Unpaid Volunteers are Not Employees for Purposes of Title VII, But Beware of Unpaid Interns and the FLSA
On May 30, 2013, in case of first impression, the Fifth Circuit held that an unpaid volunteer firefighter making a Title VII claim of sexual harassment is not an “employee” for purposes of the statute and therefore had no legal claim. Juino v. Livingston Parish First District No. 5., No. 12-30274, 2013 WL 2360116, at *7 (5th Cir., May 30, 2013).
In Juino, former volunteer firefighter, Rachel Juino, sued the Livingston Parish Fire Department, claiming she was subjected to sexual harassment during her tenure with the Department. The Department argued Juino was a volunteer, not an “employee” for purposes of Title VII and therefore could not bring a claim. Further, the Department argued that it was not an “employer” for Title VII purposes because while its membership roster had approximately 70 firefighters, only three were paid employees and therefore they lacked the threshold 15 employees for Title VII coverage.
In determining whether Juino was an employee, the Court analyzed two different approaches for evaluating the employment relationship in the volunteer context–the threshold remuneration test and the incidents of employment relationship test. In the threshold remuneration test, the plaintiff-volunteer must make a threshold showing that she received remuneration or some other significant indirect benefit before the court will analyze whether an employment relationship exists. The incident of employment test, adopted by two Circuits, treats remuneration as merely one factor in determining the overall employment relationship rather than the dispositive factor. The Fifth Circuit concluded that the threshold remuneration test was the proper test to apply.
Using the remuneration test, the Court analyzed Juino’s engagement with the Department. Juino received $2 per emergency call, life insurance, uniform and badge, and emergency response gear and training. During her engagement, Juino responded to 39 calls for a total monetary remuneration of $78. These benefits, the Court concluded, were merely incidental to her volunteer service for the District and unlike the significant indirect benefits received by volunteer firefighters in other reported cases where the volunteers were determined to be employees (e.g., disability pension, life insurance, death benefits, tax exemptions for unreimbursed business expenses, scholarships for dependents, reduced rates on commemorative license plates and limited medical benefits). The Court concluded that Juino’s indirect benefits were too insignificant to pass the threshold remuneration test and she was therefore not an employee for Title VII purposes.
The take away from the Juino decision is that unpaid volunteers are not covered by the protections of Title VII and will not be counted in determining “employer” coverage under the statute. Based on the logic of the Juino decision, unpaid interns are also not likely to be covered under Title VII.
Caveat: Although unpaid volunteers and interns are not likely covered by Title VII, remember the Fair Labor Standards Act prohibits employees from volunteering services to for-profit private sector employers. In addition, the FLSA has specific rules for for-profit private sector employers who hire unpaid interns.
On June 11, 2013, a District Court in New York ruled that the plaintiffs who worked in the movie Black Swan produced by Fox Searchlight Pictures, Inc., were employees and protected under the FLSA and NY state wage and hour law. The Court also conditionally certified all unpaid interns who worked on films produced by Fox Searchlight Pictures and its subsidiaries between 2008 and 2010 and were classified as unpaid interns instead of paid employees. This decision is a warning to companies that labeling a person an intern will not relieve the company of its legal responsibilities. The case is Eric Glatt and Alexander Footman, et al., v. Fox Searchlight Pictures, Inc., No. 1:11-cv-06784 in the U.S. District Court, Southern District of New York.
As the Summer approaches, make sure you understand and comply with the FLSA rules before agreeing to take on unpaid interns. See Summer Interns: Free Labor Could Cost Your Company.
For more information about unpaid interns and volunteers, or any other employment law related questions, please contact the head of GDHM’s Employment Law group, Susan Burton, at firstname.lastname@example.org or 512.480.5738
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