5th Circuit Adopts Test for Determining Employment Status of Volunteers Under Title VII
Author: Beth P. Zoller, XpertHR Legal Editor
June 20, 2013
Just in time for summer, when many employers hire volunteers, the 5th Circuit Court of Appeals has set the standard in the circuit for determining whether volunteer workers are employees under Title VII. The court ruled that a former volunteer firefighter was not an employee and, therefore, could not maintain a Title VII claim against the fire department where she worked because she did not receive compensation or some other significant indirect employment-related benefits during the time she volunteered there. See Juino v. Livingston Parish Fire District No. 5, +2013 U.S. App. Lexis 10934 (5th Cir. 2013). Employers in the 5th Circuit should now consider payment of compensation to a worker as a threshold factor in determining the existence of an employment relationship.
The ruling adopts the so-called threshold-remuneration test as the standard test to be applied by courts in the 5th Circuit, which includes Texas, Mississippi and Louisiana, when determining whether a volunteer worker may file a Title VII claim. Several other circuits (the 2nd, 4th, 8th, 10th and 11th) have also adopted this standard. The appellate courts for the 6th and 9th Circuits apply a different test, known as the incident-of-employment test, which uses compensation as only one factor of many to be considered when determining the existence of an employment relationship.
The case arose when Juino claimed that, despite her complaints to superiors of sexual harassment by a co-worker during the time she volunteered at the fire department, no disciplinary action was taken by her superiors. Juino was not paid a salary by the fire department but she received various benefits, including:
- $2 for every fire or emergency call she responded to (a total of $78);
- A life insurance policy;
- A firefighter uniform and badge;
- Firefighting and emergency response gear; and
- Firefighting/emergency first-response training.
After Juino quit, she filed a claim with the Equal Employment Opportunity Commission (EEOC) and in district court for sexual harassment and retaliation under Title VII. The district court dismissed her claim concluding that Juino was not an employee and, therefore, was not entitled to the protection of Title VII. Juino appealed to the 5th Circuit, which affirmed the lower court's ruling.
The 5th Circuit concluded that Juino was not an employee because the benefits she received were purely incidental to her volunteer work. She did not receive either direct compensation, such as a salary or wages, or significant indirect employment-related benefits (e.g., pension, life insurance, disability benefits, health benefits, etc.).
Although the employer in Juino was successful, employers should still proceed carefully and not discriminate against volunteers in order to avoid any potential disputes. Depending on whether a worker receives a salary or indirect benefits, the worker may or may not be deemed an employee under Title VII.