Are Volunteers “Employees” Under FEHA?

In a just released decision denying in part the defendant’s motion to dismiss, a Federal District Court Judge for the Eastern District of California applied elements of California workers’ compensation law to find that a volunteer intern in a program run by the Nevada County Sheriff’s Department is an employee, and can pursue a lawsuit under Fair Employment and Housing Act (FEHA) for alleged sexual harassment.  In  the ruling released on October 21^st in Neronde v. Nevada County (2:10-cv-0776-JFM), the judge agreed that normally volunteers are not considered employees, noting that “compensation of some sort is indispensable to an employment relationship under the FEHA and that persons who receive no direct or indirect financial benefit for their services are not ‘employees’ for FEHA purposes.”  For workers’ compensation purposes, this is codified in California Labor Code Sec. 3352, which excludes volunteers and others who do not receive payment for their work from workers’ compensation.  Despite this code section, in Barragan v. Workers' Compensation Appeals Bd., 195 Cal. App. 3d 637 (Cal. Ct. App. 1987), the court found that a student volunteer intern at a hospital was an employee for the purposes of workers’ compensation, because in return for his time and labor, the student received valuable training, as well as course credit.

In denying the defendant’s motion for dismissal the judge agreed with the plaintiff’s argument that “FEHA intends to protect a broad class of individuals under its sexual harassment laws. In line with this intent for greater inclusion, the court holds that the definitions of ‘employee’ and ‘volunteer’ under California's workers' compensation laws should be construed with the purpose of the FEHA. In doing so, the court finds that plaintiff received credits toward graduation and community college and she learned invaluable skills in exchange for her services. Pursuant toBarragan, the court finds that plaintiff was an employee at the time of the alleged incident.”

It is unknown at this time whether the defendant will appeal the denial of the motion to dismiss.  This ruling does not mean that the defendant violated FEHA, only that the case may proceed to trial on the merits.  In Neronde the plaintiff claimed numerous causes of action including sexual harassment.  However, the court dismissed her other claims with prejudice because she failed to timely file her complaint.  The FEHA claim survived, however, as it has a longer statute of limitations. 

What this means for employers, besides the general proposition that employers cannot tolerate sexual harassment against anyone in the workplace, including volunteers, is that they may be subject to liability under the FEHA for volunteers even though they are not “employees.” The question is, do employers have to offer volunteers other protections afforded by FEHA, such as a reasonable accommodation to a volunteer suffering from a disability, or face potential under FEHA?  It seems to me, based on this decision, that the world of potential employees may have been significantly expanded.

 JAllan