The Top 10 Legal Issues Facing California Churches

As we prepare for our conference, featuring Richard Hammar, we thought you would be interested in this article published by Brotherhood Mutual.

Church legal expert Richard Hammar outlines issues you need to know about:

Every year, attorney Richard Hammar reviews about 12,000 legal cases involving religious organizations. He looks for trends affecting churches and offers suggestions on what ministries can do to better protect themselves from legal risks. The following list represents Hammar’s thoughts on the top legal issues facing churches today.

Issue #1: Negligent Selection of Youth Workers

The negligent selection of staff and volunteers who work with children continues to be a major concern for churches. At the very least, churches need to run all prospective workers’ names through the National Sex Offender Public Website, It’s free, requires no Social Security number, and includes a color photograph of each offender. However, this database only records sex-related offenses. It wouldn’t include other crimes, such as murder, theft, or kidnapping. To be even more careful in their selection process, churches should obtain references from past organizations where their candidate has worked with children and include a comprehensive criminal background check in their screening procedure.

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Issue #2: Registered Sex Offenders

Before deciding to allow a known sex offender to attend church services, churches should obtain a record of the person’s criminal convictions and understand the terms of his probation agreement. Once this information has been reviewed, if a church agrees to allow this person to attend church on a limited basis, it must create a strict attendance policy, signed by the offender.

At a minimum, the policy would stipulate:

  • No association with minors at church

  • No driving of minors

  • No minors in the home

  • A chaperone must accompany the offender from the time he arrives on church property to the time he leaves

  • A single violation of the agreement would result in termination of privileges.

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Issue #3: Same-Sex Marriages

Now that several states allow same-sex marriages, some pastors have asked whether they can be sued for choosing not to perform them. The answer is no. A California Supreme Court ruling states, “No religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”

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Issue #4: The Duty to Warn

Many pastors struggle with how much to say about a former employee’s conduct when asked for an employment reference. For example, the Catholic Archdiocese of Milwaukee was sued for failing to disclose the sexual molestation of boys by a priest subsequently employed by a parochial school in Kentucky. In this case, the Wisconsin Supreme Court ruled that employers are not legally obligated to warn all prospective employers of a former employee’s bad acts, even sexual misconduct. “Such a ruling would extend an employer’s obligation to warn indefinitely into the future to a sweeping category of persons, thereby requiring employers to warn nearly all potential future employers or victims,” the court ruled in 2008.

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Issue #5: Child Abuse Reporting

Child abuse reporting laws vary by state. Every state requires certain people to contact authorities when there’s a reasonable suspicion of child abuse. In 26 states, clergy are mandatory reporters. In 15 states, any person who suspects child abuse or neglect is required to report it. In nine states and the District of Columbia, clergy are mandatory reporters only if they work in certain roles, such as teacher, counselor, or childcare worker.

To further complicate things, clergy-penitent privilege applies in some states. That is, clergy may maintain the confidentiality of certain communications made during pastoral counseling. This privilege isn’t absolute, however, and the circumstances under which it’s allowed varies by state. It’s vital to know your state’s requirements for reporting child abuse.

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Issue #6: Church Security

Could a church be held liable if an armed gunman were to enter the sanctuary and begin shooting people? In determining premises liability, a court would look at the following four factors:

  • Has any criminal conduct previously occurred on or near the property?

  • How recently and how often have similar crimes occurred?

  • How similar was the crime to prior criminal conduct on the property?

  • What publicity was given to the past crimes to indicate that the landowner knew or should have known about them?

Most churches have no legal duty to hire security guards to protect against the threat of violence. Nonetheless, if a church wants to have a security force, it needs to hire qualified professionals. Churches could be held liable for negligent selection of security guards.

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Issue #7: Church Computer Policies

All churches need a computer policy that clearly describes authorized and unauthorized uses of church-provided computers and explains the consequences of unauthorized use. The policy must clearly authorize the employer to access, monitor, analyze, and inspect its computers at any time, with or without permission or advance notice. It should also state that employees have “no expectation of privacy” in their church-provided computer or its contents. This policy should be explained to all employees at the time of hiring, and all employees should sign a statement acknowledging that they understand and agree to the policy.

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Issue #8: Employment Liability: The Ministerial Exception

Most civil courts won’t get involved in employment disputes between churches and ministers, even if the minister isn’t ordained clergy. Courts have considered non-credentialed music ministers to be clergy for the purpose of the ministerial exception. This legal doctrine is rooted in the First Amendment guarantee of religious freedom.

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Issue #9: Discrimination Based on Morals or Religion

Federal law bans most types of employment discrimination. However, Title VII of the Civil Rights Act of 1964 allows churches to discriminate based on morals or religion, even in secular positions. In deciding whether a church has illegally discriminated against someone, courts will look at whether the church treats similar cases similarly, and who determines what type of conduct violates your church’s standards. To protect themselves, churches should have a policy clearly stating what type of conduct violates its standards.

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Issue #10: Automatic Excess Benefit Transactions

Churches who allow pastors to use church-owned vehicles, cell phones or other church assets for personal use need to report these fringe benefits as taxable income on the pastor’s W-2 forms. Otherwise, their pastor could face tax penalties of up to 225 percent for these automatic “excess benefit transactions.”

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