Sixth Circuit Clarifies “Volunteer vs. Employee” Test

December 23, 2014 By Jeffrey S. Shoskin
Legal update

When are “volunteers” protected from employment discrimination under Title VII?  The Sixth Circuit Court of Appeals (covering Ohio, Kentucky, Michigan, and Tennessee) answered that thorny question in Sister Michael Marie v. American Red Cross.  In that case, two Catholic nuns volunteered their services to two non-profit corporations (“agencies”).  When their volunteer relationships subsequently were terminated, the Sisters, in part, brought religious discrimination, retaliation, and harassment claims under Title VII and Ohio law.  The Sixth Circuit determined their volunteer relationship did not fairly approximate employment, and they were not covered under Title VII or Ohio law.

In doing so, the Sixth Circuit reiterated that so-called “volunteers” actually may be employees for purposes of federal/state discrimination laws.  The “volunteer vs. employee” question is best resolved by examining a number of factors derived from common law agency principles – the so-called Darden (U.S. Supreme Court case) factors.  All such factors, including receiving compensation, should be given equal weight.  As set forth below, the Court’s careful application of the Darden factors to this case provides valuable guidance to employers faced with this designation dilemma.

That lone factor, however, did not resuscitate the Sisters’ Title VII and Ohio religious discrimination claims.

Lesson learned?  Many non-profit organizations and public employers rely upon volunteers to supplement their paid work force.  Before adding non-compensated staff, take a careful look at how much “control”, if any, you intend to exercise over them.  Will you grant them any so-called non-traditional “benefits?”  If so, why?  Can those “benefits” be credibly characterized as having real financial value given as consideration for an ongoing employment relationship?  Such careful deliberation will assist employers in inadvertently treating volunteers as employees and trigger protections under federal and state employment laws.  Remember, if it quacks like a duck, and walks like a duck…

For more information, please contact Jeff Shoskin or any other member of Frost Brown Todd’s Labor and Employment Practice Group.

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