Keep close tabs on your head count: Volunteers may be ‘employees’ under Title VII

Don’t think you have enough employees to be covered by Title VII’s anti-discrimination provisions or other laws? If volunteers help your organization accomplish its work and you don’t count them, think again.

According to a recent 6th Circuit Court of Appeals decision, even if they don’t receive a paycheck, volunteers may sometimes be included in the 15-worker count for coverage if they receive other benefits.

Recent case: Marcia Bryson first began working for the Middle­field Volunteer Fire Department as a volunteer firefighter and then as an administrative assistant. She alleged that the fire chief subjected her to un­­wanted sexual advances, requests for sexual services and physical contact of a sexual nature. She said he conditioned her job on agreeing to sexual favors.

At the time, the fire department had at most nine employees on the payroll. In addition, a small group of volunteer firefighters received no direct pay. If they were counted as employees, the department would have met the 15-employee threshold for being covered by Title VII—and thus on the hook for sexual harassment.

Bryson filed an EEOC complaint and the agency concluded that, under its policies, the volunteer firefighters counted as employees. Citing its own compliance manual, the EEOC said volunteers count as employees if they receive benefits such as “a pension, group life insurance, workers’ compensation and access to professional certification.” It added that when employers exercise significant control over volunteers, the scale tips further to the employee side and that receiving a paycheck isn’t a requirement.

When the case made its way to the 6th Circuit Court of Appeals, the judges essentially agreed with the EEOC. The 6th Circuit sent the case back to trial, reasoning that because the firefighters were covered by the department’s workers’ compensation policy, told how to do their jobs, had opportunities for training and could purchase life insurance through the department, they appeared to be em­ployees and should be counted toward the 15-employee threshold. (Bryson v. Middle­­field Vol­­un­­­teer Fire De­­part­­ment, No. 10-3055, 6th Cir., 2011)

Final notes: More and more vol­un­teers—in­­cluding interns—are begin­ning to assert their rights. In the private sector, for example, interns have made big inroads using the argument that they should be paid minimum wage in most cases, especially if their internships are essentially unpaid jobs that would normally have to be done by someone else.

It’s not just a pay issue. Remember that you are also responsible for any sexual harassment or discrimination that interns and volunteers experience while working for you.

If you use volunteers, always consult your attorney before providing benefits such as workers’ compensation coverage or even tokens of appreciation such as gas or merchandise cash cards. The more restrictions you place on volunteers, such as setting their hours, the more likely they can morph into employees.

This is especially important if your employee count is close to minimums for coverage by labor laws like the FMLA. You don’t want to “hire” employee No. 50 as a volunteer and then suddenly find the organization is obligated to provide FMLA leave.

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