Directors and volunteers don’t count as employees

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in Discrimination and Harassment,Human Resources

The ADA applies to employers with 15 or more employees. The Age Discrimination in Employment Act (ADEA) covers employers with 20 or more employees.

Pretty clear, right? But whom you count is crucial, especially if your head count is right on the cusp of the ADA or ADEA threshold.

A recent 9th Circuit Court of Appeals case clarifies one thing: If your organization has a board of directors, the members probably don’t count. Neither do volunteers—if they have plenty of freedom, aren’t on the payroll and otherwise don’t have characteristics that make them look like employees.

Recent case: Fred Fichman, who claims a disability and is over age 40, was the executive director of the Media Center, an independent nonprofit that operates a community-access channel on a cable system. He sued the Media Center for ADA and ADEA violations, and contended the organization was large enough to be subject to both laws.

The Media Center has a board of directors, but they aren’t involved on a day-to-day basis. It also has a large group of independent producers who create some of the content, including cooking, fitness training and religious shows. Although they take a class to learn how to use the equipment, the shows they create are their own. They are not paid, nor do they get any benefits other than the satisfaction of watching their content broadcast.

Fichman tried to include both the directors and the volunteer producers as employees to establish the Media Center’s coverage under the ADA and ADEA. The court didn’t buy it, excluding both from the head count and dismissing the case. (Fichman v. Media Center, No. 05-16653, 9th Cir., 2008) 

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