In the past, I have had several cases in which I have represented members of the Church of Jesus Christ of Latter-Day Saints who were employed by the church. In a couple instances, I represented individuals who had filed lawsuits against the church. The lawsuits were settled amicably.
In the instances when I have represented individuals who work for the church – on matters not related directly to the church, but on matters that concern my clients’ employment – my clients and I have found it difficult gaining the cooperation of church employees who have known information helpful to my clients’ positions. I didn’t know why. Now I do.
A current client of mine tried to get several persons to assist him in his disability case. They held information that was relevant to his disability claim and how his disabilities had interfered with his employment.
Basically, he learned that the church has a policy of “discouraging” its employees from engaging in “protected” activities. Those activities would include discussing matters related to their wages and other circumstances governed by the Federal Labor Standards Act; providing information or testifying regarding any type of discrimination, sexual harassment or assault; discussing their workplace accidents, or discussing any retaliatory action committed against them.
Regarding this policy, here is what I wrote to the church:
Dear HR Director:
I am currently representing an employee who had worked for the Church of Jesus Christ of Latter-Day Saints for over 30 years. He left his employment after serving quite honorably, due to disabling health conditions.
Although he would have much rather continued working and thereby retiring as an able-bodied employee, his health conditions do not permit that. He, therefore, is pursuing his entitlement to Social Security and Long-Term disability benefits.
Many individuals who find themselves in this situation rightfully need to be able to present the truth of their circumstances in the administrative proceedings that are afforded them. Sometimes it is absolutely critical that such individuals can call witnesses on their behalf. In so doing, it is necessary that they provide a fair portrayal of their work ethic, what job experience they had, and the effect that their disabling impairments have had upon them to decision-makers who know nothing about them. Sometimes the very best and most indispensable witnesses about their circumstances are those with whom they have worked during their careers. In this particular case, my client approached several of his co-workers to determine if they would be willing to provide testimony on his behalf. All of them indicated a willingness to do so until your HR department provided them with the HR policy. That policy states:
Church employees are discouraged from testifying at Social Security disability hearings, providing statements of support, or otherwise becoming involved in the legal actions of other employees.
A statement of support from a church employee might be perceived as a statement of support from the church.
Furthermore, employees may feel pressure to support an employee’s legal claim even if they do not agree with the claim. This could create hard feelings and distractions and could negatively affect church programs. Although church employers may discourage employees from providing a statement or testifying at a hearing, the organization can’t prevent an employee from writing a personal statement or testifying on the employee’s own time.
If an employee chooses to give a personal statement, the statement must not be written on church letterhead or on church equipment or during work hours. Further, supervisors and managers should not identify themselves as a church employee or discuss the requesting employee’s employment with the church. The statement must not give the impression that the supervisor or manager is speaking on behalf of the church in any way. The statement must be completely disassociated from church employment. (Exhibit A)
While some of the concerns expressed in your policy have merit, others do not. I would submit that the overall impact of your policy is misguided at best, if not in violation of state and federal law. It does so in two respects: First, your policy elevates the Church’s business concerns over its pastoral calling and responsibilities towards its employees, its Church members, and the community at large. Second, it has an impermissible chilling effect by interfering with an employees’ right to engage in protected activities, such as pursuing a legal or administrative right or providing testimony thereon, without actual, or fear of retaliation.
Employees perceive the Church – even in the employment setting – to have power over their Church affiliation, spiritual progression, and their economic livelihood. As a consequence, when the Church makes statements like “employees are discouraged from testifying at Social Security disability hearings, providing statements of support, or otherwise becoming involved in the legal actions of other employees,” your employees interpret this pronouncement to mean that the Church, as a policy, views individuals who seek disability benefits or pursue other legal matters and those who support them, through their truthful testimony or written statements, as miscreants and evildoers. It also is interpreted to mean that if employees provide testimony or “statements of support,” they are disobedient and unfaithful Church members, their eternal salvation is in jeopardy, and they may be subject to discipline or termination.
It is highly unfortunate and very displeasing that the Church would wield its power, influence, and pressure over its employees to inhibit them from providing truthful testimony regarding matters they may have knowledge about. Also, the Church’s concern that a “statement of support from a church employee might be perceived as a statement of support from the church,” can easily be ameliorated by simply instructing a church employee, who happens also to be a witness who has important information in an administrative or legal proceeding, to make it clear that he or she is not speaking on the Church’s behalf.
Your policy goes on to indicate that the Church is concerned that its, “employees may feel pressure to support an employee’s legal claim even if they do not agree with the claim. This could create hard feelings and distractions and could negatively affect Church programs.” It cannot be denied that whenever any coworker, business, or government solicits an individual to provide testimony or a written statement, the individual may indeed feel some “pressure” to testify on behalf of the individual or entity. However, the Church should not be oblivious that this “pressure” works both ways. The truth is, an individual is more likely to feel greater pressure from the entity or individual who has more power over them. Usually this is their employer, boss or the government.
Because of this dynamic, in such situations, since it is the Church that has more power over its employees than do co-workers, the Church should be more concerned about how its power and “pressure” is exerted in discouraging employees from testifying or providing a written statement. This scenario is more likely to “create hard feelings and distractions and could negatively affect church programs,” as it “discourages” its employees from providing testimony or a written statement, especially when the employee has a meritorious claim, and when he or she does not agree with the Church’s “legal claim [or position],” on a particular non-ecclesiastical legal issue.
Mind you, I am not talking about disagreements regarding the Church’s doctrine or teachings. I am merely addressing the reality that individuals working for the Church, just like individuals working for any entity, may have issues that arise in their lives – including accessing disability benefits – that may require testimony from their employer and coworkers. In some of those cases, because of humanity’s imperfections, including imperfect Church agents and supervisors, the Church’s position on an administrative or legal issue may simply be misguided or incorrect and it is improper for the Church, in any way, to dissuade its employees from providing truthful information.
The Church’s concern in such situations could simply be addressed by indicating to its employees that they should use their own judgment regarding whether to decline or agree to voluntarily testify or provide statements. When its employees are asked by any entity or individual to provide testimony or statements and agree to do so, the Church’s only concern should be to admonish its employees to acknowledge that they are not speaking on the Church’s behalf and to simply tell the truth about any matter they are asked to address. This comports with the Church’s often-stated policy that it teaches its members correct principles and that its members can thereby govern themselves, exercise their own agency, and make correct choices.
Please understand that when an individual is involved in a legal issue that requires the presentation of evidence through witnesses (while as a practical matter they certainly should take into consideration the sensibilities and concerns of organizations and individuals, and try to ameliorate those concerns), they cannot control what reactions those organizations or individuals may take when they request them to provide truthful testimony in their legal proceedings. Despite this, they still must, on occasion, request coworkers to provide truthful testimony.
It is refreshing that the Church acknowledges that it “can’t prevent an employee from writing a personal statement or testifying,” on another individual’s behalf. It is also appropriate that the Church instruct its employees that when they do so, they cannot claim to be speaking on the Church’s behalf, use Church letterhead or equipment, and must do so on their “own time.” Nonetheless, it is hoped that the Church will be sensitive to the fact that in Utah, there are no administrative agencies or courts that operate outside of business hours. It should, therefore, affirmatively state that it will not retaliate in any manner against an employee who, either under subpoena or taking personal time, testifies at a legal or administrative tribunal.
Nevertheless, the Church’s instruction that, when making a statement, the Church employees must “completely disassociate[] from Church employment,” and that they not “discuss the requesting employee’s employment with the church,” is ill-conceived, impracticable, and improper. The reason this is the case is that, often, when a Church employee is seeking benefits or testifying as to matters related to their employment, the circumstances of their employment are often relevant. For instance, employees seeking disability benefits (who work for the Deseret Industries) necessarily need to discuss that such employment is Church affiliated and that sometimes it is not a competitive employment setting. Under Social Security regulations, such employment is legally defined as a “subsidized work setting.”
There are numerous reasons and examples I could give you of why testimony regarding the employer’s name and the type of employment are relevant. Therefore, in those cases in which the name of the employer and the nature of the employment are relevant, if the former or current Church employees as litigants or as witnesses “disassociated” their knowledge of the employee’s work from the entity employing them, and the type of work the employee actually performed, it would render their testimony meaningless.
I would respectfully urge the Church to understand that those who seek Social Security or long-term disability benefits have an entitlement to such benefits and have an interest in and the right to due process. Such due process includes a presentation of the truth of their work ethic, their working conditions, and the effect their disability has had on their ability to work to whatever tribunal is considering their condition and their qualifications for benefits.
This is as true as if the Church was defending itself in any type of an administrative or legal action. In such a case, the Church would most likely want its employees to provide, on its behalf, truthful, voluntary, and unconstrained testimony without concern that someone may be upset with them and thereby retaliate against them by jeopardizing their membership in the Church or their employment. It is also most likely that the Church would frown upon individuals or entities that would attempt to “discourage” individuals from testifying on behalf of the Church when that testimony supports the Church’s legal or administrative position on a disputed matter.
To be evenhanded and considerate of its own and its employees’ rights, I would recommend a modification of your policy regarding your employees testifying at any administrative or legal proceeding. That policy should respectfully be amended as follows:
From time to time, individuals, business, and governmental entities may request Church employees to provide information or to testify in administrative or legal proceedings. Such proceedings could include testifying at Social Security disability hearings, providing statements of support, or otherwise becoming involved in the legal actions of other employees. The Church maintains a neutral position on its employees’ involvement in such matters. It does not, in any way, discourage nor encourage such participation.
Church employees should exercise their own agency to determine when, and to what extent, to voluntarily participate in such proceedings, and Church employees should comply with any legal obligations to do so. Church employees should further exercise their own agency and discretion to ensure that their will is not overborne to either decline or agree to participate in any such proceedings, or to “shade,” “exaggerate,” or “minimize,” their statement or testimony in such a way that would render it untruthful.
If Church employees are required by law, or agree to voluntarily participate in any administrative or legal proceeding, they should affirmatively indicate that they are not speaking on the Church’s behalf, they should not use Church letterhead or equipment to create any materials or communications in conjunction with those proceedings, and they should participate on their own time and not during work hours, unless duly excused.
If a Church employee is served with a subpoena to testify at an administrative or legal proceeding, the employee should promptly notify management so that appropriate arrangements can be made for their absence from work.
The Church will not retaliate in any manner against any employee who, either under subpoena or taking personal time, testifies at a legal or administrative tribunal or provides a statement to be used in conjunction therewith.
A neutral policy, such as this, would preserve the dignity and interest of the Church, its employees, its members, and the community at large.
I respectfully request a response to my letter and invite a dialogue in which an appropriate policy can be implemented that does not, in any way, dissuade or inhibit Church employees from engaging in protected activities and from providing truthful testimony, or an audio, video, or written statement for use in any legal or administrative matter.
Not by way of a threat of any kind, but to put you on notice of my intentions, if I receive no response and an amicable and private resolution of this issue cannot be achieved, I intend on publicizing this issue and thereby attempting to achieve a change of this policy through other means.
Sincerely,
ARROW LEGAL SOLUTIONS, PC
_____________________
Loren M. Lambert
Attorney at Law
After I sent this letter, Jon Waddoups, from the law firm of Kirton and McConkie, communicated with me via telephone and an email on behalf of the church, regarding my letter. Although he was very cordial, professional, and diplomatic – as I have experienced in all the attorneys with whom I’ve dealt at this firm – he informed me the church has no interest in clarifying or changing its policy that discourages its employees from providing information when they have truthful information about legal matters that arise with its employees.
To be clear, I’m not challenging or impugning the churches’ leadership in issues regarding church administration and its ecclesiastical mission. I simply believe that as an employer, it must act responsibly. Individuals in its human resource department appear to be more concerned about needlessly protecting the church, as an employer, at the expense of the truth. The church should be a champion of its employees' rights, without any impediment – direct or indirect – to provide truthful statements and testimony in matters involving its employees.
If you have been so diligent as to read up to this point, please let me know if you, or anyone you’ve known about, has ever had a difficult time obtaining truthful information from the church employees.
Loren M. Lambert, © May 21, 2016
In the instances when I have represented individuals who work for the church – on matters not related directly to the church, but on matters that concern my clients’ employment – my clients and I have found it difficult gaining the cooperation of church employees who have known information helpful to my clients’ positions. I didn’t know why. Now I do.
A current client of mine tried to get several persons to assist him in his disability case. They held information that was relevant to his disability claim and how his disabilities had interfered with his employment.
Basically, he learned that the church has a policy of “discouraging” its employees from engaging in “protected” activities. Those activities would include discussing matters related to their wages and other circumstances governed by the Federal Labor Standards Act; providing information or testifying regarding any type of discrimination, sexual harassment or assault; discussing their workplace accidents, or discussing any retaliatory action committed against them.
Regarding this policy, here is what I wrote to the church:
Dear HR Director:
I am currently representing an employee who had worked for the Church of Jesus Christ of Latter-Day Saints for over 30 years. He left his employment after serving quite honorably, due to disabling health conditions.
Although he would have much rather continued working and thereby retiring as an able-bodied employee, his health conditions do not permit that. He, therefore, is pursuing his entitlement to Social Security and Long-Term disability benefits.
Many individuals who find themselves in this situation rightfully need to be able to present the truth of their circumstances in the administrative proceedings that are afforded them. Sometimes it is absolutely critical that such individuals can call witnesses on their behalf. In so doing, it is necessary that they provide a fair portrayal of their work ethic, what job experience they had, and the effect that their disabling impairments have had upon them to decision-makers who know nothing about them. Sometimes the very best and most indispensable witnesses about their circumstances are those with whom they have worked during their careers. In this particular case, my client approached several of his co-workers to determine if they would be willing to provide testimony on his behalf. All of them indicated a willingness to do so until your HR department provided them with the HR policy. That policy states:
Church employees are discouraged from testifying at Social Security disability hearings, providing statements of support, or otherwise becoming involved in the legal actions of other employees.
A statement of support from a church employee might be perceived as a statement of support from the church.
Furthermore, employees may feel pressure to support an employee’s legal claim even if they do not agree with the claim. This could create hard feelings and distractions and could negatively affect church programs. Although church employers may discourage employees from providing a statement or testifying at a hearing, the organization can’t prevent an employee from writing a personal statement or testifying on the employee’s own time.
If an employee chooses to give a personal statement, the statement must not be written on church letterhead or on church equipment or during work hours. Further, supervisors and managers should not identify themselves as a church employee or discuss the requesting employee’s employment with the church. The statement must not give the impression that the supervisor or manager is speaking on behalf of the church in any way. The statement must be completely disassociated from church employment. (Exhibit A)
While some of the concerns expressed in your policy have merit, others do not. I would submit that the overall impact of your policy is misguided at best, if not in violation of state and federal law. It does so in two respects: First, your policy elevates the Church’s business concerns over its pastoral calling and responsibilities towards its employees, its Church members, and the community at large. Second, it has an impermissible chilling effect by interfering with an employees’ right to engage in protected activities, such as pursuing a legal or administrative right or providing testimony thereon, without actual, or fear of retaliation.
Employees perceive the Church – even in the employment setting – to have power over their Church affiliation, spiritual progression, and their economic livelihood. As a consequence, when the Church makes statements like “employees are discouraged from testifying at Social Security disability hearings, providing statements of support, or otherwise becoming involved in the legal actions of other employees,” your employees interpret this pronouncement to mean that the Church, as a policy, views individuals who seek disability benefits or pursue other legal matters and those who support them, through their truthful testimony or written statements, as miscreants and evildoers. It also is interpreted to mean that if employees provide testimony or “statements of support,” they are disobedient and unfaithful Church members, their eternal salvation is in jeopardy, and they may be subject to discipline or termination.
It is highly unfortunate and very displeasing that the Church would wield its power, influence, and pressure over its employees to inhibit them from providing truthful testimony regarding matters they may have knowledge about. Also, the Church’s concern that a “statement of support from a church employee might be perceived as a statement of support from the church,” can easily be ameliorated by simply instructing a church employee, who happens also to be a witness who has important information in an administrative or legal proceeding, to make it clear that he or she is not speaking on the Church’s behalf.
Your policy goes on to indicate that the Church is concerned that its, “employees may feel pressure to support an employee’s legal claim even if they do not agree with the claim. This could create hard feelings and distractions and could negatively affect Church programs.” It cannot be denied that whenever any coworker, business, or government solicits an individual to provide testimony or a written statement, the individual may indeed feel some “pressure” to testify on behalf of the individual or entity. However, the Church should not be oblivious that this “pressure” works both ways. The truth is, an individual is more likely to feel greater pressure from the entity or individual who has more power over them. Usually this is their employer, boss or the government.
Because of this dynamic, in such situations, since it is the Church that has more power over its employees than do co-workers, the Church should be more concerned about how its power and “pressure” is exerted in discouraging employees from testifying or providing a written statement. This scenario is more likely to “create hard feelings and distractions and could negatively affect church programs,” as it “discourages” its employees from providing testimony or a written statement, especially when the employee has a meritorious claim, and when he or she does not agree with the Church’s “legal claim [or position],” on a particular non-ecclesiastical legal issue.
Mind you, I am not talking about disagreements regarding the Church’s doctrine or teachings. I am merely addressing the reality that individuals working for the Church, just like individuals working for any entity, may have issues that arise in their lives – including accessing disability benefits – that may require testimony from their employer and coworkers. In some of those cases, because of humanity’s imperfections, including imperfect Church agents and supervisors, the Church’s position on an administrative or legal issue may simply be misguided or incorrect and it is improper for the Church, in any way, to dissuade its employees from providing truthful information.
The Church’s concern in such situations could simply be addressed by indicating to its employees that they should use their own judgment regarding whether to decline or agree to voluntarily testify or provide statements. When its employees are asked by any entity or individual to provide testimony or statements and agree to do so, the Church’s only concern should be to admonish its employees to acknowledge that they are not speaking on the Church’s behalf and to simply tell the truth about any matter they are asked to address. This comports with the Church’s often-stated policy that it teaches its members correct principles and that its members can thereby govern themselves, exercise their own agency, and make correct choices.
Please understand that when an individual is involved in a legal issue that requires the presentation of evidence through witnesses (while as a practical matter they certainly should take into consideration the sensibilities and concerns of organizations and individuals, and try to ameliorate those concerns), they cannot control what reactions those organizations or individuals may take when they request them to provide truthful testimony in their legal proceedings. Despite this, they still must, on occasion, request coworkers to provide truthful testimony.
It is refreshing that the Church acknowledges that it “can’t prevent an employee from writing a personal statement or testifying,” on another individual’s behalf. It is also appropriate that the Church instruct its employees that when they do so, they cannot claim to be speaking on the Church’s behalf, use Church letterhead or equipment, and must do so on their “own time.” Nonetheless, it is hoped that the Church will be sensitive to the fact that in Utah, there are no administrative agencies or courts that operate outside of business hours. It should, therefore, affirmatively state that it will not retaliate in any manner against an employee who, either under subpoena or taking personal time, testifies at a legal or administrative tribunal.
Nevertheless, the Church’s instruction that, when making a statement, the Church employees must “completely disassociate[] from Church employment,” and that they not “discuss the requesting employee’s employment with the church,” is ill-conceived, impracticable, and improper. The reason this is the case is that, often, when a Church employee is seeking benefits or testifying as to matters related to their employment, the circumstances of their employment are often relevant. For instance, employees seeking disability benefits (who work for the Deseret Industries) necessarily need to discuss that such employment is Church affiliated and that sometimes it is not a competitive employment setting. Under Social Security regulations, such employment is legally defined as a “subsidized work setting.”
There are numerous reasons and examples I could give you of why testimony regarding the employer’s name and the type of employment are relevant. Therefore, in those cases in which the name of the employer and the nature of the employment are relevant, if the former or current Church employees as litigants or as witnesses “disassociated” their knowledge of the employee’s work from the entity employing them, and the type of work the employee actually performed, it would render their testimony meaningless.
I would respectfully urge the Church to understand that those who seek Social Security or long-term disability benefits have an entitlement to such benefits and have an interest in and the right to due process. Such due process includes a presentation of the truth of their work ethic, their working conditions, and the effect their disability has had on their ability to work to whatever tribunal is considering their condition and their qualifications for benefits.
This is as true as if the Church was defending itself in any type of an administrative or legal action. In such a case, the Church would most likely want its employees to provide, on its behalf, truthful, voluntary, and unconstrained testimony without concern that someone may be upset with them and thereby retaliate against them by jeopardizing their membership in the Church or their employment. It is also most likely that the Church would frown upon individuals or entities that would attempt to “discourage” individuals from testifying on behalf of the Church when that testimony supports the Church’s legal or administrative position on a disputed matter.
To be evenhanded and considerate of its own and its employees’ rights, I would recommend a modification of your policy regarding your employees testifying at any administrative or legal proceeding. That policy should respectfully be amended as follows:
From time to time, individuals, business, and governmental entities may request Church employees to provide information or to testify in administrative or legal proceedings. Such proceedings could include testifying at Social Security disability hearings, providing statements of support, or otherwise becoming involved in the legal actions of other employees. The Church maintains a neutral position on its employees’ involvement in such matters. It does not, in any way, discourage nor encourage such participation.
Church employees should exercise their own agency to determine when, and to what extent, to voluntarily participate in such proceedings, and Church employees should comply with any legal obligations to do so. Church employees should further exercise their own agency and discretion to ensure that their will is not overborne to either decline or agree to participate in any such proceedings, or to “shade,” “exaggerate,” or “minimize,” their statement or testimony in such a way that would render it untruthful.
If Church employees are required by law, or agree to voluntarily participate in any administrative or legal proceeding, they should affirmatively indicate that they are not speaking on the Church’s behalf, they should not use Church letterhead or equipment to create any materials or communications in conjunction with those proceedings, and they should participate on their own time and not during work hours, unless duly excused.
If a Church employee is served with a subpoena to testify at an administrative or legal proceeding, the employee should promptly notify management so that appropriate arrangements can be made for their absence from work.
The Church will not retaliate in any manner against any employee who, either under subpoena or taking personal time, testifies at a legal or administrative tribunal or provides a statement to be used in conjunction therewith.
A neutral policy, such as this, would preserve the dignity and interest of the Church, its employees, its members, and the community at large.
I respectfully request a response to my letter and invite a dialogue in which an appropriate policy can be implemented that does not, in any way, dissuade or inhibit Church employees from engaging in protected activities and from providing truthful testimony, or an audio, video, or written statement for use in any legal or administrative matter.
Not by way of a threat of any kind, but to put you on notice of my intentions, if I receive no response and an amicable and private resolution of this issue cannot be achieved, I intend on publicizing this issue and thereby attempting to achieve a change of this policy through other means.
Sincerely,
ARROW LEGAL SOLUTIONS, PC
_____________________
Loren M. Lambert
Attorney at Law
After I sent this letter, Jon Waddoups, from the law firm of Kirton and McConkie, communicated with me via telephone and an email on behalf of the church, regarding my letter. Although he was very cordial, professional, and diplomatic – as I have experienced in all the attorneys with whom I’ve dealt at this firm – he informed me the church has no interest in clarifying or changing its policy that discourages its employees from providing information when they have truthful information about legal matters that arise with its employees.
To be clear, I’m not challenging or impugning the churches’ leadership in issues regarding church administration and its ecclesiastical mission. I simply believe that as an employer, it must act responsibly. Individuals in its human resource department appear to be more concerned about needlessly protecting the church, as an employer, at the expense of the truth. The church should be a champion of its employees' rights, without any impediment – direct or indirect – to provide truthful statements and testimony in matters involving its employees.
If you have been so diligent as to read up to this point, please let me know if you, or anyone you’ve known about, has ever had a difficult time obtaining truthful information from the church employees.
Loren M. Lambert, © May 21, 2016
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