In Bryson v. Middlefield Volunteer Fire Department, the Court analyzed the issue in the context of Title VII claims. The issue was actually whether the volunteers counted toward the 15 employees generally required for an employer to be covered by Title VII.'
This much is settled law under Supreme Court precedent:
In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are 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; and the tax treatment of the hired party.Got all that? It provides some useful factors but certainly doesn't answer our main question. And good luck predicting an outcome when the factors cut both ways!
Some courts have held that the Supreme Court's use of "hired party" requires that individuals receive "substantial benefits" or "significant remuneration" for the work performed to be considered employees. The Sixth Circuit disagreed, holding that remuneration is a factor in determining whether a volunteer is an employee but not an independent hurdle.
Bottom line: Check case law in your jurisdiction, and even then you may just be left with a list of a bunch of factors and a shot in the dark. Perhaps the circuit split on this issue will convince the Supreme Court to take a look. We shall see...
HT: Ellen Dannin, LERA Labor and Employment Law News October 2011.
Image: Public domain, Volunteer Fire Department in Action, Terry, Montana by Arthur Rothstein (1939).
Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.