Q: How Might Our Ministry Be Liable For the Acts of an Independent Contractor? 

A: Your ministry is responsible for the actions of any person or organization to which it delegates authority.


When a ministry hires an independent contractor or an “agent,”—someone to perform work on behalf of the ministry—the ministry may be held liable for certain acts of its agent that cause harm to others. 

Generally, agency liability refers to the legal responsibility that an organization, known as the principal, may have for the harmful actions of an agent, such as an independent contractor. Agency liability requirements include everything from the creation of the relationship, consent between the principal and agent, and overall oversight. 

This form of liability is typically limited: it is only recognized under specific conditions in many jurisdictions, making it a less frequent basis for legal claims by plaintiffs. 

Negligent selection & negligent retention

Ministries are more likely to face liability for negligent selection of a particular contractor. Generally, negligent selection shifts the focus from the actions of the contractor to the organization itself due to the organization’s lack of due diligence in the hiring process. Ministries could be accused of not properly checking the credentials, skill level, or competence of contractors prior to retaining their services.

When successful, negligent selection bypasses the agency liability requirements by holding the ministry responsible only for its decision to hire the contractor rather than for the specific acts of the contractor.

Ministries may be accused of not properly checking out the credentials, skill level, or competence of a contractor prior to retaining their services. This is known as negligent selection.

A final legal principle is negligent retention, which deals with what happens after an employee has been hired and is already working for the employer. Negligent retention arises when an organization knew, or should have known, that an employee was unqualified to be in the job position when the action in question occurred. When successful, it holds the employer responsible for retaining an employee despite being aware of their potential risk or hazard.

Here's a quick way to remember the difference: Negligent selection pertains to pre-employment actions (the hiring process), while negligent retention focuses on post-employment actions (employee retention). Both concepts address an employer’s duty to safeguard against harm caused by their employees.

It’s also another reason to make sure that you correctly classify workers as either an employee or independent contractor. You can learn more about how to make the determination in Use Caution When Classifying Workers for Tax Purposes.

Talk with Your Attorney

Negligent selection and negligent retention are both legal theories that ministries should seriously consider and discuss with a locally licensed attorney.

Most insurance policies exclude coverage for intentional and malicious acts. A ministry may face a lawsuit alleging negligent selection and retention of contractors or employees. This is often an attempt to collect compensation for damages that would otherwise be difficult to collect from the independent contractor who actually caused the injury or damage.

Ministries can significantly limit their liability associated with independent contractors by ensuring that a well-drafted, written agreement is entered into with the contractor. This Sample Independent Contractor Agreement from Brotherhood Mutual can help your ministry and a locally licensed attorney get started.

In addition, a qualified attorney should either draft or carefully review all such contracts to ensure that the ministry's interests are protected, and that the liability for contractor errors rests with the contractor rather than with the ministry. 

Legal AssistSM is a free service offered by Brotherhood Mutual.* It offers guidance on complicated questions related to ministry activity, employment law, contract wording, and more.

Recommended Resources

*Important information: Brotherhood Mutual is pleased to provide Legal Assist as a complimentary resource. The services we offer through Legal Assist are intended to provide general legal information to our current and prospective policyholders.

The information we provide is intended to be helpful, but it does not constitute legal advice and is not a substitute for the advice from a licensed attorney in your area. Accordingly, no attorney/client relationship is created through this process, and no legal advice will be provided. We strongly encourage you to regularly consult with a local attorney as part of your risk management program.

2024 Brotherhood Mutual

2024 Brotherhood Mutual