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Fifth Circuit: Volunteer Firefighters Are Not "Employees" Under Title VII

In a case of first impression, the Fifth Circuit considered whether voluntary firefighters are "employees" for purposes of Title VII in Juino v. Livingston Parish Fire District No. 5 (5th Cir. May 30, 2013).  The Fifth Circuit held that volunteer firefighters are not covered by Title VII.

The plaintiff was a volunteer firefighter who claimed that she had been sexually harassed by a co-worker.  The question before the Fifth Circuit was whether the plaintiff qualified as an employee and was thus protected by Title VII.  The Fifth Circuit summarized the law as follows:

Cases from other circuits considering the presented issue have split into two camps. The Second, Fourth, Eighth, Tenth, and Eleventh Circuits have adopted the threshold-remuneration test. Under this test, courts conduct a twostep inquiry by requiring that a volunteer first show remuneration as a threshold matter before proceeding to the second step – analyzing the putative employment relationship under the common law agency test. Remuneration may consist of either direct compensation, such as a salary or wages, or indirect benefits that are not merely incidental to the activity performed. On the other hand, the Sixth and Ninth Circuits view remuneration as only one, nondispositive factor in conjunction with the other common law agency test factors.

After discussing the various cases applying the "threshold-remuneration" test, the court summarized that test as follows:

In sum, the threshold-remuneration line of cases teaches that: (1) remuneration may consist of direct remuneration, i.e., salary or wages, or significant indirect benefits that are not incidental to the service performed, i.e., job-related benefits; (2) if there is no showing of remuneration, courts will not proceed to the common law agency test; and (3) if there is remuneration supporting a plausible employment relationship, courts will proceed to the common law agency test.

The Fifth Circuit adopted this test:

After consideration of both approaches, we adopt the thresholdremuneration test, as we find it uniquely suited to assessing a plausible employment relationship within the volunteer context. In support, we conclude that [the Second Circuit's decision in] O’Connor is persuasive, i.e., that a volunteer is distinguishable from the employee-independent contractor situation because there is a prerequisite of a “hire” in the latter.  This point is further borne out by the fact that a volunteer is generally not an “employee,” and thus no “hire” has occurred since there is no receipt of remuneration supporting an employer-employee relationship.

(citation omitted).  The court drew support from the EEOC Compliance Manual, which states that volunteers are usually not employees.

The Fifth Circuit concluded that the plaintiff was not an "employee," even though she received some minor benefits, because she did not receive "significant indirect benefits."  She was paid $2.00 per call, life insurance, uniforms and gear, and training, but the court found that this was not sufficient to make her an employee.

The Fifth Circuit's decision may be a valid interpretation of the law.  However, the decision raises a question of policy: Is it really consistent with the intent of the discrimination laws that a volunteer firefighter have no effective remedy for sexual harassment or other forms of discriminatory conduct?  However, this may be a legislative issue, rather than a judicial issue.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes