By David Middlebrook and Wendi Hodges
Thanks to the “Employment At Will Doctrine,” employers have historically been granted broad latitude in the area of hiring and firing employees. Under the Employment At Will Doctrine an employer has the right to fire an employee at any time with or without notice, and with or without cause.
Presently, the doctrine is still a viable legal doctrine, but it has been weakened over the years by numerous court decisions, federal and state laws and regulations and employment contracts. So while churches must strive to comply with all of these enforced employment rules and regulations, how can they protect their religious beliefs, teachings, morals and values?
An employer may always discharge an employee for good cause, even if an employment contract provides for a definite term of employment. Good cause for discharging an employee is defined as the employee’s failure to perform the duties in the scope of employment that a person of ordinary prudence would have done under the same or similar circumstances.
An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer‑employee relationship. The standard for measuring an employee’s job performance is whether the employee performed the duties involved “substantially” or “reasonably well,” rather than whether the employee achieved specific results, unless the employment agreement required specific results.
Employees may sue
However, sometimes ex-employees will sue their former employer (i.e. the church) if they do not agree with the church’s position or reasoning for terminating their employment. If an employee, particularly a pastor, is terminated for a moral failure, and then that terminated employee brings suit against the church for wrongful termination, then the courts will usually apply what is known as the “ministerial exception.”
This exception generally prohibits the civil courts from resolving employment disputes between churches and their ministers because those disputes often involve questions of religious doctrine (which the courts will not touch). However, it is important to note that the ministerial exception does not apply when the employee in question is one whose duties are primarily secular (for example, the church secretary). So, what can a church do to protect itself in this area, allowing themselves to terminate an individual who may be living in direct contradiction to the moral values and teachings of the organization?
One possibility would be to include a morals clause in the employment agreements of all employees that allows for termination of the employee if the employee engages in morally offensive conduct or does something to damage the reputation of the employer.
These sorts of provisions are common in certain industries, such as entertainment and even sports (particularly where actors or athletes may have a tendency to engage in activities that, if brought to the public’s attention, could harm the reputations of their employers). Take, for example, the recent events involving actor
Charlie Sheen. Warner Brothers Television released portions of Sheen’s contract, particularly the language of a “moral turpitude clause” that, they argued, allowed them the option to treat his actions as a breach of contract.
What’s moral turpitude?
What, you may ask, is moral turpitude? Moral turpitude is a legal concept in the United States that refers to “conduct that is considered contrary to community standards of justice, honesty or good morals.” The case law concerning moral turpitude suggests that, like indecency laws, it will be judged region by region, such that what reaches the level of moral turpitude in Georgia may not reach that level in California.
There does appear to be some consistency in the decisions though. For one, most courts have found that a felony reaches the level of moral turpitude. This is because a felony is a serious crime against society and fits well into the definition. Other than a felony, the most common action found to reach the level of moral turpitude is a wrong action that includes fraud or deceit. Generally, a misdemeanor does not reach the level of moral turpitude. However, when combined with deceit, it does.
Churches can include such provisions in their own standard employment agreements, though it would be appropriate to take such a provision a step farther. Rather than requiring an occurrence of a felony, a church could include a provision allowing for termination of the employment simply if the employee does not live in accordance with the church’s accepted standards of living.
A sample clause that could be included into the church’s standard employment agreement form could be something along the lines of the following:
As an employee of the church, employee must understand that s/he is a part of a Christian church and that his/her employment is a God-ordained vocation. In this regard, employee must fully support and live consistently and in accordance with any Statement of Faith and Christian standards of living as may be set forth in the church’s employee handbook or bylaws, by such directives as may be issued from church leadership, and most importantly by biblical standards.
By including such a provision in the employment agreements of all of the church’s employees, the church will (1) make sure that all employees are informed up front that they are subject to dismissal for engaging in behavior in violation of the church’s moral teachings, (2) obtain the employees acknowledgment that they understand that they are employees of a church and therefore subject to higher standards, and (3) help to protect itself from lawsuits brought by employees dismissed for moral failings.
It is our experience that the employees of churches are generally upstanding, good-hearted individuals who operate with the best of intentions and in accordance with the teachings of the Bible. But we all know the old saying that “the road to Hell is paved with good intentions,” and moral failures do happen. Just make sure that your church is prepared to deal with such failures when or if they occur.
David Middlebrook is a partner and Wendi L. Hodges is an attorney of Anthony and Middlebrook, The Church Law Group, Grapevine, TX. www.churchlawgroup.com