Many church leaders think that the “wage and hour” laws, and particularly overtime pay rules, do not apply to churches. That could not be further from the truth. Churches and church employees are NOT exempt from the “wage and hour” laws – and failure to obey such could result in substantial penalties to the church.
To get around these laws, many churches have “exempted” their employees from the law. However, on May 18, 2016, the U.S. Department of Labor issued new regulations concerning who is eligible to be exempted from the overtime provisions of the Fair Labor Standards Act (FLSA). These new regulations could have a substantial impact on churches and other non-profit entities.
Before reviewing the new regulations, it is important to understand the foundation of the Fair Labor Standards Act. The FLSA requires that workers be paid the federal minimum wage (or a higher wage if the local jurisdiction or state has mandated such) for the first 40 hours worked in a regular work week. Further, for any hours worked passed 40 hours in a regular work week, the FLSA requires that most employees be compensated at time and a half of their regular hourly wage.
To be exempt from this “time and a half” overtime pay rule, the employee has to be classified as an executive, administrative, or professional employee – often called the “white collar” exemptions. Each category of exempt employees is defined specifically under the FLSA. However, not only do you have to meet the definition for an executive, administrative, or professional employee, but previously you had to be paid a salary of at least $455 a week ($23,660 for a full-year worker). Under the new regulation, the minimum salary threshold to be an exempt worker more than doubles to $913 a week ($47,476 for a full-year worker).
For example, assume that a church has an employee that they have designated as being exempt under the Fair Labor Standards Act as an “executive” because the person supervises more than two people, her position is primarily managerial, and she has genuine input into the job status (hiring, firing, promotion, etc.) of the employees she supervises. This person has been making $40,000 a year and averages working 50 hours a week at the church. Since the new regulations do not go into effect until December 1, 2016, the church is currently in full compliance with the law. However, after December 1, this person, even though they remain an “executive” and can be paid a salary, must be paid “time and a half” for any hours worked over 40 hours in a regular work week, simply because her annual base salary does not meet the new minimum annual salary of $47,476.
With the new rules, it is important to remember the following:
- An employee, whether classified by the church as exempt or not, can be paid a salary and still be subject to the new overtime rules.
- Even a worker that meets the criteria of being designated an executive, administrative, or professional employee must be paid overtime (time and a half) if they are compensated at less than $913 a week after December 1, 2016.
- Overtime for this purpose is considered to be any hours worked in excess of 40 hours in a regular work week.
While the new regulations are extensive and literally go on for hundreds of pages, the Department of Labor put out a summary of the impact of these rules on non-profits. In a more succinct three-page Fact Sheet on the new regulations, it is noted that non-profits have several ways to comply with the rules after December 1:
- Simply raise salaries above the overtime threshold of $47,476 per year.
- Pay overtime to those below the new threshold for hours worked in excess of 40 hours during the week.
- Evaluate and realign employees’ workload to eliminate overtime, or
- Adjust employees’ base pay downward and pay overtime.
The major item not addressed in all these comments by the Department of Labor is the applicability of the new regulations to ministers. In other words, if a minister works more than 40 hours in a week and does not make more than $47,476 in taxable income in a year, will a church have to pay the minister time and a half?
Currently, there is no clear answer. While ministers are not statutorily exempt from FLSA requirements, several courts over the years have found that clergy are exempt under the “ministerial exemption” – in other words, ministers performing religious functions are excluded from the definition of employees under the FLSA. Further, the Department of Labor in a 2005 opinion letter seemed to recognize this exemption. Even in light of the historical “ministerial exemption” found in the court decisions and in previous Department of Labor opinions, the Fact Sheet for non-profits on the new regulations clearly says that “neither the FLSA nor the Department’s regulations provide an exemption from overtime requirements for non-profit organizations.” Therefore, while we anticipate that ministers will not be covered by these new regulations, there is currently no definitive guidance regarding ministers.
Although there is a question about ministers being covered under the new regulations, there seems to be no question about other employees of a church being covered under the new overtime rules. However, should you have questions about the applicability of these rules to your employees, it is recommended that you check with a qualified employment attorney and seek professional advice regarding your particular situation immediately.
Church of God Benefits Board, Inc. 