Does Employment Law Apply to Volunteers?
California law forbids harassment of volunteers, employees, and others, but generally, state employment law doesn’t cover volunteers. There are exceptions, and depending on your situation, you may be considered an employee under the law and qualify for protection.
What’s your employment status? You may be told you’re a volunteer and think you’re one, but the law may say otherwise. At MJB Law Group employment lawyer can discuss whether you’re misclassified as a volunteer and, if so, your legal protections. We may pursue legal action against an organization so you can recover unpaid wages and hold them accountable for their illegal actions.
State Law Protects Volunteers from Harassment
California’s Fair Employment and Housing Act (FEHA) states that it’s an unlawful employment practice:
- For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decision making, or veteran or military status, to harass a volunteer
- Harassment of a volunteer by an employee other than an agent or supervisor shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action
- An employer may also be responsible for the acts of nonemployees concerning harassment of volunteers if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action
- When reviewing cases involving acts by nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have for the conduct of those nonemployees shall be considered
- An entity shall take all reasonable steps to prevent harassment from occurring
- Loss of tangible job benefits shall not be necessary to establish harassment
Other parts of FEHA covering hiring and firing don’t mention volunteers.
Employment Law Can Protect You if You Qualify as an Employee
Even if you’re labeled as an employee, the facts and law may indicate that you’re an employee entitled to legal protection. In a recent federal district court case in Arizona, the judge ruled that Addam Brown, who worked as a volunteer school psychologist intern at an elementary school, was a misclassified employee entitled to protection under the federal Americans With Disabilities Act (ADA).
The court applied factors from common law (law developed by the courts) to determine if there’s enough control by a potential employer over the person to classify them as an employee. Control and potential control are the critical issues regarding whether someone is an employee under the ADA.
The court considered whether:
- The organization can hire or fire the person
- The organization can set rules and regulations covering the individual’s work
- If so, to what degree the organization supervises the person’s work
- The individual reports to someone higher in the organization
- If so, to what extent the person can influence the organization
- The parties intended that the person be an employee, as stated in a written agreement or contract
- The person shares in the organization’s losses, profits, and liabilities
This isn’t all a court can look at, and no issue is decisive. Whether someone is an employee depends on all aspects of the relationship.
The court found that:
- Brown signed an agreement that included a confidentiality clause and a performance responsibilities document outlining his intern duties
- The agreement stated he was subject to “all applicable laws, School policies, and regulations” in the employee handbook
- The agreement stated the school sets the rules for Brown’s work but that the agreement was “not intended to be an exhaustive list of all responsibilities, duties, and skills required of employees who hold this position. It is our expectation that every employee will offer his/her services wherever and whenever necessary to ensure the success of the District’s goals.”
- Brown’s termination letter stated he was let go because of his “direct violation[s]” of the school district’s policies.
- Brown’s work was supervised, and he was directed to meet with his supervisor for two hours each 40-hour workweek
- The last two factors indicate that Brown was not an employee
The court said, overall, the facts of the case showed Brown was an employee due to the degree of control it exerted on him and his work. It rejected the school district’s claim that Brown must be paid somehow to be an employee because those not paid a salary or wage may still be employees under the ADA.
Contact Our Tustin Employee Misclassification Lawyers Today
Misclassification can mean the loss of essential benefits and protections, such as overtime pay, minimum wage, and workers’ compensation benefits. If you think you’re misclassified as a volunteer, contact an experienced MJB Law Group employment misclassification attorney today to discuss your options and how to protect your interests.
Contact us for a FREE case evaluation and consultation today at (949) 266-0880 or fill out our confidential contact form.
Michael J. Berry is the founder and principal attorney of MJB Law Group. His complete focus within the legal field revolves around litigation, as he solely champions the causes of employees whose labor rights have been transgressed, as well as regular individuals who have suffered an injury due to another person’s carelessness. Mr. Berry is Board Member for the Orange County Trial Lawyers Association and also a member of the California Employment Lawyers Association, Consumer Attorneys Association of Los Angeles, and Consumer Attorneys of California. Learn more about Michael here.
