Hero Maker
Page 24
Is the Person an Employee?
One of the primary legal issues that arises in this area (and the focus of this appendix) is worker classification: when may an intern be classified purely as an unpaid intern rather than as an employee entitled to compensation? Failing to properly classify an intern can result in fines and can lead to litigation which would likely far exceed the cost of simply paying the intern. Since it is incumbent upon the employer to properly classify its interns, how do we evaluate who qualifies as an unpaid intern and who must be classified and compensated as an employee? A 1947 Supreme Court Case and subsequent guidance provided by the Department of Labor goes a long way toward answering this question.
In the case of Walling v. Portland Terminal Co., 330 U.S. 148 (1947), the Supreme Court evaluated the classification of several individuals who participated in a pre-employment training program that was a required precondition of employment. The Court held that during such training the individuals were not employees for purposes of the Fair Labor Standards Act (FLSA), and not entitled to compensation. In reaching that decision, the Court placed particular emphasis on several factual circumstances present, which the Department of Labor (DOL) later utilized in issuing a six-part test to determine whether an intern must be compensated.
When You Don’t Have to Pay
According to the DOL, if all of these criteria apply, “an employment relationship does not exist under the FLSA” and therefore the intern need not be paid if:
1. the internship, even though it includes actual operation of the facilities of the employer, is similar to training given in an educational environment;
2. the internship experience is for the benefit of the intern;
3. the intern does not displace regular employees but works under close supervision of existing staff;
4. the employer that provides the training derives no immediate advantage from the activities of the intern, and occasionally its operations may be impeded;
5. the intern is not necessarily entitled to a job at the conclusion of the internship; and
6. the employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
While this six-part test was originally developed and applied to for-profit entities, it remains helpful guidance for the nonprofit sector. In the same document in which it sets forth the six-factor test, the DOL also states that there is a recognized exception “for individuals who volunteer their time, freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to nonprofit organizations,” and that unpaid internships in such a circumstance are “generally permissible.”
When to Pay
Besides the six factors set out above which describe situations when an unpaid internship is appropriate, the DOL has also set forth examples of when an intern should be considered an employee for payment purposes—that is, when an intern is not really an intern. The presence of any of these factors, otherwise known as the “Unpaid Intern Prohibited Factors,” means that an intern should be classified as an employee if:
1. the employer uses the intern as a substitute for regular workers or as a supplement to its current workforce; or
2. but for the intern, the employer would have hired additional employees or asked its existing staff to work additional hours; or
3. the intern is engaged in the employer’s routine operations and/or the employer depends upon the intern’s work.
Under these factors, if your organization uses an intern for seasonal work, such as for summer camps or holiday services, they may be called an intern but likely should be paid at least minimum wage if they are being used to augment your current workforce or if they exist in lieu of hiring additional staff.
Must All Six Criteria Apply to My Situation?
While the DOL’s guidelines are helpful and should be considered by your church or ministry in establishing any unpaid internship or residency program, it is important to understand that sometimes it may not be necessary for all six of the above-referenced factors to be satisfied for a worker to be classified as an unpaid intern. In fact, in at least one case the six-factor test was eschewed entirely in favor of what was termed the “primary beneficiary test” (Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 [Second Circuit 2015]).
In that case, the Second Circuit opined that the six-factor test was “too rigid” and not applicable for analyzing internships at all workplaces. Instead the Court stated that “the proper question is whether the intern or the employer is the primary beneficiary of the relationship.” To make that determination, the Court set forth several nonexhaustive considerations that should be weighed, with no one factor being dispositive. Those considerations, some of which overlap the DOL’s six-factor test and which are aimed at determining the “economic reality” of the situation, are:
1. whether the intern and the employer clearly understand there is no expectation of compensation;
2. whether the internship involves training similar to that which would be given in an educational environment;
3. whether the intern receives academic credit for the internship;
4. whether the internship is conducted in a time frame corresponding to the academic calendar to allow the intern to fulfill their academic commitments;
5. whether the internship’s duration is limited to the time in which the internship provides the intern with beneficial learning;
6. whether the intern’s work complements rather than displaces the work of paid employees; and
7. whether the intern and the employer understand there is no entitlement to a full-time position at the conclusion of the internship.
How to Decide
Unfortunately, there is no bright-line legal rule on this issue that would provide a definitive answer to every situation. For this reason and because of the number of factors the DOL and courts say should be considered, it is easy for churches and ministries to suffer from “paralysis by analysis.” This need not be the case.
It is clear that, whether viewed through the lens of the DOL’s six-factor test or viewed through the analysis of various courts, the primary focus is on training and education: the internship must primarily be in furtherance of the education of the intern and for the intern’s benefit rather than the employer’s. Internships that are part of a formal academic experience, such as where the intern receives course credit from their educational institution, are generally considered appropriate unpaid internships by the DOL. This can be very helpful for those churches and ministries with college and seminary students serving as residents or interns, and for students whose degree program requires internship experience. In contrast, the more directly related an intern’s tasks are to those that might otherwise be performed by paid staff members, the more likely the intern will be considered an employee under the FLSA and entitled to compensation.
In addition, because of the fact-specific nature of the analysis required, we recommend that your church or ministry always seek legal counsel when developing an unpaid internship or residency program, who can assist your organization with appropriately structuring the program in furtherance of your organization’s purposes. At the Church Law Group, we regularly assist clients around the country with these issues, and it would be our honor to assist your organization.
The Church Law Group, a practice division of
Anthony & Middlebrook, P.C.
4501 Merlot Avenue
Grapevine, TX 76051
Phone: 972-444-8777
Email: churchlawgroup@amlawteam.com
Website: www.churchlawgroup.com
Acknowledgments
After writing a book titled Hero Maker and creating the HeroMakerBook.com website, it makes sense for Warren and me to acknowledge the people who were hero makers to us, building the platform upon which we get to stand.
First, I want to acknowledge my parents, Earl and Pat Ferguson. My dad was the first church planter role mode
l I had as a young kid. I remember helping him set up chairs in Blackhawk Elementary School before church started. He was a hero maker for me and continues to lead like that while in his seventies. My mom was the single greatest permission giver and gift activator in my life. She helped me believe I could be anything I dreamed I could be. Thanks, Mom and Dad.
And thank you to my wife, Sue, who was being a hero maker before I ever started talking about hero making. You are a hero maker at home, consistently sacrificing for our kids and me. You are a hero maker for your friends, doing the little things without notice that make a big difference. And I love how you have been a hero maker through Connections and small groups at Community Christian, developing and mentoring countless leaders. And thanks for your help on this book too! I love you a lot!
There are few better at hero making than my brother Jon Ferguson. He has partnered with me on so many new ventures, from D & J Lawn Care as kids to cofounding Community Christian Church and NewThing. Thank you, Jon, for caring more about the mission than about who gets the credit. You embody hero making.
Thank you to my friend and teammate in the four-to-ten mission, Todd Wilson. You have built more platforms for other leaders than anyone I know, and I have yet to see you step into the spotlight. Thanks for your willingness to make heroes out of so many of us. Your fruit is growing on the trees in many orchards! The Exponential team also deserves a special shout-out for creating conferences and resources to fuel a movement of multiplication.
Thanks especially to one of Todd’s many gifted team members, Lindy Lowry, for dozens of thoughtful and helpful editorial suggestions as she helped this book’s contents to fully align with the Exponential conference and publications.
And thank you to my longtime, amazing administrative assistant Pat Masek. The first question I most often get when I am teaching at a conference or meeting new people is, “Who is your assistant?” Then it’s followed by, “She is amazing!” More than anyone else, you kept this book moving forward and on course. Thanks for being so amazing!
Thanks too to Corissa Durst for going the extra mile on the outstanding graphics that appear throughout the book.
A heartfelt thanks to the people of Community Christian Church. You get it! You understand that the best way to help people find their way back to God is through a multiplication movement of new sites and churches. And I’ve seen so many of you embrace the idea of multiplication: mentoring others who in turn mentor others. I love being on this mission with you!
Throughout the book, I have featured my friends through our international church-planting network, NewThing, as outstanding examples. I am grateful to be partnered with so many hero makers who are passionate about the Jesus mission.
Thank you to what I’m calling the Becoming Level 5 think tank, which gave clarity to many of the concepts developed in this book. Participants are: Bill Couchenour, Dave Browning, Wade Burnett, Jeff Christopherson, Bill Easum, Tim Hawks, Daniel Im, Chris Lagerlof, Mike McDaniel, Ralph Moore, Dave Rhodes, Brian Sanders, Larry Walkemeyer, and Greg Wiens.
Thanks also to the many people who took time to meet with us to talk about specific material in the book or to review an early manuscript. They include: Eric Bramlett, Dave Dummitt, Jon Ferguson, Kep James, Greg Ligon, Keri Ladouceur, Doug Leddon, Skipp Machmer, Mike McDaniel, Troy McMahan, Tammy Melchien, Eric Metcalf, Patrick O’Connell, Jon Peacock, Ian Simkins, Ed Stetzer, Geoff Surratt, Jessie Vacca, Larry Walkemeyer, and Eddie Yoon.
Leadership Network, with its vision to foster innovation movements that activate the church to greater impact for the glory of God’s name, has had an incredible influence on both of us for many years. There are few ideas in this book that haven’t been in some way influenced by its approach of helping church teams move from ideas to implementation to impact. I’m proud to be on its board of directors, and Warren on its staff as their research director.
The Zondervan team, especially Ryan Pazdur, Jesse Hillman, Brian Phipps, Robin Schmitt, and Kyle Rohane, has given us pivotal feedback at many junctures and has always shown grace when we asked to incorporate a new idea or other adjustment into the book.
Finally, my coauthor and good friend Warren Bird enthusiastically echoes my words above—especially since he helped write them (!), as this book was truly a collaborative authorship.
Warren adds his gratitude to his wife and best friend, Michelle, who, like Warren, has been on the journey this book describes of moving toward greater spiritual reproduction and even multiplication. In fact, we tell a story about Michelle as an apprentice multiplier in chapter 1.
Most of all, Warren and I thank God for letting us play a part in challenging ourselves, and you as our readers, to multiply our efforts in ways that can exponentially increase the population of heaven. That’s the eternal difference we pray this book will make.
Notes
1. “Barry” is the compilation of two friends. All subsequent stories are about the individuals named and are told with their permission.
2. Actually, Todd quoted Dave Rhodes, who had said there needs to be “a shift in the hero story for the prime leader from being the hero to becoming the mentor who creates heroes that become mentors.” See Todd Wilson with Will Mancini, Dream Big, Plan Smart: Finding Your Pathway to Level Five Multiplication (Exponential, 2016), 55. This ebook is a free download at www.exponential.org.
3. Thanks to our friend Will Mancini for pointing out this pattern to us. Will is author of God Dreams (coauthored by Warren Bird) and Church Unique.
4. Bill Simmons, The Complete Book of Basketball (New York: Ballantine, 2009).
5. Ibid., 39. The narrative that follows is adapted from pages 38–41.
6. Ibid., 38–39.
7. Ibid., 51.
8. Ibid., 54.
9. Exponential has compiled lists of specific characteristics for each multiplication culture. To learn more, download a free copy of Becoming a Level 5 Multiplying Church at exponential.org.
10. Michael Slaughter with Warren Bird, Real Followers: Beyond Virtual Christianity (Nashville: Abingdon, 1999), 28.
11. David Sturt and Todd Nordstrom, “Are You Asking the Right Question?” Forbes (October 18, 2013), www.forbes.com/sites/davidsturt/2013/10/18/are-you-asking-the-right-question/#b73fdaa76c5d.
12. Ibid.
13. Alan Hirsch and Dave Ferguson, On the Verge: A Journey into the Apostolic Future of the Church, Exponential Series (Grand Rapids: Zondervan, 2011).
14. Calculations and terminology come from www.webmath.com with help from Dianne James Russell.
15. Personal email from Eddie Yoon to Dave Ferguson, August 13, 2017.
16. Todd Wilson and Dave Ferguson, Becoming a Level 5 Multiplying Church (Exponential, 2015), 31–32, analyzing Protestant churches. Free download at www.exponential.org. See also Todd Wilson, Multipliers: Leading beyond Addition (Exponential, 2017), also free download at www.exponential.org.
17. Matthew Philips, “Minority Rules: Why 10 Percent Is All You Need,” Freakonomics (July 28, 2011), http://freakonomics.com/2011/07/28/minority-rules-why-10-percent-is-all-you-need/.
18. Danny Iny, “Why Asking the Wrong Questions Could Be Disastrous,” Inc. (March 16, 2016), www.inc.com/replacemeplease1455908276.html.
19. See appendix 4 for these and other helpful free resources.
20. Sturt and Nordstrom, “Are You Asking the Right Question?”
21. These thoughts are inspired by Dann Spader’s writings, such as Discipling as Jesus Discipled, Four Chair Discipling, and Growing a Healthy Church.
22. Lyle Schaller and Warren Bird, Wisdom from Lyle E. Schaller: The Elder Statesman of Church Leadership (Nashville: Abingdon, 2012).
23. Both accolades are cited and sourced in Schaller and Bird, Wisdom, x.
24. Ralph Moore, Defeating Anxiety: Overcoming Fear before It Overwhelms You (Honolulu: Straight Street, 2013).
25. “Study Examines the State of Faith in Hawaii,” Hawaii Free Press (November 13, 2011), www.hawaiifreepress.com/Ar
ticlesMain/tabid/56/ID/5437/Study-Examines-the-State-of-Faith-in-Hawaii.aspx.
26. Quotes adapted from Derwin Gray, “Pro Football Was My God,” Christianity Today (March 3, 2014), www.christianitytoday.com/ct/2014/march/pro-football-was-my-god-derwin-gray.html.
27. Derwin Gray, The High Definition Leader: Building Multiethnic Churches in a Multiethnic World (Nashville: Nelson, 2015). See also www.derwinlgray.com/about/.
28. Kara Powell, Jake Mulder, and Brad Griffin, Growing Young: Six Essential Strategies to Help Young People Discover and Love Your Church (Grand Rapids: Baker, 2016).
29. Larry Walkemeyer, Flow: Unleashing a River of Multiplication in Your Church, City and World (Exponential, 2014). Free download at www.exponential.org.
30. Abigail Jones, “Murder Town USA (AKA Wilmington, Delaware),” Newsweek (December 19, 2014), www.newsweek.com/2014/12/19/wilmington-delaware-murder-crime-290232.html.
31. Acts 18:3. See also 1 Thess. 2:9; 2 Thess. 3:7–8; Acts 20:31–35; 1 Cor. 4:12. See “What Is a Tentmaker?” at www.worldwidetentmakers.com/education/what-is-a-tentmaker.
32. David R. Wheeler, “Higher Calling, Lower Wages: The Vanishing of the Middle-Class Clergy,” The Atlantic (June 27, 2014), www.theatlantic.com/business/archive/2014/07/higher-calling-lower-wages-the-collapse-of-the-middle-class-clergy/374786/.
33. Dave Ferguson, Jon Ferguson, and Eric Bramlett, The Big Idea: Aligning the Ministries of Your Church through Creative Collaboration (Grand Rapids: Zondervan, 2007).
34. www.thriveschool.info/worship-major.
35. www.highlandscollege.com.