Typically, Title VII as well as other employment laws only covers employees and therefore volunteers would not be protected.
There are several circumstances where an employment relationship could be found where there is no traditional employment relationship.
In the case of Bryson v. Middlefield Volunteer Fire Department, the 6th Circuit rejected the Second Circuit’s two step test which first examines whether the putative employee receives significant remuneration and then analyzes the common law right to control test. The Sixth Circuit, in a 2-1 panel decision, declares a split with the Second Circuit and holds that remuneration is only one factor – not a threshold factor – in the judicial determination about whether volunteer workers should count as employees.
Judge Moore of the Circuit courts says:
“We have applied the common-law agency test . . . to determine whether an employment relationship exists under different statutes, particularly in the context of distinguishing employees from independent contractors. . . . However, we have not considered the issue of employment relationships in the context of a volunteer.”
The majority goes on to hold:…” To be sure, ‘[t]he degree of importance of each factor [will vary] depending on the occupation and the factual context in which the services are performed.’ . . . . But no one factor, including remuneration, is decisive, and therefore no one factor is an independent antecedent requirement.”
While looking into the factors, including renumeration, to decide whether an employee relationship exists, the outcome could affect volunteers. Moreover, interns, graduate students, even prisoners – are just some examples of categories of people who might be deemed “employees” of an organization under Title VII, depending on the conditions of their work and how they might be compensated for their services.
While an employee may be volunteering their time and services, this does fact alone does not strip them of Title VII rights without further inquiry to the employment relationship. Such persons should not shy away from seeking legal advice to determine if their employment relationship grants protection under employment law.