Title VII defines “employee” as “an individual employed by an employer,” leaving the courts to square the circular definition. Some U.S. courts of appeals have adopted the common law/ economic realities test to determine whether a volunteer is really an “employee.” This test focuses on who controls the work and who has financial risk as a result of the arrangement. Because the putative employer “controls” the work of volunteers as well as employees, this test seems like the wrong one to use. Other courts of appeals require a volunteer to show that the employer paid the volunteer a salary or wage or provided the volunteer with significant indirect benefits before the court will consider the common law/ economic realities test. Indirect benefits might include pensions, life insurance policies, disability benefits, health insurance, and other employment-like benefits.

In a recent decision, the Fifth Circuit concluded that a volunteer firefighter was not an “employee” because the fire district neither paid her a salary or wages nor provided her with significant employment-like benefits. Juino v. Livingston Parish Fire District No. 5, No. 12-30274 (5th Cir. May 30, 2013).  As a result, the court affirmed summary judgment for the fire district on the plaintiff’s sexual harassment claims.

When are volunteers not really volunteers? When they are in it for the money.