Volunteers are generally not considered employees within the meaning of wage and hour laws, but this does not mean they are exempt from anti-discrimination laws. In the US, federal courts are divided on whether a volunteer may be considered an employee within the meaning of the Americans with Disabilities Act (ADA) and/or Title VII of the Civil Rights Act of 1964. While some courts have held that volunteers are not employees for purposes of employment discrimination, others have found that if a volunteer opportunity is a clear pathway to employment or the organization gives preferential hiring to past volunteers, then the volunteer may fall within the statutes' coverage. Additionally, states like California, New York, and Oregon have extended anti-discrimination and workplace harassment protections to unpaid interns, volunteers, and apprenticeships.
What You'll Learn
Volunteers can sue for discrimination
In the US, Title VII of the Civil Rights Act of 1964 protects employees from discrimination in the workplace based on race, colour, religion, sex, and national origin. However, the definition of an employee as "who is employed by an employer" is somewhat circular and difficult to apply in certain cases.
Courts have adopted a list of factors to determine whether an individual qualifies as an employee under Title VII, including:
- The employer's control over when, where, and how the job is performed
- The level of skill required for the job
- The source of the tools used
- The location of the work
- The duration of the relationship between the parties
- Whether the employer has the right to assign additional projects
- The worker's discretion over when and how long to work
- The method of payment
- The worker's ability to hire and pay assistants
- Whether the work is part of the regular business of the employer
- Whether the employer is in business
- Employee benefits
- Tax treatment
These factors are assessed on a case-by-case basis and are not a definitive test. In practice, most Circuit Courts handling volunteer discrimination cases have applied another test, called the threshold remuneration test. This test first determines whether the volunteer received the equivalent of compensation in exchange for services rendered. If remuneration is found, only then will the court analyze the employment relationship under the common law agency test.
However, some Circuit Courts have rejected the threshold remuneration test. For example, in the Bryson v. Middlefield Volunteer Fire Department, Inc. case, the Sixth Circuit Court decided that a volunteer firefighter who had made claims of sexual harassment and retaliation could be considered an employee, regardless of whether she had been paid.
In another case, Volling v. Antioch Rescue Squad, members of a volunteer rescue squad sued two organizations for sexual harassment, discrimination, and retaliation under Title VII. The court examined the above factors and found that the volunteers were subject to the same workplace strictures and control as paid employees, thus qualifying them as employees who could bring suit under Title VII.
Therefore, while there is no clear-cut answer, volunteers may be able to sue for discrimination depending on the specific circumstances and the application of the above tests by the courts.
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Volunteers are protected by anti-discrimination laws
In the context of federal anti-discrimination or retaliation claims, the distinction between a volunteer and an employee is crucial. Federal courts disagree on when a "volunteer" may be considered an "employee" under the Americans with Disabilities Act (ADA) and/or Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees based on religion, national origin, race, color, and sex. However, volunteers who receive "significant remuneration," such as pay and benefits, as a result of their service or those who are on a clear pathway to employment may be considered employees and thus protected under these laws.
Courts have considered various factors when determining whether a volunteer qualifies as an employee, including the level of control exercised by the organization, the provision of benefits, the method of payment, and the duration of the relationship. For example, in the case of Volling v. Antioch Rescue Squad, the court determined that members of a volunteer rescue squad could sue for sexual harassment, discrimination, and retaliation under Title VII as they were subject to the control of the organization and qualified as employees.
Additionally, volunteers may have recourse under other statutes or common law claims, depending on the state. For instance, in Massachusetts, volunteers can bring discrimination actions under the Massachusetts Civil Rights Act, even if they are not covered under the state's anti-discrimination in employment statute.
To summarize, while volunteers may not always be explicitly protected by anti-discrimination laws, there are circumstances where they can be considered employees and thus afforded those protections. Volunteers who believe they have been discriminated against should seek legal advice to understand their rights and options.
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Volunteers are protected under Title VII
Federal courts are divided on this issue, with some holding that volunteers are not employees for the purposes of anti-discrimination laws, while others have found that they are. For example, in the 2011 case of Bryson v. Middlefield Volunteer Fire Department, Inc., the Sixth Circuit Court held that a volunteer firefighter who had made claims of sexual harassment and retaliation could be considered an employee and was therefore protected under Title VII, despite not being paid.
This case introduced uncertainty for both employers and volunteers, as it was not clear what protections their status may or may not afford them. A later case, Sister Michael Marie v. American Red Cross, provided some clarity. In this case, two Catholic nuns claimed they were terminated due to their religious beliefs. The Court applied the factors of the common law agency test, which include the employer's control over when, where, and how the job is performed, the level of skill required, the source of tools used, the duration of the relationship, the right to assign additional projects, worker discretion, method of payment, worker's ability to hire assistants, whether the work is part of the regular business, employee benefits, and tax treatment. The Court decided that the nuns were not under the control of an employer and were therefore volunteers, not employees, and thus not protected under Title VII.
The distinction between volunteers and employees is important because it determines whether individuals are protected by anti-discrimination laws. While volunteers may not always be considered employees, there are still situations where they may be entitled to protection under Title VII. For instance, if a volunteer opportunity is a clear pathway to employment or if the organization gives preferential hiring to past volunteers, this could bring the volunteer within the statutes' coverage. Additionally, if a volunteer offers services in exchange for training and employment certification, they may be considered an employee within the meaning of discrimination laws.
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Volunteers with disabilities are covered under the ADA
Volunteers are generally not considered employees and therefore are not covered by anti-discrimination laws. However, this is not always the case, and it depends on the specific circumstances and the state in which the volunteer work is carried out.
In the US, the Americans with Disabilities Act (ADA) covers volunteers with disabilities under certain conditions. Title I of the ADA states that only individuals with disabilities who meet the definition of "employee" are entitled to reasonable accommodations. Typically, a volunteer is not considered a protected employee under Title I because there is usually no employer-employee relationship. However, if a volunteer receives "significant remuneration" (such as pay and benefits) or if the volunteer work usually leads to employment, then they may be considered an employee and thus covered under Title I.
The application of Title III of the ADA to volunteers is less clear. Title III requires public accommodations, such as hotels, restaurants, and medical services, to provide accommodations for customers and patients to access their goods and services. Whether a volunteer program is considered a good or service under Title III is uncertain, as the DOJ has not specifically addressed this issue.
While the ADA's protection for volunteers with disabilities is not absolute, it is clear that providing reasonable accommodations for volunteers with disabilities can be beneficial for businesses and organizations.
In addition to the ADA, there have been court cases that have extended anti-discrimination protections to volunteers in certain situations. For example, in Bryson v. Middlefield Volunteer Fire Department, Inc., a volunteer firefighter who had made claims of sexual harassment and retaliation was considered an employee and therefore protected under Title VII, despite not being paid.
Furthermore, Massachusetts courts have recognized the right of volunteers to sue the organizations they work for under other statutes, such as the Massachusetts Civil Rights Act, or to file common law claims.
Therefore, while the default position is that volunteers are not covered by anti-discrimination laws, there are exceptions and grey areas where volunteers may be afforded some legal protection.
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Volunteers may be considered employees
In the case of Bryson v. Middlefield Volunteer Fire Department, Inc., the Sixth Circuit Court ruled that a volunteer firefighter who had made claims of sexual harassment and retaliation could be considered an employee of the department and thus protected under Title VII, despite not being paid. This decision introduced uncertainty for both employers and volunteers regarding their rights and protections in the workplace.
To determine whether a volunteer may be considered an employee, courts consider a range of factors, including the level of control exercised by the organisation, the provision of benefits, the duration of the relationship, and the extent to which the volunteer's work is integrated into the regular operations of the organisation. In the Marie v. American Red Cross case, the Sixth Circuit Court found that two nuns who had volunteered for disaster relief organisations were not employees under Title VII because they did not receive payment, traditional benefits, or tax treatment as employees, had control over their schedules, and their work differed from that of full-time employees.
Additionally, the nature of the volunteer position itself can be a factor. If a volunteer opportunity is a clear pathway to employment or if the organisation gives preferential hiring to past volunteers, this may bring the volunteer within the scope of employment discrimination laws. Similarly, if a volunteer offers services in exchange for training and employment certification, particularly when alternative means of certification are unavailable, they may be considered an employee under discrimination laws.
State laws also play a role in defining the protections afforded to volunteers. For example, in Massachusetts, while volunteers are not covered under the state's anti-discrimination in employment statute, they can bring discrimination actions under other statutes, such as the Massachusetts Civil Rights Act.
In summary, while volunteers are typically not considered employees for wage and hour laws, they may be considered employees for the purposes of anti-discrimination laws in certain circumstances. The specific facts of each case, the nature of the volunteer position, and the applicable state laws will all influence whether a volunteer is deemed to be an employee.
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Frequently asked questions
It depends. Volunteers are typically not considered employees and therefore are not protected by anti-discrimination laws. However, there have been cases where volunteers have been considered employees and thus protected by anti-discrimination laws, such as in Bryson v. Middlefield Volunteer Fire Department, Inc.
The Supreme Court has identified several factors that can be used to determine whether a volunteer is considered an employee, including the employer's control over when, where, and how the job is performed; the level of skill required for the job; the source of tools used; the location of the work; the duration of the relationship between the volunteer and the organization; whether the employer has the right to assign additional projects; the worker's discretion over when and how long to work; the method of payment; the worker's ability to hire and pay assistants; whether the work is part of the regular business of the employer; whether the employer is in business; employee benefits; and tax treatment.
In the case of Volling v. Antioch Rescue Squad, members of a volunteer rescue squad sued the relevant service organizations for sexual harassment, discrimination, and retaliation. The court determined that the volunteers were subject to the control of an employer over paid employees and thus qualified as employees who could bring suit under Title VII. In another case, RAFI v. Thompson, a court held that if a volunteer opportunity is a clear pathway to employment, that factor may bring a volunteer within the coverage of anti-discrimination statutes.