Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, December 25, 2011

6th Circuit Issues Major Decision Addressing Volunteer Coverage Under Title VII

Bryson v. Middlefield Volunteer Fire Department, ____F.3d____(6th Cir. Sep't. 2, 2011), is a major employment law case. Normally, Title VII as well as other employment laws only covers employees. Thus, volunteers would not be protected under most employment laws because they are not employees. But who is a volunteer? Does it may if they receive some type of remunication? I wrote a law review article on this in 2006. Our Nation's Forgotten Workers: The Unprotected Volunteers  
Journal of Labor and Employment Law, Vol. 9, p. 147. Notice how I use the term "most." There are several circumstances where an employment relationship could be found where there is no traditional employment relationship. I will have more to say on this topic when my forthcoming law review article in the Univ of Penn Journal of Business Law is published early next year. For now, I wish to stick to the issue of the status of volunteers. 

In Bryson, 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 6th Circuit held that the issue of remuneration should not be part of a separate step, but rather it is an issue which can be included within the common law factors. Thus, the court drew a very fine line. It explained its reasoning as follows:

We believe that the district court erred, however, in its conclusion that remuneration must be an independent antecedent inquiry. The district court adopted the Second Circuit's two-step test for determining whether an individual is an employee under Title VII, which requires a plaintiff to establish first that she is a "hired party" by showing that she received "substantial benefits not merely incidental to the activity performed," before the district court may consider the common-law agency test from Darden and Reid. City of New York, 359 F.3d at 91-92 (internal quotation marks omitted); see R.25 (Dec. 14, 2009 Dist. Ct. Op. at 3 & n.4) (citing O'Connor v. Davis,126 F.3d 112, 115-16 (2d Cir. 1997), cert. denied, 522 U.S. 1114 (1998)). In this case, each individual firefighter-member is a "hired party" in that each has a contractual relationship with the Department—the firefighter-member provides firefighting services to the Department in exchange for benefits from the Department, including worker's compensation coverage, insurance coverage, gift cards, personal use of the Department's facilities and assets, training, and access to an emergency fund. See Demski v. U.S. Dep't of Labor, 419 F.3d 488, 492 (6th Cir. 2005) (concluding that petitioner—the sole shareholder of a company that had contracts with the purported "employer" company—was not an "employee" of the latter company under the Energy Reorganization Act, 42 U.S.C. § 5851, because "[i]t is undisputed that no contractual relationship of any sort existed between [the purported "employer" company] and [the petitioner]"). But we decline to adopt the Second Circuit's view that, to be a "hired party," a plaintiff must demonstrate that she received significant remuneration. See City of New York,359 F.3d at 91-92York v. Ass'n of the Bar of N.Y., 286 F.3d 122, 125-26 (2d Cir.), cert. denied, 537 U.S. 1089 (2002)O'Connor, 126 F.3d at 115-16.

We do not believe that the term "hired party" from Darden and Reid supports an independent antecedent remuneration requirement. The Supreme Court included the term "hired party" inDarden only in a direct quote from its decision in Reid, and the Reid Court's use of "hired party" was in the context of the "work for hire" provision from the Copyright Act. Although the Court did not define "hired party" in Reid, it did define "hiring party": "By `hiring party,' we mean to refer to the party who claims ownership of the copyright by virtue of the work for hire doctrine."490 U.S. at 739. We doubt that the Court would define "hiring party" as such while at the same time considering "hired party" to carry much more substantive weight in requiring that it be an individual who received significant remuneration for his services. Moreover, the Court's instruction to apply the common law of agency is not limited to when the individual receives significant remuneration but rather "when Congress has used the term `employee' without defining it." Reid, 490 U.S. at 739-40 (emphasis added); accord id. at 741 ("[T]he term `employee' should be understood in light of the general common law of agency."); see also Darden, 503 U.S. at 323 ("[W]e adopt a commonlaw test for determining who qualifies as an `employee' under ERISA.").

Our decision to consider remuneration as a factor when determining whether a employment relationship exists comports with Darden's instruction that, when evaluating a particular relationship, "`all of the incidents of the relationship must be assessed and weighed with no one factor being decisive.'" Darden, 503 U.S. at 324 (quoting UnitedIns. Co., 390 U.S. at 258);accord Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 450-51 (2003);Johnson, 151 F.3d at 568Ware, 67 F.3d at 578. "`[T]he extent of control . . . is not dispositive,'" and several of the factors listed in Darden and Reid relate to financial matters.Ware, 67 F.3d at 577-78 (quoting Reid, 490 U.S. at 752). 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." Rev. Rul. 87-41; accord Ware, 67 F.3d at 578. But no one factor, including remuneration, is decisive, and therefore no one factor is an independent antecedent requirement.

Mitchell H. Rubinstein

Employment Discrimination, Employment Law, Law Review Ideas | Permalink


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