Thursday, September 8, 2011

6th Circuit volunteers gift to volunteer employees in coverage under Title VII

Lots of people work for free—volunteers, interns, students, and others all provide their time to businesses without receiving any pay in return. Last week, the 6th Circuit, in Bryson v. Middlefield Volunteer Fire Dep’t, decided whether a “volunteer” (a presumably, the other categories of unpaid workers) qualifies as an employee covered by Title VII. The trial court had concluded that Bryson, a volunteer firefighter, did not qualify under Title VII solely because the Department did not pay him.

The 6th Circuit concluded that merely looking at whether or not a volunteer is paid is insufficient. Instead, employers must also examine the degree of control exercised by the employer over the manner and means by which the work is accomplished. In evaluating the degree of control, employers must look at all of the following factors:

  • The skill required
  • The source of the instrumentalities and tools
  • The location of the work
  • The duration of the relationship between the parties
  • Whether the hiring party has the right to assign additional projects to the hired party
  • The extent of the hired party’s discretion over when and how long to work
  • The method of payment
  • The hired party’s role in hiring and paying assistants
  • Whether the work is part of the regular business of the hiring party
    Whether the hiring party is in business
  • The provision of employee benefits
  • The tax treatment of the hired party

Because Bryson expands Title VII’s coverage, this case reinforces the idea that employers should not use unpaid help without legal guidance. The DOL is looking over your shoulders. The EEOC is looking over your shoulders. Courts are looking over your shoulders. And, your unpaid help is looking over your shoulders. A misstep in how you categorize employees could be a costly mistaken on these multiple fronts.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or