When is an unpaid volunteer considered an “employee” and thus able to sue for discrimination or retaliation under the Connecticut Fair Employment Practices Act (“CFEPA”)? The answer: when the volunteer receives remuneration in the form of significant employment benefits. This is the conclusion the Superior Court recently reached in Commission on Human Rights and Opportunities v. Echo Hose Ambulance, et al . In Echo House Ambulance, the Court determined that the test applied by the federal courts for determining employment for purposes of Title VII claims, which conditions employee status upon the receipt of direct or indirect remuneration, applies in the same manner for determining employment for claims brought under CFEPA.
So what exactly constitutes direct or indirect remuneration under the federal Title VII test? While the Second Circuit has declared that the benefit derived by, or conferred upon, the would-be employee need not be in the form of a salary or wages, it has repeatedly suggested that the benefit must be of a financial nature and meet some minimum level of significance or substantiality to constitute sufficient remuneration. See e.g.; York v. Ass’n of Bar of City of New York, 286 F.3d 122, 126 (2d Cir. 2002); Pietras v. Board of Fire Commissioners, 180 F.3d 468 (2d Cir. 1999); O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). Under this standard, benefits such as the provision of health insurance, pensions, death benefits, disability insurance, vacation or sick pay may well render someone who would otherwise be considered an unpaid volunteer an employee.
The Court in the Echo Hose Ambulance case concluded, under the federal remuneration standard, an unpaid volunteer for an ambulance company was not an employee for purposes of CFEPA. The Court reasoned that the benefit cited by the volunteer, asserted opportunity for future employment arising from her volunteer status, was too attenuated and was therefore insufficient remuneration to establish the employment relationship. The Court’s apparent focus, and ultimate reliance, upon the speculative nature of the remuneration leaves at least some question as to whether Connecticut courts will strictly adhere to the Second Circuit Court of Appeal’s practice, at least to date, of limiting employee status to those individuals whose remuneration is of a financial nature. While courts in other circuits have considered non-financial benefits sufficient remuneration to establish an employment relationship, the Second Circuit has steadfastly refused to follow suit.
Why is this case significant?
Whether your unpaid volunteer is an employee eligible to bring suit under CFEPA will depend upon the nature and substance of any benefits provided. If the benefits are financial, and significant, chances are they will be considered employees under the Act.
Of course, the employment status of an unpaid volunteer will most likely not affect the potential liability of school districts under other discrimination laws. Title VI, Title IX and Section 504 of the Rehabilitation Act, for example, all prohibit discrimination (race, gender and disability, respectively) in educational programming. As liability under these statutes is not predicated upon establishment of an employment relationship, they may be interpreted as providing volunteers with a remedy for discrimination regardless of employment status.