IW win establishes guidelines for governments to use to keep their volunteers from claiming they are employees

Isaac Wiles recently obtained a victory from the United States Court of Appeals for the Sixth Circuit on behalf of a government employer who had two former volunteers who attempted to claim they were employees. In Sister Michael Marie et al. v. American Red Cross et al., __ F.3d __ (6th Cir. 2014), two “Traditional Catholic” nuns volunteered for the Ross County Emergency Management Agency (“EMA”). After their volunteer status was terminated as a result of the dissatisfaction they expressed concerning how the EMA utilized them, they filed a lawsuit in which they claimed they were terminated due to their religious beliefs. They brought suit under Title VII of the Civil Rights Act of 1964, as well as Ohio’s equivalent statute, Revised Code Chapter 4112. Since both statutes only prohibit discrimination by “employers” against their “employees,” the issue was whether the nuns were employees or volunteers.

The Sixth Circuit noted that it had never before considered the issue of when a volunteer could become an employee. However, it applied prior case law concerning when an independent contractor could become an employee. While the Sixth Circuit noted that the fact that the Nuns received no compensation or financial benefits for their work weighed in favor of a finding that they were volunteers, this was not the only fact to be considered. The Sixth Circuit also noted that the fact that there was no evidence that the EMA possessed the right to assign additional projects to the Nuns, to decide when and how long the Nuns worked, or to control the means and manner in which they worked, also weighed heavily in favor of a finding that they were volunteers. Finally, the fact that the Nuns infrequently performed work for the EMA was also a significant factor in the Sixth Circuit’s ultimate determination that they were volunteers.

To insure that its volunteers do not become employees, public employers should have their volunteers sign written agreements in which they acknowledge: (1) that they are receiving no compensation or financial benefits as a result of their work; (2) that the public employer has no right to assign additional tasks other than those specified and limited volunteer duties; (3) that the public employer cannot decide when and for how long the volunteers will work; (4) that the public employer does not control the means and manner in which the volunteers provide their work; and (5) that the volunteers are not expected or required to perform their work with any regular frequency. The attorneys at Isaac Wiles are available to provide additional assistance to public employers who are looking to be safeguarded against legal claims from their volunteers.