The factors used to evaluate ministerial exception claims did not become clear until 2012, when the Supreme Court decided EEOC v. Hosanna-Tabor Evangelical Lutheran Church, however, there are still many potential issues to be resolved.

In that case involving a parochial school teacher who spent most of her work time on non-religious duties, the Court identified the factors in finding that the teacher in a religious school fit a ministerial exception to Title VII:

• That she was formally commissioned or ordained as a Lutheran “minister,”
• That she did perform “important religious functions” in addition to her teaching of lay subjects in the classroom
• That her non-religious duties, however extensive, did not make a difference.

The Court wrote that the ministerial exception question “is not one that can be resolved by a stopwatch. The amount of time an employee spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed and the other considerations discussed above.”

The Court’s decision eliminates the patchwork of tests used by federal and state courts and broadens the exception beyond the limits set by many courts, but still leaves some questions. For example, how should courts weigh among these factors? Does the weight given to each factor depend on the nature of the claim? Does the test apply to FLSA claims at all? What types of institutions may use the exception? These answers have yet to be litigated by the Supreme Court.

Obviously, determining which positions are “ministerial” depends on the specific facts and the particular court interpreting those facts. However, religious entities do have some guidance. First, organizations must ensure that their governing/founding documents, policies, handbooks and other key documents demonstrate that they do have a clear religious purpose and that they adhere to them. Second, organizations should look to the Supreme Court’s factors to analyze whether a particular position might qualify for a ministerial exception to the FLSA. Some positions, such as a Catholic priest or other congregational leader, likely fall squarely within the ministerial exception. Others, such as lay administrators, maintenance workers, office staff, or secular instructors, are a closer call. For instance, the Ninth Circuit has held that lay teachers at a church-owned school who neither attended to others’ religious needs nor instructed students in religious doctrine did not fulfill the function of “ministers” for purposes of exemptions from anti-discrimination laws.

Where there is uncertainty, religious entities should tread carefully before treating employees as exempt from the FLSA or state wage and hour laws. The ministerial exception to the FLSA is anything but a one-size-fits-all designation.

Like other employers, religious entities need to carefully examine and maintain job descriptions and monitor actual job functions to ensure that they match. You can expect courts to continue to construe this exception narrowly. Articulating a clear, reasonable and individualized basis for excluding someone from FLSA or state wage and hour laws will be the best defense to a wage and hour action challenging a ministerial exception.