Are Volunteers Protected
Under FEHA?
A
recent case from the California Court of Appeal discusses the issue of
whether an unpaid volunteer worker is entitled to statutory protection
under the Fair Employment and Housing Act (FEHA). The court ultimately concludes
that the worker in this case was not protected. The decision helps clarify
the definition of "employee" for FEHA purposes. Mendoza
v. Town of Ross,
1st Dist. No. A103878 (April 19. 2005)
Plaintiff Was a Local Community Service Officer
The
plaintiff in the case, Peter Mendoza worked for the Town of Ross as a volunteer
community service officer. Mendoza
was born with cerebral palsy and is a quadriplegic who
uses a wheelchair. He was assigned to work at a local grammar school and
assist in traffic duties, crime prevention and neighborhood crime watch
programs.
Mendoza's
volunteer position was unpaid. The volunteer arrangement initially suited
him fine because a salary might have interfered with some of his Medicaid
benefits. Mendoza
did not receive any other type of financial benefit such as health
insurance or retirement benefits.
Mendoza had a
regular work schedule, worked on holidays and took two weeks of vacation
each year. Mendoza
was given a uniform from the town and a badge with his name and the words
"Community Service Officer - - Ross Police."
After
about five years of working as a volunteer, Mendoza's
position as a community service officer was eliminated and Mendoza was let go.
Mendoza sued the
town alleging that his termination amounted to disability discrimination
under FEHA. The town demurred on the ground that Mendoza was not an "employee"
entitled to statutory protection under FEHA. The lower court agreed. Mendoza appealed the
lower court's decision.
Regulations Help Define Who Is an Employee
On
appeal, the court held that Mendoza
was not an "employee" of the town entitling him to sue for
wrongful termination or employment discrimination under FEHA.
FEHA
does not specifically define who is an employee. Instead, Government Code
section 12926 (c) merely excludes persons employed by close relatives and
those "employed" by nonprofit sheltered workshops and
rehabilitation facilities from the definition. The court stated that the
definitional provision of FEHA was not particularly helpful.
On
the other hand, the regulations do provide clarification of who is, and who
is not, an employee. The regulations define an employee as "[a]ny individual under the direction and control of an
employer under any appointment or contract of hire or apprenticeship,
express or implied, oral or written." (Cal. Code. Regs.,
Tit.2 7286.5)
The
court noted that appellate courts are not required to follow an
administrative interpretation of a statute. However, courts will defer to
an interpretation involving the administrative body's area of expertise if
the interpretation does not contradict the clear language and intent of the
statute. In this instance, the regulation "fills a gap in the
governing statute, and provides a workable definition of who may be considered
an employee, and thus entitled to the protection of FEHA."
Mendoza did not
meet the definition. There was no formal appointment to any position, no
contract and no apprenticeship. The court also noted that it was
significant that unpaid volunteers are specifically excluded from the
workers' compensation statute mandating coverage of employees.
Individual Must Receive Some Financial Benefit To
Be Considered an Employee
The
court also chose to look to federal cases interpreting Title VII. Absent
applicable California
case law, it is instructive to look to federal interpretation of Title VII
because of the similarity in wording of the statutes and objectives. California courts
often look to federal cases interpreting Title VII.
The
essentially uniform interpretation of Title VII is that unpaid volunteer
workers are not protected. The cases interpreting whether an individual is
an "employee" under Title VII conclude that the individual must
establish the existence of some remuneration in exchange for
work.
Substantial
indirect compensation can also count. For instance, substantial benefits
that are not merely incidental to the activity performed may indicate
employment status, such as health insurance, sick pay or retirement
benefits. One federal case found that volunteer firefighters were entitled
to protection as employees based on their receipt of significant benefits
such as disability pensions, survivors' benefits, group life insurance and
scholarships for dependent children of deceased firefighters. Pietras v. Bd. of Fire Com'rs.
of Farmington,
180 F.3d 468 (2d. Cir. 1999).
The
court noted that, under the federal cases, remuneration alone would not
suffice to establish an employer-employee relationship. However,
remuneration is "foundationally necessary" for the relationship
to exist. The court disagreed with another Division One court that found
that the absence of remuneration, direct or indirect, was not controlling.
Legislative Intent Does Not Indicate Intent To
Depart From Compensation Requirement
The
court of appeal concluded that there is nothing in the legislative intent
or history surrounding FEHA "evincing an intent
to depart from the requirement that compensation of some sort is
indispensable to the formation of an employment relationship."
In
this instance, Mendoza
conceded that his position was unpaid and did not allege any other type of
financial benefit. Therefore, he did not meet the definition of employee
under FEHA.
Tips for Employers:
- Examine whether
any "volunteers" your company uses receive indirect
financial benefits, such as health insurance, sick pay, or retirement
benefits which may indicate that they are in fact
"employees" under FEHA.
- Prohibit
discrimination and harassment against volunteers. Even if they are not
employees, the company policy should be to prohibit such harassment
and discrimination. These are still individuals who come to your
workplace, and the goal should be a workplace free of discrimination
and harassment. Moreover, even if an employer were to ultimately
prevail, there still remains the risk of litigation and damage to
company reputation and morale.
- Remember that
employers can be held liable for the sexual harassment of employees
committed by a non-employee, such as a volunteer. (Government Code
section 12940(j)(1).) The company will be
held responsible if you knew or should have known of the conduct and
failed to take immediate and appropriate corrective action. Courts
will consider the extent of the company's control over the
non-employee.
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