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Does the Equal Employment Law Apply to Volunteers?

This article originally appeared on www.mavanetwork.org and is featured here in partnership with the Minnesota Alliance for Volunteer Advancement.

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Compiled by: Karmit J Bulman 

During the Pandemic, many organizations chose to furlough volunteers. Many of those furloughed volunteers were over the age of 55. Many of these volunteers would have preferred to be given a choice of whether or not to volunteer.

This point of view led to some research. This may be an area worth exploring. What rights do “older” volunteers have with regard to preventing age discrimination? Let's dive in.

Does the Equal Employment Law Apply to Volunteers?

According to the U.S. Equal Employment Opportunity Commission, volunteers may be protected under equal opportunity laws in some cases. The EEOC defines employees as “people who work full-time, part-time, seasonally or on a temporary basis; Individuals assigned to your business under a work program (for example, a program that provides placements for welfare recipients); Volunteers, in some cases; and. Individuals who are not citizens (including individuals who are undocumented)."

The EEOC goes on to say  “Volunteers usually are not protected "employees." However, an individual may be considered an employee of a particular entity if, as a result of volunteer service, s/he receives benefits such as a pension, group life insurance, workers' compensation, and access to professional certification, even if the benefits are provided by a third party. The benefits constitute "significant remuneration" rather than merely the "inconsequential incidents of an otherwise gratuitous relationship."

Example - CP was terminated from her position as a probationary volunteer firefighter after she failed an agility test. She alleges that the test has a disparate impact on women. Respondent claims that CP was not an employee, and, therefore, not protected by Title VII. State X provides volunteer firefighters up to $400/month in state retirement benefits (after five years of service); death and survivors benefits; group life insurance; disability and rehabilitation benefits; health care benefits; and tuition reimbursement for courses in emergency medical and fire service techniques. These benefits are "significant remuneration" sufficient to create an employment relationship between CP and Respondent.

A volunteer may also be covered by the EEO statutes if the volunteer work is required for regular employment or regularly leads to regular employment with the same entity. In such situations, discrimination by the respondent operates to deny the charging party an employment opportunity.

Example - CP is a volunteer counselor with the Respondent, a public interest organization, and alleges that she was subjected to sexual harassment by her supervisor and coworkers. Respondent maintains that CP is not its employee, and, therefore, not covered by Title VII. While volunteer service is not a prerequisite to employment, former volunteers are given preferential treatment when competing for vacancies against applicants who have not volunteered with Respondent. Most of Respondent s regular, paid counselors initially performed volunteer work for Respondent. In this case, volunteer service regularly leads to employment with Respondent. Therefore, CP is protected by the EEO statutes.” 

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The National Law Review Perspective

According to the National Law Review, in certain organizations, particularly non-profit organizations, volunteers perform services for the organization. In a recent case in the Northern District of Illinois (Volling v. Antioch Rescue Squad, 1:11-cv-04920 (N.D.Ill. Dec. 4, 2012)), the court was faced with the question of whether members of a volunteer rescue squad could sue the relevant service organizations for sexual harassment, discrimination and retaliation. The two organizations moved to dismiss the complaint contending that the plaintiffs were volunteers and therefore excluded from coverage under Title VII.

The court examined several factors in making its determination including “the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989). The court determined that “[n]o one of these factors is determinative,” thus rejecting the defendant organizations’ contention that the absence of remuneration should control. The court stated that remuneration is but one factor in the totality of the circumstances. “The question and degree of remuneration are simply factors to be considered, along with many others, in assessing whether a worker is an ‘employee’ for purposes of Title VII.”

After examination, the court found that the workers “appear to be subject to the strictures of a typical workplace and – importantly – to the control exercised by an employer over paid employees.” Thus, the court determined that the workers qualified as employees who could bring suit under Title VII.

Notably, other courts have imposed a “significant remuneration” requirement when seeking to bring suit under Title VII and that an absence of remuneration can be the determinative factor as to whether a volunteer qualifies as an employee under Title VII.

Nevertheless, although this issue is far from settled, employers should be aware that Title VII may extend to cover volunteers in the workforce and provide volunteers the opportunity to bring suit alleging harassment and discrimination.

Now might be a good time for volunteer engagement professionals to explore practices and procedures which protect older volunteers from discrimination in their organizations. 

Additional Resources

Liability Issues Regarding Volunteers

Who is an "Employee" Under Federal Employment Discrimination Laws?

Discrimination and Volunteers: Are Employers Liable?

Seniors as Volunteers: An international Perspective on Policy

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