DOL Says Ministerial Exception Applies to FLSA Claims

by John T. Melcon

In Opinion Letter FLSA2021-2, issued on January 8, 2021, the U.S. Department of Labor (DOL) confirmed that the so-called “ministerial exception” applies to the wage-and-hour requirements of the Fair Labor Standards Act (FLSA).

Ordinarily, the FLSA requires that employers pay their covered employees a minimum wage for each hour worked, as well as an overtime premium when an employee works more than 40 hours in a week, and exempts certain executive, administrative, and professional employees. The “ministerial exception” is a constitutional doctrine arising from the First Amendment that stops courts from interfering in certain employment disputes involving churches and other religious institutions. See previous post here. According to the Supreme Court, the exception protects a religious institution’s “autonomy with respect to internal management decisions that are essential to the institution’s central mission,” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020).

The DOL’s new opinion letter addresses a request from a church-controlled daycare and preschool. The school had asked whether its teachers were exempt from the FLSA’s wage-and-hour requirements, assuming the teachers were “ministers” within the scope of the exception. The DOL wrote that, yes, assuming the teachers fell within the exception, “the school may pay them on a salary basis that would not otherwise comport with the FLSA.”

In the letter, the DOL added that “there is no checklist” for determining whether an employee qualifies as a “minister” for purposes of the exception and noted that an employee need not be ordained or have a particular title to qualify. The DOL explained that what matters most is “the employee’s role in carrying out the employer’s mission and conveying the employer’s message.”

Because the issues involved can be complex and fact-specific, religious employers with questions about FLSA compliance or the ministerial exception should consult with an attorney from Sherman & Howard’s experienced Religious Organizations team.