In 2012, the U.S. Supreme Court confirmed the existence and applicability of the ministerial exception in employment discrimination cases. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012).  After conducting an exhaustive analysis of the history of separation of church and state including its origin in the first sentence of the Magna Carta, its merger during the reign of King Henry VIII, and its re-separation during the founding of this country, the Court concluded that the ministerial exemption is a critical safeguard against governmental interference in religious matters.

At its core, the ministerial exemption is an outgrowth of the First Amendment protections and creates a carve-out from anti-discrimination laws for personnel decisions made by a religious entity involving its clergy.  In Hosanna-Tabor, the Court made clear that the ministerial exemption applies to anti-discrimination laws.  However, the Court explicitly declined to entertain whether the ministerial exemption would apply in other types of suits, such as employees alleging breach of contract or tortious conduct by their religious employers.  This also raises the question of whether clergy members may bring suit for wage and hour violations.

While the Fair Labor Standards Act (“FLSA”) itself is silent as to whether a ministerial exemption exists under wage and hour law, the guidelines promulgated by the Labor Department’s Wage and Hour Administrator state that “persons such as . . . ministers, deacons, and other members of religious orders who serve pursuant to their religious obligations in the schools . . . and other institutions operated by their church or religious order shall not be considered to be ‘employees.’” Field Operations Handbook, Wage and Hour Division, U.S. Dep’t of Labor, § 10b03 (1967).  The Fourth Circuit Court of Appeals has applied the ministerial exemption in the FLSA context. See Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 369 F.3d 797 (4th Cir. 2004) (en banc).  The Fourth Circuit believes that clergy do not fall within the definition of “employee” under the FLSA and therefore are not subject to its requirements.  However, the Supreme Court has not ruled on whether the ministerial exemption extends to the wage and hour context.

Despite the potential application of the ministerial exemption to a religious entity’s clergy, there is nothing that precludes an employer-employee relationship between a religious organization and persons who perform non-clergy work for the organization.  For example, a church may operate an establishment to print books, magazines, or other publications and employ regular staff who does this work as a means of livelihood.  In those instances, there is an employer-employee relationship, which would trigger the obligations to pay minimum wage and overtime.

Takeaway: Under federal law, individuals performing minister-like work might not be subject to the requirements of the FLSA.  However, in an abundance of caution it may be the safe route to ensure that such clergy fall within another of the FLSA’s exemptions (i.e executive, administrative, learned professional) to avoid potential liability in light of the Supreme Court’s express reservation regarding the scope of the ministerial exemption to other types of employment related suits.