ambulanceThe CHRO is no stranger to taking aggressive positions in the court system.

So, it can really be no surprise that the agency wanted to expand who is covered by the state’s anti-discrimination laws.

But the Connecticut Supreme Court, as it has done before, was having none of it.  The end result of the case is one that frankly is of interest more to employment lawyers than to the clients we serve.

The newest case, CHRO v. Echo Hose Ambulance, will be officially released this week. But we have an advance release opinion which makes it clear that unpaid volunteers — even those that serve in the volunteer ambulance corp — aren’t entitled to coverage under the state’s anti-discrimination laws.

Of course, the issue framed is slightly different; the court said it was called upon to determine “what test” should be applied to determine whether an unpaid volunteer is an ‘‘employee’’. “More specifically, we must decide whether a volunteer must satisfy the predominant ‘‘remuneration test’’ used to resolve similar federal causes of action or Connecticut’s common-law ‘‘right to control’’ test.”

The court concludes that the remuneration test is appropriate. The remuneration test instructs courts to ‘‘conduct a [two step] inquiry by requiring that a volunteer first show remuneration as a threshold matter before proceeding to the second step—analyzing the putative employment relationship under the [common-law] agency test. Remuneration may consist of either direct compensation, such as a salary or wages, or indirect benefits that are not merely incidental to the activity performed.”

The case isn’t that much of a surprise after last year’s Appellate Court decision which held the same thing.  As my colleague, Gary Starr, wrote back then that what matters is how the person is remunerated.  As he noted then, “for employers and organizations, the decision provides a notable reminder to review the status of your volunteers to ensure that you haven’t transformed any of them into “employees”.”

wheelchairOver the weekend, I finished planning for our webinar tomorrow on the new overtime rules.  In digging deeper into the materials produced by the Department of Labor on the final rule, I looked at the use of volunteers as a solution — particularly for non-profit organizations.

For the “for-profit” world, this is probably not a realistic option.  The DOL really frowns on any such designation.

But on the last page of the 10-page guidance for non-profits, is a whole section on how non-profit organizations can use volunteer services if certain conditions are met.

To be sure, the new overtime rule doesn’t change the existing rules governing volunteers, but as non-profits look at how to address the issue internally, the use of volunteers may pop up.

So who is a volunteer? According to the DOL: 

A volunteer generally will not be considered an employee for purposes of the FLSA if the individual volunteers freely for public service, religious, or humanitarian objectives, and without contemplation or receipt of compensation. …  Under the FLSA, a person who works in a volunteer role must be a bona fide volunteer.

Some examples of the many ways in which volunteers may contribute to an organization include:
• members of civic organizations may help out in a community rehabilitation program;
• men’s or women’s organizations may send members to adult day care centers to provide certain personal services for the sick or elderly;
• individuals may volunteer to perform such tasks as driving vehicles or assisting with disaster relief; and
• individuals may volunteer to work with children with disabilities or disadvantaged youth, helping in youth programs as camp counselors, scoutmasters, den mothers, providing child care assistance for needy working parents, soliciting contributions or participating in benefit programs for such organizations, and volunteering other services
needed to carry out their charitable, educational, or religious programs.

So, problem solved right? Well, not exactly. The DOL suggests that volunteers serve on a part-time basis and, here’s the key point:
“should not displace employees or perform work that would otherwise typically be performed by employees.”

And what about having paid employees volunteer their extra time? According to the DOL: paid employees of non-profit organizations may not volunteer to provide the same type of services to the non-profit organization that they are otherwise
typically employed to provide.

The DOL provides two examples:

  1. A non-profit medical clinic has an office manager who handles office operations and procedures. The clinic hosts an annual 5K fun run in order to raise funds for its free services. In past years, the office manager also spent time on race day working by registering runners the morning of the run. Newly non-exempt under the Final Rule, the non-profit clinic may permissibly choose to utilize more volunteers this year to register runners instead of tasking the office manager with that assignment (provided all the conditions for bona fide volunteers are met), thus avoiding the accumulation of overtime hours in that week for the office manager.
  2. Using the same facts as above, many other individuals from the community volunteer on race day. The volunteer activities, such as packet pickups, course marshaling, water distribution, and staffing food tables at the finish line, are activities that are not typically performed by employees of the medical clinic. Based on these facts, the individuals are likely bona fide volunteers.

The use of volunteers can be part of a solution to rising overtime costs at a non-profit, but only just part.  The notion that you can just replace your employees with volunteers is not realistic.

We’ll talk more about this and other overtime issues tomorrow.  Hope you are able to join us.

Having this blog for nearly eight years, it’s fair to say that I’ve covered quite a few topics. But every once in a while, a never-before-discussed issue makes it way to the forefront. Today is one of those days.

My colleague, Gary Starr, has a post today about a recent Connecticut Appellate Court decision (CHRO v. Echo Hose Ambulance) that analyzed whether a volunteer could be an “employee” under the state’s anti-discrimination laws and how courts are to make that determination. For additional background, the Connecticut Law Tribune has this article. starr

Volunteers are essential in supporting some public services and supplementing the work force of many not-for-profit organizations. But suppose a volunteer has a complaint about how he or she is being treated.

Perhaps that person even believes that he or she is being harassed.

When a volunteer believes he/she has been mistreated,  is he/she protected by the Connecticut Fair Employment Practices Act (FEPA), even though the volunteer is not “employed”?

What other avenues does the person have except to stop volunteering?

Or, put another way, when that person is carrying out important functions related to the mission of the agency and acting under the direct supervision of the leadership of the agency, can claims of discrimination be brought to and be resolved by the CHRO?

A recent appellate court decision, in a case of first-impression in Connecticut, better defined how a person can make a claim that he or she was an “employee”.

In doing so, the court first held that it does not matter whether the agency controls or directs the volunteer’s services or defines the methods or means by which the services are provided.  What matters instead is whether and how the volunteer is remunerated.

Does the volunteer receive job-related benefits and, if so, how great are such benefits?  This means that the volunteer must allege and prove that he/she receives benefits far greater than a thank you commendation and a party celebrating his/her service.

The volunteer must establish that he or she receives such benefits as health insurance, vacation and sick pay, eligibility for a disability pension, group life insurance or other significant remuneration, which are the type of benefits employees are provided. The court said it is not enough to be given training, a uniform, equipment for carrying out an assignment, or even a modest payment.

Simply put, volunteers are volunteers and not employees, unless and until the “employer” provides significant benefits which will make the volunteer look like an employee and therefore will need to be treated like an employee.

When an organization starts providing tangible compensation or benefits to its volunteers in meaningful ways, the person who was willing to help out from “the goodness of her heart” may be transformed into an “employee” under state law and then has an avenue for objecting to discriminatory treatment.

For employers and organizations, the decision provides a notable reminder to review the status of your volunteers to ensure that you haven’t transformed any of them into “employees”.