When are “volunteers” protected from employment discrimination under Title VII?  The Sixth Circuit Court of Appeals (covering Ohio, Kentucky, Michigan, and Tennessee) answered that thorny question in Sister Michael Marie v. American Red Cross.  In that case, two Catholic nuns volunteered their services to two non-profit corporations (“agencies”).  When their volunteer relationships subsequently were terminated, the Sisters, in part, brought religious discrimination, retaliation, and harassment claims under Title VII and Ohio law.  The Sixth Circuit determined their volunteer relationship did not fairly approximate employment, and they were not covered under Title VII or Ohio law.

In doing so, the Sixth Circuit reiterated that so-called “volunteers” actually may be employees for purposes of federal/state discrimination laws.  The “volunteer vs. employee” question is best resolved by examining a number of factors derived from common law agency principles – the so-called Darden(U.S. Supreme Court case) factors.  All such factors, including receiving compensation, should be given equal weight.  As set forth below, the Court’s careful application of the Darden factors to this case provides valuable guidance to employers faced with this designation dilemma.

  • The Sisters did not receive any monetary compensation.  They also did not receive traditional benefits such as medical, dental, and vision insurance.
  • In some situations, certain other job-related benefits (e.g., workers’ compensation coverage, training, gift cards, pension, life insurance, tuition reimbursement, discounts, etc.) could bear a resemblance to traditional forms of employee compensation “because they include presently vested benefits with real financial value given as consideration for an ongoing relationship and continued service.”
  • Enhanced career opportunities, access to training, or possible future employment are insufficient to confer “employment” status when they are accessible to the general public or when they are too speculative. 
  • Many of the benefits provided to the Sisters (i.e., life insurance, workers’ compensation insurance eligibility, liability insurance, in-kind donations, travel reimbursements) were contingent or simply incidental to their volunteer activities “rather than valuable financial consideration exchanged in return for services.”
  • The educational opportunities, possibility to receive new duties and responsibilities, increased standing in the community, networking opportunities, opportunities for grants, and access to other service opportunities were too speculative and insufficient to constitute “compensation” to bring the Sisters under the employee designation umbrella.
  • Where there is a clear path to employment from volunteer to paid position, the volunteer is economically dependent on the employer and is more likely to be an employee.
  • The Sisters were not treated as employees for income tax purposes.  They did not receive or complete W-2, W-4, or I-9 forms. They also did not pay income taxes.
  • Although the Court stated all of the Darden factors must be weighed equally, it stressed the “employer’s ability to control job performance and the employment opportunities of the aggrieved individual are the most important of the many factors to be considered.”
  • The Sisters retained considerable discretion and flexibility over when and how they volunteered.  They were not required to operate on a fixed schedule.  Their work was not closely controlled.  The work schedule and duties were crafted to accommodate their availability.  They could refuse times or tasks assigned to them.
  • Even if the agencies would have threatened to sever the Sisters’ volunteer relationship if they refused to adhere to a set schedule or accept assigned tasks, that “does not necessarily show the agencies exercised any real control over the Sisters.”  Unlike employees, the Sisters were not economically reliant on those agencies in any real or measurable way.  Since economic dependence is one of the primary sources of employer control over employees, its absence undercuts the Sisters’ argument that they were under the agencies’ control.
  • The Sisters had been associated with the agencies for several years.  The Court was not concerned “with the length of the relationship, but rather, when hired, whether [it] was one of a long-term at-will employee or one to complete a particular task in a specified time-frame.”  The Sisters’ activities (e.g., disaster relief, trainings, and local event participation) were more akin to particular tasks for which the agencies contracted rather than consistent duties of a long-term employee.
  • One Darden factor weighed in favor of an “employee” designation.  The Sisters primarily were volunteering in the areas of disaster relief – which was the regular business of the agencies. 

That lone factor, however, did not resuscitate the Sisters’ Title VII and Ohio religious discrimination claims.

Lesson learned?  Many non-profit organizations and public employers rely upon volunteers to supplement their paid work force.  Before adding non-compensated staff, take a careful look at how much “control”, if any, you intend to exercise over them.  Will you grant them any so-called non-traditional “benefits?”  If so, why?  Can those “benefits” be credibly characterized as having real financial value given as consideration for an ongoing employment relationship?  Such careful deliberation will assist employers in inadvertently treating volunteers as employees and trigger protections under federal and state employment laws.  Remember, if it quacks like a duck, and walks like a duck…