When is an unpaid volunteer considered an “employee” and thus able to sue for discrimination or retaliation under the Connecticut Fair Employment Practices Act (“CFEPA”)? The answer: when the volunteer receives remuneration in the form of significant employment benefits. This is the conclusion the Superior Court recently reached in Commission on Human Rights and Opportunities v. Echo Hose Ambulance, et al . In Echo House Ambulance, the Court determined that the test applied by the federal courts for determining employment for purposes of Title VII claims, which conditions employee status upon the receipt of direct or indirect remuneration, applies in the same manner for determining employment for claims brought under CFEPA.
So what exactly constitutes direct or indirect remuneration under the federal Title VII test? While the Second Circuit has declared that the benefit derived by, or conferred upon, the would-be employee need not be in the form of a salary or wages, it has repeatedly suggested that the benefit must be of a financial nature and meet some minimum level of significance or substantiality to constitute sufficient remuneration. See e.g.; York v. Ass’n of Bar of City of New York, 286 F.3d 122, 126 (2d Cir. 2002); Pietras v. Board of Fire Commissioners, 180 F.3d 468 (2d Cir. 1999); O’Connor v. Davis, 126 F.3d 112 (2d Cir. 1997). Under this standard, benefits such as the provision of health insurance, pensions, death benefits, disability insurance, vacation or sick pay may well render someone who would otherwise be considered an unpaid volunteer an employee.
Applying the federal remuneration standard, the Court in Echo Hose Ambulance determined that an unpaid volunteer for an ambulance company was not an employee for purposes of CFEPA because the benefit cited by the volunteer, asserted opportunity for future employment arising from her volunteer status, was too attenuated and was therefore insufficient remuneration to establish the employment relationship. A question raised by the Court’s opinion is whether Connecticut courts will ultimately follow the Second Circuit Court of Appeal’s practice, at least to date, of limiting employee status to those individuals whose remuneration is of a financial nature. Instead of rejecting the Plaintiff’s proffered remuneration – the prospect of future employment – as insufficient as a matter of law due to its non-financial nature, the Court instead deemed it insufficient because of its speculative nature. While courts in other circuits have considered such non-financial benefits sufficient remuneration to establish an employment relationship, the Second Circuit has steadfastly refused to follow suit.
Whether your unpaid volunteer is an employee eligible to bring suit under CFEPA will depend upon the nature and substance of any benefits provided. If the benefits are financial, and significant, chances are they will be considered employees under the Act.