offer contracts only to teachers and principals. The director of religious education and the youth minister may also have contracts. The trend, however, is decidedly in the direction of no contracts. The vast majority of states are what are called “employment at will” states, which means employers can hire whom they want, when they want, and can terminate them for any reason or no reason. This reality should not be interpreted as meaning that a parish or other entity should be arbitrary in employment decisions, but rather that in the absence of any contractual document, employment at will is usually assumed.

3. Personnel handbooks can be considered contracts.

Faculty handbooks in schools, personnel manuals in dioceses and parishes, as well as policy and procedure and administrative manuals can be considered contracts. For this reason, many attorneys recommend inserting in the front of any handbook a disclaimer such as, “This handbook is not a contract.” I believe, however, that such a practice poses ethical issues. Does the parish want to say that the employee has to observe everything in the handbook while the parish is bound by none of it?

One way of avoiding the problem of a rule or policy that no longer “works,” is for the handbook to contain a provision whereby the administration reserves the right to change the provisions with prompt notice to all those affected. Such an approach seems fairer than one that in effect says, “We don’t have to play by the rules, but you do.” Over the course of a handbook’s life, some new issue will undoubtedly arise that no one considered, some new law will be passed, or the pastor will decide that a new regulation is appropriate. In the absence of a “right to amend” clause, an employee could argue that the parish or institution has no right to amend it. Even if the argument is ultimately futile, it is better to avoid being drawn into it in the first place.

4. Use “catchall” clauses.

Handbook writers can spend a great deal of time trying to think of every possible issue that should be included in the handbook and every possible action or inaction of which an employee could be guilty. Clauses such as “other inappropriate behavior” or “conduct unbecoming to a staff member of St. Michael’s parish” or other such clause can cover a multitude of situations. For example, a parish handbook would probably not contain a statement such as, “Employees are not to drink alcohol with, or supply alcohol to, minors.” One could argue that any reasonable person should know that such conduct is grounds for discipline as well as illegal in nature; a catchall clause makes any argument unnecessary. Such clauses can also allow for a certain amount of discretionary action on the part of the administrator, as he or she will ultimately be the determiner of what is “inappropriate behavior.”

Rather than list everything a person could do that is illegal, one could simply state, “Employees shall abide by all federal, state, and local laws.” Attorneys used to recommend that employers be very specific in rule making. Today’s legal environment seems to lend itself better to general statements. There is still a place for specifics, of course, but no one is going to be able to think of everything that might go wrong.

5. Require employees to sign a statement such as “I have received and agree to be governed by the handbook” and keep the statement on file.

Such a signed record is extremely useful when an employee claims to have never heard or been told of a specific handbook provision. All the supervisor has to do is produce the signed card. Of course, some employees will claim that they haven’t read the handbook even if they signed the statement, but such a claim will not carry much weight.

It is not uncommon for administrators to decide to save paper and money by having a few copies of handbooks, instead of giving a copy to each employee. It is also not uncommon for those copies to disappear. I have had many persons tell me, “Well, we are supposed to have a handbook in the faculty room/ secretary’s/parish administrator’s office, but I have never seen it.” It is hard to hold persons to rules that they have never seen and have had no opportunity to see.

A common question is, “Can we just post the handbook on our Web site?”

The answer is, “Absolutely. Just be sure to collect a signed card from each employee indicating knowledge of where to access the handbook and an agreement to be bound by its provisions.”

6. Document, document, document, but be specific and sparse.

In the “olden” days, however one might define them, but at least a couple of decades ago, attorneys would often make comments such as, “Document everything”; “Keep extensive notes”; “If you didn’t write it down, it didn’t happen.”

Today, conventional wisdom suggests a more middle-of-the-road course. Document what is important, but keep to the facts. Don’t speculate on motivation or attitude. For example, one might write, “Mrs. Jones was 15 minutes late arriving at work today. This is the sixth instance of her being at least ten minutes late in the past two weeks.” That is a much better statement than, “Mrs. Jones is late again. She’s always late. She’s just lazy.” Another example might be,

“I spoke with Mr. Smith today on the subject of fidelity to church teaching. As I was passing by the youth group meeting, I heard him say, “Well, the church isn’t always right, you know. We will have women priests one day.” This is the second time in a month we have met about his statements on women’s ordination. See my notes of (date).

The statements referenced above are specific (exactly what happened), behaviorally oriented (not speculating on motive) and verifiable (someone else would have witnessed the same action or inaction). Avoiding the temptation to insert one’s opinion is important, as unsupported opinions, especially those that could appear personal rather than professional in nature, can result in claims of bias and other unfairness.

7. Statutory law binds Catholic institutions

While constitutional law does not bind private institutions, statutory law can and generally does. Federal law can bind Catholic institutions. One cannot avoid tax reporting laws, paying Social Security for employees, filing non-profit reports, and reporting child abuse on the grounds that “this is the Catholic Church; we can do what we want.” State laws can bind as well. For example, while there is still some disagreement as to whether the Americans with Disabilities Act binds religious institutions, virtually every state has a law that mirrors the ADA and binds religious institutions. Local laws can bind as well.

Perhaps the most important statutory considerations lie in the area of discrimination.

8. Do not discriminate on any basis but religion.

Federal discrimination law binds Catholic institutions. They cannot discriminate on the basis of race, color, national origin, sex (except in admission to single sex schools), disability, or age. Religious institutions are allowed to discriminate on the basis of religion (for example to hire only Catholics in a Catholic parish).

It is rare to find a Catholic school or parish accused of racial or national origin discrimination today. Sexual discrimination is sometimes alleged. Disability and age seem to be the most common allegations. A person with a disability does not have an absolute right to a position or to any accommodation needed or sought. The law states that an employer cannot discriminate against an otherwise qualified applicant with a disability if, with reasonable accommodation, he or she can meet the requirements of the position sought.

There is no obligation to hire anyone. The existence of a disability, if it can be reasonably accommodated, however, is not a legal reason for refusing to consider hiring someone. What is reasonable accommodation? A person might need a certain type of office chair due to a back injury or a computer that automatically enlarges type; these would be reasonable. It would probably not be reasonable for a blind person to expect that a parish would pay for Braille equipment or the cost of materials being translated into Braille or for a deaf person to demand that the parish pay for the services of a sign language interpreter. Financial exigency, if demonstrated, is always a reason not to provide a specific accommodation.

Age can be a veritable minefield. The baby boomers are aging, and most will work well past traditional retirement ages. Anyone over the age of 40 has a federally protected right against discrimination, and there are definitely more job applicants over 40 than under 40. Older persons generally bring more experience and qualify for larger salaries than do those under 40. I often say, only half facetiously, that I wouldn’t hire myself as a teacher in a Catholic high school today. With well over 30 years of experience and two earned doctorates, I would be at the top of anyone’s salary scale, plus I have no desire to take on many activities that I delighted in when I was younger: directing the class play, moderating the yearbook, etc. So, it is readily understandable that one may prefer a younger, less expensive employee, one who is perceived as having more energy. But making a statement such as, “Sorry, you are over qualified” or “I can get a kid out of college cheaper” can open the door to charges of discrimination.

9. Watch what you say. It may well be used against you.

Administrators and managers do not have the luxury of speaking “off the cuff” or sharing confidences with other employees, particularly subordinates. The person who appears very loyal today may turn against you tomorrow, and you may never know why. So, it pays to be cautious. The only person who absolutely cannot repeat what you say is the priest who hears your confession. Anyone else can choose to repeat it or may be ordered to repeat it by a court. So, err on the side of caution. This caution is especially true where e-mail communications are concerned.

Follow the one-hour rule. Wait at least one hour and re-read what you have written in an e-mail before sending it. Always ask yourself, “Could someone reading this e-mail read something other than what I intend?” One can write in haste, compose e-mails in the heat of the moment, but one should hit the “save as draft” button rather than the “send” button in times of anger, annoyance, or uncertainty.

10. Just because you can do it doesn’t mean you should do it.

Far too often this author has been asked, “Can I legally do this?” The “this” could be: firing or not renewing an employee; adopting a rule that will propel some persons into leaving; telling a 30-year employee that in five months, he or she will be unemployed; or eliminating a position when one knows that one is going to change the job title, add a few different responsibilities and hire someone else.

Asking the question, “Can I legally do this?” does not go far enough for those who lead parishes and institutions that claim to minister in Jesus’ name. Yes, of course, we must “render unto Caesar” what is Caesar’s under the law, but we must also do what the gospel demands. So, the more appropriate question for one who claims to be a disciple of Jesus is, “Given what the law allows and the gospel demands, what should I do?” or the question that is often put forth today, “What would Jesus do?” Jesus obeyed civil law, but first, he obeyed God’s law. So should we.

Sister Mary Angela Shaughnessy, SCN, is a Sister of Charity of Nazareth who has taught at all levels from elementary through graduate school. She holds doctorates in law and in educational administration and is the author of more than thirty texts. Her research centers on the law as it affects Catholic education and church ministry. She founded and is executive director of the Education Law Institute, currently sponsored by St. Catharine College in Springfield, Ky., where she also serves as general legal counsel and professor of education.