WORKPLACE LAW - Non-Profit Employer
Question:
I manage a non-profit which utilizes a number of volunteers to support its mission. One of those volunteers has been quite troublesome and disruptive. For that reason we decided not to utilize his services any longer. He is now accusing us of discrimination and is threatening to file a claim with the Department of Fair Employment Housing (DFEH). I thought the DFEH only dealt with employee issues. Can a volunteer file such a claim?
Answer:
While this individual could certainly file a claim with the Department of Fair Employment and Housing, it is likely to be unsuccessful unless there is some evidence that he should be considered an “employee” for purposes of the California Fair Employment and Housing Act (“FEHA”).
A similar issue was before a California Court of Appeal in Mendoza v. Town of Ross. In this case, the court held that in order for a volunteer to be considered an “employee” (and to therefore be protected from wrongful termination and employment discrimination under the FEHA), the individual must: 1) be compensated for his or her services; and 2) be appointed, hired under an express or implied contract, or be an apprentice.
The Mendoza case involved a town’s volunteer community service officer, who assisted with traffic duties, crime prevention and neighborhood crime watch programs. The volunteer was a quadriplegic and utilized a wheelchair to perform his duties. He was unpaid, but had a regular work schedule, worked on holidays, and took two weeks of vacation a year. When his position with the town was eliminated, the volunteer sued the town for disability discrimination under the FEHA and for wrongful termination in violation of the public policy set forth in the FEHA. The Court found that the volunteer was not an “employee” protected from wrongful termination and employment discrimination under the FEHA because he was not compensated for his services, and because he had not been appointed or hired under an express or implied contract, and he was not an apprentice of the town.
However, in so holding, the Court noted that even substantial indirect compensation (i.e. something other than salary) such as health insurance and vacation or sick pay may turn a “volunteer” into an “employee.” For this reason, it is important for employers to be aware that they could potentially change a “volunteer” into an “employee” by providing even substantial indirect compensation to the individual such as vacation or sick pay, health and other insurance, disability pensions, survivor’s benefits, or retirement benefits.
It is also important for entities that utilize volunteers to be aware that there are potential claims available to volunteers who are damaged by the entities’ unlawful conduct. Unlike the FEHA claims made in the Mendoza case, these claims are not dependent on the volunteer being properly classified as an employee. These claims include common law tort claims such as defamation, intentional or negligent infliction of emotional distress, and violations of statutes such as California’s Unruh Act (which prohibits discrimination in the provision of things like services and privileges). Employers therefore need to know the status of those individuals who work for them, and to be aware of the potential claims that those individuals may be capable of filing depending on that status.- - - - - - - - - - - - - - - - - - - - - - - - - -
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