4 Legal Risks Churches Are Underprepared to Face
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This is not something anyone in ministry wants to think about.
Which is exactly why I’m sharing it.
Every so often, a church we are serving finds itself facing a totally unexpected legal challenge.
A property dispute—a municipality trying to strip the church of tax exempt status or a theater trying to deny a church the opportunity to lease its facilities for worship services.
An employment matter gone wrong—someone claims discrimination or wrongful termination.
A child abuse claim—the very worst one of all. My friends at The Church Lawyers have a saying: If the church were a bank, the children’s area would be the vault. We have to do absolutely everything within our power to protect kids.
As you can imagine, these are nightmare situations. And more often than not, I find that church leaders are ignorant of the areas of the law that most pertain to them, both the protections and limitations the law creates.
So, I invited attorneys Steven Goodspeed and Dustin Gaines from The Church Lawyers to give us a crash course on the four legal risks they think all church leaders need to be aware of and how to take the appropriate measures to protect your ministry.
You will very likely have some next steps to take after listening to this one.
u003cstrongu003eThe 2-adult volunteer rule for protecting kids and teens needs a big update in 2019. Here's why. u003c/strongu003e Click To Tweet u003cstrongu003eIf the church were a bank, the children's area would be the vault. We have to do absolutely everything within our power to protect kids. via @churchlawyersu003c/strongu003e Click To TweetIn this conversation, we discussed:
- The #1 reason churches have been sued in 9 out of the last 10 years
- Why a phone book size policy and procedures manual for your children’s ministry is actually counterproductive and could leave you liable in an abuse case
- The 2-adult rule for protecting kids and teens, and why it needs a big update in 2019
- The simple volunteer screening tactic that is just as important as background checks, but far more likely to be skipped
- The ways the law actually protects churches against discrimination claims, but that only works for you if you are aware of your rights
- The for-profit language The Church Lawyers commonly find in churches’ employment documents that can actually create unnecessary challenges for you
Leader Conversation Guide
Want to take this conversation back to a staff or senior leadership team meeting? Here are some sample questions and strategies to help you navigate the conversation:
- When is the last time we reviewed our bylaws? Have we had legal counsel properly review them? Does anything need to change?
- Is our children’s and student volunteer screening and training process sufficient? Did anything from this episode reveal blind spots we have had?
- What do we need to do to institute or update our 2-adult policy for volunteers serving with children and students?
Share Your Thoughts and Questions on Social Media
We use #unstuckchurch on Twitter, and we start a real-time conversation each Wednesday morning when the episode drops. You can follow me @tonymorganlive and The Unstuck Group @unstuckgroup. If Facebook is where you spend your time, I’m there, too.
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Transcript
Sean: 00:02 Welcome to the Unstuck Church Podcast. My name is Sean Bublitz, and each week our team is having a conversation about getting churches unstuck. Do you know the top reason that churches have been sued nine out of the last 10 years? Are you confident that your employment agreements are written in a way that protects your church? Did you know that you don’t actually own your architectural plans? Well, today on the podcast, Tony’s talking with Steven Goodspeed and Dustin Gaines from the church lawyers. You’ll hear a conversation about some common risks churches are exposed to and how to protect your church. Let’s join the conversation with Tony and the church lawyers.
Tony: 00:42 So I’m looking forward to the conversation today. I have Steven and Dustin here with The Church Lawyers and they are helping churches really address opportunities to protect the church and help the church continue to have a thriving health and opportunity to reach more people for Jesus, but they’re helping us in some areas where churches sometimes leave themselves unprotected and today we’re actually going to talk about four legal risks for churches. Guys, it’s good to have you with me today for the conversation. Looking forward to the discussion today.
Steven and Dustin: 01:12 We are grateful Tony. Thank you so much. Glad to be here.
Tony: 01:15 So the first area that I wanted to talk about is how we can be protecting our children in our churches. And I know this is an area of risk for churches. So tell me, tell me first of all some some of why this is critical for the churches today in today’s context, but also what are some key next steps churches can be taking in this area?
Steven: 01:35 Well, unfortunately this is continuing to be a problem year over year, over a year and it’s an area that we see in our practice and the churches are a high trust environment and relying on volunteers and people can get stretched thin and unfortunately procedures can be not properly followed and people can be in a hurry and all those things are understandable. It’s just that this is many years in a row now were child abuse claims are one of the leading problems that churches face and protecting children, you know, is just critically important for our gospel witness and the community. And we partner with our churches to do everything we can to help them protect children, and it’s important to understand that, you know, one of the first things that you want to do is have established policies and procedures in place for employees and volunteers, but understand that adopting a phone book size, you know, manual of procedures and policies isn’t in your best interests and it will be one of the first items that a plaintiff’s attorney will put forward in front of a jury or a judge to establish, you know, what were the reasonable standards of care.
Steven: 02:48 And so it’s important to have proper procedures and policies, but it is critically important that you’re able and that you do follow those policies and procedures because they will certainly be used against you in an increasingly hostile, you know, legal environments. I know, you know, we won’t get into all of the different kinds of roles. I know the two adult rule is, is becoming more widely known out there. It’s important to have two adults, present with children in classrooms and, or bathroom breaks and that kind of thing. But one of the things we’ve had to change in our practice in the last three years or so is that it is, important to have a two adult rule for online texting and social media contact with children and we are increasingly seeing that as something that’s being necessary because it’s, it’s you, that one on one contact is just not a good idea.
Steven: 03:41 It doesn’t protect our volunteers or employees at all. And so that’s, that’s a proper social media policy needs to sort of take that into account. And so that’s, that’s kind of some of the first steps. Screening employees and volunteers always important to do that, but practically speaking in our practice I want your listeners to be aware that it is important for these child sensitive positions that you ask the proper questions and that you do a proper background check certainly, but you also need to call and check references if possible. And it should be possible for all of your children and childcare workers. It’s important to establish that you’ve done that due diligence more than just doing a background check, which is necessary. But it’s not sufficient to do a background check. You need to do a little bit more than that to establish a reasonable standard of care. And Dustin, do you have any extra thoughts?
Dustin: 04:37 But no Steven’s right. Nine out of the last 10 years, child abuse lawsuits against churches was the number one reason that churches were sued. So a super important area to make sure that you’re not cutting any corners and just conceptually as well. It’s important to understand, you know, churches themselves are entities, they don’t abuse kids, but they have volunteers and they have employees. So when a church is brought into court in a lawsuit on child abuse, which again, nine out of 10 of the last years they’re brought in, how did you select that volunteer? How did you screen that volunteer? Did you interview them? Did you ask them the questions? Did you do a background check? How comprehensive of a background check was it? Like Steven mentioned, did you call the references would have taken you two minutes to pick up the phone and call a reference. That would have revealed that this was a child abuser that you were putting in there with your kids. How did you train them? Did you have any warning signs? Were they retained as a volunteer after those warning signs were there? So those are all the things that churches should be thinking through and should be following as best as they can.
Tony: 05:46 I appreciated it when Emily and I connected with our new church just within the last several months and were engaging in ministry. If anybody should have gotten a pass on a background check and reference checks, you would think it’d be Tony Morgan. I’m a pastor, I’ve written books on Church Ministry and so on, but I appreciated the fact that they went through their same process with us just like they would with anybody else and did all the reference calls and things like that. You’ll be glad to know. I checked out though, so, I did make it on the. Yeah, great job. Alright. The second area I wanted to focus on a second area of risk for churches. It has to do with property disputes. Can you elaborate on that a little bit?
Steven: 06:33 So this is the topic that lends itself probably least to sort of an abbreviated treatment, but it’s important for your listeners to be aware of the religious land use and institutionalized persons act. We call it ALUIPA in the legal trade here and that parts. It’s not important to remember the name or anything else, but just understand that the basic thrust of the law is that no government shall impose or implement a land use regulation in a manner that imposes a substantial burden on their religious exercise of a person including a religious assembly or institution. Unless the government can demonstrate that the burden on that person assembly similar institution is basically necessary. It’s their preference of government interests and is the least restrictive means available. Basic takeaway is that, we have rights and we have these, this legislation and our practice has had to utilize this on behalf of churches who are being denied access to theaters and different places of assembly, especially in some inner cities and our coastal areas have a different legal environment than in some other parts of United States.
Steven: 07:43 And we’ve had to utilize that act and just being aware of that. And although this isn’t necessarily a property dispute situation, it’s important to just be aware that if you’ve got a building campaign or construction and finance going on, that the architectural plans that are featured in there, you don’t own the rights to those legal lean. And so if a distributor rises in the future, those things can get expensive. Or if you have to switch construction groups or something like that. Just understand the default rule is despite what you may feel about this situation, those architectural plans aren’t owned by you and it’s a need. We can help, you know, our experienced legal counsel can help negotiate access to those plans and use of them even after the building’s been developed and that can help avoid disputes later on related to construction issues and things like that. You won’t have to pay to have access to those plans later. Dustin you have?
Dustin: 08:41 Yeah. The two main, Steven mentioned the RLUIPA legislation, where that comes into effect. A lot of the times I get to help with the litigation here at the firm. What happens is, there’ll be a church that will want to expand or it might be a brand new church start and it wants to have its ministry, you know, down on the town square and when they go to get their zoning and their permitting and approval for that, the government will deny it because it’ll say that it’s not zoned for an assembly like a church, but you’ll have four or five doors down. You might have the local theater or you might have something where people do the exact same thing. They come in, they sit down, they listen to something and they leave. And what that piece of legislation protects, it stops the government from being able to single out churches and stop them from being able to start and being able to do the exact same things that would be done in multiple other places.
Dustin: 09:34 So even though it’s called religious land use and institutionalized persons, you know, the institutionalized persons are the inmates we focus here on the religious land use aspect of it. And then the other big one is property tax exemptions, you know, nobody likes to pay property taxes. And what we’re finding, especially in our litigation practices, that municipalities are being very aggressive to try to remove tax exempt status from churches for varieties of reasons. They’re not using all of the land that’s there in Ohio. The different municipalities, they all send investigators out to scope out the churches and they’ll apportion, you know, they’ll see a part of the field is overgrown and then they’ll try to revoke that percentage and you know, we’re experienced and were able to help with that and to work in conjunction with local council when necessary. So honored to be able to help. But those are the biggest areas that come across our desks here with land use.
Tony: 10:34 We were at The Unstuck Group working with a church in New Jersey several years ago and it all does, it comes down to taxes and I understand the constraints that local governments have to, I mean, I used to be in local government and I know it’s a challenge to continue to provide services with limited resources financially to do that. And as a result of that, a lot of communities, I think you are right are trying to be more aggressive about the property that could be a business for commercial use or industrial use in taxes being paid. And because of that, they’re wanting to limit the churches expansion in these areas. And what I have found is many times local governments in the small communities, again, that’s usually volunteers serving in counsel roles and they’re making decisions which they believe are right for their community to protect the tax base. But many times they’re unaware of legislation like you’ve outlined. And as a result of that, that’s where we really need folks like you at the church lawyers to come in and help protect the rights set that churches have. So a third area of risk I wanted to talk about today has to do with personal injury. And so, can you talk about some of the issues that you see related to churches and how this is an area that churches need to make sure they’re protected as well?
Dustin: 12:00 Yeah. The place where we would start with that is with the churches general liability insurance. You know, insurance is a great thing to have and a rule of thumb for a church, no matter what it sizes, you know, nowadays insurance coverage is affordable and you can adjust the limits that are there. We recommend, you know, to have as much coverage as you can afford. And you know, general liability, will cover things like claims of abuse. If somebody is on the property and they slip and fall on the doormat that a volunteer didn’t put down correctly on the way in or if it’s a wet floor or if you have a work day and somebody falls off a ladder, those are all real things that we’ve dealt with here throughout the last several months. But you just want to make sure that your coverage is there, that it’s intact.
Dustin: 12:43 You want to make sure that you can afford the deductible and make sure your insurance is there. But then another area is to look at the waivers that are being used. If it’s a youth activity, you want to make sure that there are waivers that will go through what the activity is going to be if there’s driving involved it outlines and there’s just good communication and there’s informed knowledge there on behalf of the reader as far as what the risks might be with whatever activity is there. And you know, the big thing with waivers is that the student pastor, the children’s pastor, when everybody goes to camp, that they’re actually using them. And one of the things that we do quite a bit is we’re able to review those waivers and it doesn’t take us long and we’re able to be a help to churches with that.
Tony: 13:29 Blaming the youth pastors again, always, always happens. All right, well the final area I wanted to hit, and honestly this is where The Unstuck Group gets the most questions. It’s around employment matters matters and I’m glad that we have a strategic partner like The Church Lawyers to help us in this area and to encourage churches to take some next steps. But can you highlight for, for us some of the areas that we need to be concerned about when it comes to employment matters for churches?
Steven: 14:02 Sure. Our church clients, you know, and even starting with the posting of a job and an employment application, we want you to be careful that you haven’t utilized a generalist in human resources or someone that’s not aware of the ability of the church to discriminate in favor of its religion. And it’s, we too often we’ll see a employment application or something that says we won’t discriminate, you know, and in, in any case, you know, and just put the standard sort of for profit business language in there and that is not good to have in there. It’s, it’s important that you signal that you are a religious organization and a church and that you do reserve the right to explicitly discriminate in favor of your, of your religious beliefs. And we are always in favor of using general employment agreements for non-executive staff.
Steven: 14:56 These are a primary risk mitigation tool for churches because the ones that we utilize, for instance, it reaffirms at-will nature of employment. So just because it’s a contract doesn’t mean it’s not also at-will. It still has the at-will aspect, it has confidentiality provisions. It also has the work for hire doctrine. If they create something, you know, it belongs to the church. And, and that can be, those things can be recalibrated as necessary depending on the church’s DNA and its views on some of those issues. But the final thing that it provides to is Christian arbitration and mediation and these clauses properly constructed will keep a church out of the secular court system for employment matters and that’s critically important for, you know, it’s biblical reasons to try to stay out of the secular court, but there’s prudential and practical reasons to try to get a stay on favorable ground and where the Bible can even be used, you know, to examine and justify employment decisions and things that couldn’t happen in a secular court. And so, you know, that’s, that’s some of the things that come to mind right off the bat. And there’s of course a host of other risk mitigation tools as well.
Tony: 16:06 Dustin, before you jump in, for those of us that don’t have that HR legal background, you mentioned at-will, elationship with an employee. Can you elaborate a little bit more about what that’s about and why that’s so important for that church has preserved that relationship?
Steven: 16:21 Yes. In most all states, the default rule is that someone is an at-will employee of the organization like the church and that means they can be terminated for no cause or good cause. And so, you know, there doesn’t have to be a process that’s followed. You can’t have bad cause still. That’s, you know, I can’t make stuff up against someone or whatever, but you can, as long as you preserve the no cause or good cause someone can be removed at any time. And, and especially if someone’s in a ministerial position, there’s a judicial abstention doctrine that basically says that judges won’t hear employment disputes involving ministers because they’re not for the time being, they’re not in the business of telling churches who their staff and ministers are going to be. And so, it’s just important to preserve that, but sometimes people think you can’t have a contract and it still being at-will situation. And that’s just not, that’s not true.
Tony: 17:19 Yeah. Dustin, you are going to dive in with some other areas regarding employment.
Dustin: 17:23 Yeah. And really they encompass everything we’ve we’ve talked about. It’s, so important to make sure with all of these matters that the churches organizational documents are in order and when I say organizational documents, that would be the articles of incorporation here in Texas. It’s called a certificate of formation, whatever it’s called in your state. That’s the document that’s filed to incorporate the church as a nonprofit there in the state. Bylaws are extremely important as well. That’s where. And with what Steven was saying, on the discrimination issues, churches are allowed to discriminate so long as it’s a faith-based discrimination and to show how it was faith- based they’re going to look to your statement of faith that’s there, so you want to make sure that you have a statement of faith that’s clear, has scriptural citation to it and that you’re able to go back to to when you’re carrying out your hiring and firing and really anything that you’re doing, those organizational documents are critical.
Tony: 18:23 That’s great. Steven, anything else you want to add?
Steven: 18:25 Well, I know one of the things we’re seeing in our practice is for, for new clients and especially we review a host of documents including insurance policies, which is not fun, but we’ve gotten very quick at sort of finding where we, where we need to look and
Tony: 18:40 Can I have you review my insurance policies to because I hate doing it.
Steven: 18:44 I’m telling you it will help you go right to sleep. It’s just not fun. But it’s important. We, what we’ve seen is the exclusions are that are being put in have changed a lot. We’re starting to see exclusions and it’s not easy to find this for worker misclassification and some of the policies are flat not covering that. And what that means is if you’ve got someone classified as an independent contractor or volunteer improperly, you know, they should have been an employee that if they get injured or otherwise have a claim, your insurance isn’t gonna cover that that’s just going to be your tithes and offerings that are going to cover that. And if it goes over a period of years, it can become very expensive as you can imagine. And so just properly classifying the employees and we have tools, some worksheets and stuff to help churches document a good faith determination of their workers and employees and contractors and trying to make sure that in order because we’re starting to see insurance companies step away from wanting to cover that and we’re seeing states aggressively go after organizations because they want the employment taxes that sometimes aren’t being paid to contractors and that kind of thing.
Tony: 19:52 So you’ve mentioned your work in Texas and Ohio, but really The Church Lawyers you’re helping churches across the country. Is that correct?
Steven: 20:00 We are a national law firm and blessed to have clients coast to coast and if ever we need to, we partner with local and we’ve just been very blessed to represent churches all over the United States and even some abroad. So it’s a very fulfilling practice and not a lot of attorneys get to say that, but we’re really blessed to do what we do and I’m very passionate about it.
Tony: 20:23 Well, I really appreciate you joining us today for the conversation. And did you notice I was on my best behavior? I didn’t share my best lawyer jokes. Did you notice that? I held off on that today.
Steven: 20:33 I’m telling you, if a lawyer has his hands in his own pocket, you can tell it’s cold outside.
Tony: 20:40 There you go. All right guys. Thank you again for joining us for today’s conversation. God bless.
Sean: 20:47 Well, thanks for joining us today. If you’d like to learn more about the church lawyers, you can visit them at thechurchlawyers.com. For more on this topic, check out our show notes at theunstuckgroup.com/episode79. If you’re enjoying this podcast, we would love it if you’d consider leaving us a review on itunes
