“
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.
How do we store this personal information?
Sommerville: The credit and criminal background reports need to be secure at all times. If it’ s an electronic version, it needs be passwordprotected. If it is a paper report, it must be kept in a locked file cabinet with a limited number of keys.
You must securely destroy them, also. If it’ s on paper, it must be shredded. If it’ s an electronic version, it must be destroyed using Department of Defense wiping procedures, which means it’ s rewritten over many times. You can be fined or even do prison time if you do not maintain security over background checks.
How do we prepare for terminating an employee?
Sommerville: Document the problems contemporaneously, in writing. You’ re leaving the church exposed if you’ re not doing this. Churches are known for their grace, and I applaud that, except for when it comes to employment law. Don’ t worry about hurting their feelings; grace still extends to them in the faith practices, but it doesn’ t extend to them as an employee when you’ re dealing with issues.
How should a termination conversation occur?
Sommerville: Decide when to terminate employees on your own timetable, and not on that employee’ s timetable. You never want to do it on a Friday, because then it gives them the weekend to stew, and they can’ t do anything about their circumstances. Mondays, Tuesdays and Wednesdays are much better times to terminate.
I prefer earlier in the day, rather than late in the day, because everybody is worrying about it during the day. You might as well call them in when they first get there.
Do not allow them to control the conversation. Bring them in with a witness that you’ ve created so there are at least two people present on behalf of the church. Say,“ This meeting is to let you know that you are being terminated.”
While this meeting is occurring, instruct the IT people to change passwords, and secure keys and possessions of the church that the employee has.
Should we provide severance pay?
Sommerville: Severance is a good idea, especially because in most states, churches are not part of the state unemployment system. So, once you terminate a person, they might not be eligible to draw unemployment.
Many lawyers think that getting a release at the same time former employees receive the severance is a good idea. That way, they’ re releasing the church from any liability.
If the employee refuses to sign the release, then you know you have a problem and you can start dealing with that issue and figure out what causes of action that employee might be trying to assert.
What determines whether someone is‘ exempt’ or‘ nonexempt’?
Sommerville: In any job description, you should put whether or not the position qualifies as exempt or not. In order to be exempt, the employee must be paid $ 455 per week. So, if you have an employee who is making less than $ 455 per week, they cannot be exempt.
An exempt employee cannot perform nonexempt duties more than 20 percent of their work time. If you have a position that is a mixture of exempt activities and nonexempt activities, most of the time they are going to end up being treated as nonexempt because of the presence of their nonexempt duties.
What positions are exempt from overtime?
Sommerville: The only exemptions from overtime are the executive, administrative, professional, and computer professional. The executive exemption is someone who supervises two or more full-time employees and makes important decisions regarding the organization. The administrative exemption is for someone who oversees a particular area and / or a significant segment of the church, and makes decisions on behalf of the church regarding significant items. A professional would be a position that requires a college degree to do their tasks.
What happens if we dock an employee’ s pay?
Sommerville: Docking an exempt employee’ s salary( for disciplinary reasons) can convert them to nonexempt. You can only dock exempt employees’ salary in one-day increments. However, you can require them to use paid time off in increments less than one day— this doesn’ t violate anything.
Many times, we find churches want to dock somebody who is an exempt employee because they were late or because they were out for half a day tending to some personal business. You can’ t really do that. This would come into play after an employee has already used up all their paid time off.
How do we pay overtime?
Sommerville: Overtime on all hours over 40 within a seven-day work period is what you have to pay. In California, it’ s all work over eight hours within a 24-hour period.
Work time is when the employee works or must standby for work. So, one of the issues that we talk about here is if a nonexempt employee has to be on standby for work, then you must pay them for that standby time.
How do time sheets need to be kept?
Sommerville: You have to keep the time sheets for all of your nonexempt employees. That includes the time when they signed in and signed out. It doesn’ t have to be electronic; but, it needs to be something where you have required them to keep those time sheets every day that they work.
You must keep these detailed time records for two years after the close of the year. You can be fined up to $ 5,000 for having inadequate work records. That would be $ 5,000 per employee per week.
What mistake in managing employees do places of worship commonly make?
Sommerville: Most churches make the mistake of making administrative assistants and pastors exempt. After analyzing these cases for over 25 years, I haven’ t found one yet that met the criteria to be an exempt administrative person or an exempt executive person because they derive their authority from their boss. They don’ t derive their authority from their own position.
Also, an intern is always a nonexempt employee unless they fit within the ministerial exemption with all the employment laws.
— Reporting by Joyce Guzowski
This Q & A is brought to you in partnership with Church Mutual Insurance Company in Merrill, Wisc.
30 CHURCH EXECUTIVE | NOV / DEC 2017