Church Executive CHURCH EXECUTIVE NOV-DEC 2017 DIGITAL | Page 29

A problem that churches often have is, the person that’s to receive the
complaint of harassment is male. Females have a difficult time reporting
this to males. So, one of the things I strongly suggest is that you have
alternative individuals available to receive the harassment complaints,
and at least one of those people needs to be a female. You also need to have
alternatives other than the senior pastor, because I’ve dealt with cases
where the harasser was the senior pastor.
Secondly, I suggest that you require the employees to produce their
complaint in writing so that it’s not a changing story. Then, you investigate
it and take appropriate action based on the findings of the investigation.
The most severe action is termination. In cases where it is unclear whether
harassment took place, some preventative training should be provided.
What is ‘ministerial exclusion’?
Sommerville: This is when none of the employment laws apply —
except for sexual harassment — to ministers. So, part of your job as a
church is defining who is a minister.
This is confusing because we’re talking about employment and labor
laws, and many people are used to applying the definition from the IRS
to award a housing allowance and to exclude them from payroll taxes.
The Department of Labor rules and the court cases that come out with
the minister exclusion do not require any form of a ministerial credential.
So, you can have people who are performing duties of ministry that are
considered ministers for employment law purposes, but not ministers for
tax purposes. Evaluate your p ositions, and determine whether they are
integral to the practice of faith, to determine who is a minister. Identifying
whether minister exclusion applies should be present in a job description.
How can we maintain effective hiring practices?
Sommerville: The best hiring practices are always those that focus on
the job description. Every question, every part of your interview process,
your explanation of the position — all should begin with that initial job
description. Then, you’re going to review the applications and compare
them with that job description to determine who’s the best match.
What are we not allowed to ask in a job interview?
Sommerville: Age — The law protects those over the age of 40 from
discrimination. So, you cannot ask how old someone is.
Place of birth — You cannot ask where someone was born, because
there are some individuals that might be born outside of the United
States. Therefore, you would be involved in discrimination on the basis of
national origin.
Race and/or nationality — You can’t ask any questions about race or
nationality. During the interview process, you can’t even ask whether they
are citizens. You can ask only if they are authorized to work and satisfy
those requirements.
Criminal record — You cannot ask about arrest records and criminal
records. Minority groups have been accused and convicted of crimes more
often than Caucasians, so it could be a form of unlawful discrimination
based on race or nationality. Also, an arrest record is not a conviction.
Marital status — You cannot ask any questions about marital status.
Gender — You cannot ask any questions to determine whether someone
is a particular gender, according to the court. You cannot have positions
that you only fill with males or females.
Sexual orientation — In certain states, you may not ask anything about
sexual orientation because, again, that is related to their gender, as the
courts have ruled. Some state laws prohibit you asking questions about
sexual orientation or sexual perception.
Children and childcare — You cannot ask anything about children or
childcare. What you’re permitted to ask is, “Do you see any impediment in
you working 8:00 to 5:00 every day?” because your main concern is if they
can show up and do the job.
History of drug/alcohol abuse — You cannot ask about a history of alcohol
or drug abuse because that could lead into an Americans With Disabilities
Act discrimination. What someone has a history of is not relevant to
whether they can perform the job functions.
Hobbies/sports activities — Sometimes you should not be asking
about hobbies or sports activities because many of those discussions
can lead to unlawful information such as marital status, children, or
political activity.
Disabilities — You cannot ask about any disabilities or physical
limitations because the Americans with Disabilities Act protects against
that. You can ask if the candidate feels confident that they can perform the
duties listed.
Ask open-ended questions, and be consistent in the questions asked for
each candidate.
When should a background check be performed?
Sommerville: It’s OK to do a criminal background check for
positions that are exposed to children, youth or the elderly — those who
are most vulnerable in our churches. There are certain crimes that would
automatically preclude them from being offered a position dealing with
these groups, such as sexual assault of a child.
With other convictions, you need to look at the background and
consider how long ago the conviction was. For example, if someone had
a possession-of-marijuana conviction when they were 18 and they’re 50
today, and they haven’t had any further criminal activity, that would not
automatically prevent them from serving children, youth or elderly. You
have to go through and make an individual valuation in these cases.
It they’re involved in finances or accounting, it’s important to run a
credit background check.
LISTEN TO THE WEBINAR!
“Best employee practices for houses of worship”
Topics include:
• Employee harassment
• A harassment policy
• Best hiring practices
• Terminating employees
• Compliance with minimum wage/overtime rules
Available now at www.churchexecutive.com/webinars
If something on a candidate’s background check or credit report
excludes them from the position, how is this communicated?
Sommerville: You are required to give a copy to the applicant and
give them a copy of a summary of their rights. The company that conducts
the background check will give you that summary of their rights. Then,
they get notice of the adverse decision.
You must provide them with an opportunity to explain criminal
records or a low credit score. This is very important because I have seen
reports that up to 65 percent of criminal background checks contain
serious material errors.
You also need to make sure that the applicant is the person who is
represented in the report. If the applicant has a common name, many
times, you’ll have five or 10 different individuals that have a criminal
background that show up with the same name. You need to give them
an opportunity to say, “No, this wasn’t me,” or explain the circumstances
surrounding anything listed in their reports. If they are hired, keep this
explanation in their file.
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