Our Nation's Forgotten Workers: The Unprotected Volunteers

Abstract

Public policy strongly supports voluntarism as it fuels interests that are critically important to society and the health of this country, particularly in these days of ever-increasing budget cuts. It has also created many unique legal dilemmas. Unfortunately, however, the volunteer experience for the individual may not always work out. This article addresses the consequences of a failed voluntary service relationship. For instance, can a volunteer who is sexually harassed maintain a cause of action for sex discrimination under Title VII? Is a volunteer an employee with other rights? What is the definition of an employee anyway?

There is still great variation in this country with respect to which employment test should be utilized to determine whether or not someone is an independent contractor or an employee. Additionally, courts have reached conflicting decisions with respect to whether other workers, such as graduate students, are employees. Therefore, it should not be surprising that there is also great variation in the case law distinguishing between volunteers and employees. As discussed in this article, a two-step analysis should be utilized to distinguish between volunteers and employees. In general, to be an employee, the individual must (1) be hired which involves an examination of whether the individual receives some form of remuneration, and (2) have his or her work controlled by the employer.

Though there is virtually no scholarly work that analyzes the rights of volunteers in employment, the question of whether volunteers should be treated as employees is becoming an increasingly important legal issue as there are a number of recent decisions addressing this issue.See, e.g., Hallissey v. America Online, Inc., No. 99-CIV-3785, 2006 U.S. Dist. Lexis 12964 (S.D.N.Y. Mar. 10, 2006) (refusing to grant summary judgment because community leaders who serviced internet message boards and chat rooms in return for free internet access, a compact disc case, expanded web space, anti-virus software, and employee discounts could be employees under the FLSA); Lowery v. Klemm, 845 N.E.2d 1124 (Mass. 2006) (denying a state claim for sexual harassment as the plaintiff was a volunteer and not an employee).

Keywords: Volunteers, Employees, Labor Law, Employment Law

JEL Classification: K31, J50, J53, J59, J70