Employers who believe their volunteers cannot sue them for employment-like claims take notice:  Even if a volunteer is not considered to be an employee within the meaning of wage and hour laws, it is still possible that a volunteer would be an employee for purposes of discrimination law coverage.

Federal courts are somewhat in disagreement as to when a “volunteer” may be considered an “employee” within the meaning of the ADA and/or Title VII.  Numerous courts have held that volunteers are not employees for purposes of employment discrimination.  However, at least one court has held that if a volunteer opportunity is a clear pathway to employment or the organization gives preferential hiring to past volunteers of that organization, that factor may bring a volunteer within the statutes’ coverage.  See  RAFI v. Thompson, 2006 WL 3091483 (D.D.C. 2006).  Also, if a volunteer offers services in exchange for training and employment certification, particularly when alternate means of certification are not available, there has been suggestion that that volunteer, too, may be an “employee” within the meaning of discrimination laws.  See, e.g., Haavistola v. Community Fire Co., 6 F.3d 211 (4th Cir. 1993).

Massachusetts courts, too, are willing to recognize volunteers’ lawsuits against organizations for which they are volunteering.  In Lowery v. Klemm, 446 Mass. 572 (2006), a volunteer sued for sexual harassment.  The Massachusetts Supreme Judicial Court (“SJC”) held that while volunteers do not fall within the protections afforded under the Massachusetts anti-discrimination in employment statute, Chapter 151B, they are not without recourse.  The SJC held that volunteers may bring discrimination actions under other statutes, such as the Massachusetts Civil Rights Act and/or file common law claims.  According to the SJC, “Because volunteers retain these common-law rights and remedies, our decision today does not leave employers free sexually to harass volunteers with impunity.  It may be, as the Appeals Court noted, that volunteers do not enjoy protection as extensive as that granted to students and employees.”

Organizations using volunteers should be knowledgeable on how and when discrimination laws applicable to employees might apply to their volunteers.  For guidance on volunteers’ rights and your obligations to volunteers, contact any of our attorneys.