When a Volunteer Becomes an Employee: the Fifth Circuit Incorrectly Determined That a Volunteer Is Not an Employee Within the Standards of Title Vii

• Publication year: 2022

48 Creighton L. Rev. 605. WHEN A VOLUNTEER BECOMES AN EMPLOYEE: THE FIFTH CIRCUIT INCORRECTLY DETERMINED THAT A VOLUNTEER IS NOT AN EMPLOYEE WITHIN THE STANDARDS OF TITLE VII

WHEN A VOLUNTEER BECOMES AN EMPLOYEE: THE FIFTH CIRCUIT INCORRECTLY DETERMINED THAT A VOLUNTEER IS NOT AN EMPLOYEE WITHIN THE STANDARDS OF TITLE VII

Steven R. Hogan II - '16

I. INTRODUCTION

Title VII of the Civil Rights Act of 1964(fn1) ("Title VII") prohibited hiring discrimination based on color, religion, sex, race, or national origin.(fn2) For an employer to be subject to the standards of Title VII, they must have a minimum of fifteen employees for each workday for twenty or more consecutive calendar weeks.(fn3) Title VII defines an employee as a person who is employed by an employer.(fn4) Courts have applied various tests to determine whether an individual is an employee under Title VII.(fn5)

In Juino v. Livingston Parish Fire District No. 5,(fn6) the United States Court of Appeals for the Fifth Circuit addressed who is classified as an employee.(fn7) The Fifth Circuit applied the threshold-remuneration test to evaluate whether a volunteer firefighter could be considered an employee under the standards of Title VII.(fn8) The court determined that under the Title VII provisions, a volunteer could not be considered an employee.(fn9)

This Note will first review the facts and holding of Juino.(fn10) This Note will then analyze the relevant case law surrounding Title VII and the employer-employee relationship.(fn11) This Note will assert that the Fifth Circuit incorrectly applied the threshold-remuneration test to determine the status of a volunteer within Title VII.(fn12) This Note will then demonstrate that the United States Court of Appeals for the Sixth Circuit correctly applied common law principles to determine the status of a volunteer under Title VII.(fn13) Finally, this Note will conclude that the Fifth Circuit incorrectly determined that Rachel Juino was not an employee within the standards of Title VII.(fn14)

II. FACTS AND HOLDING

In Juino v. Livingston Parish Fire District No. 5,(fn15) Rachel Juino volunteered as a firefighter for the Livingston Parish Fire Protection District No. 5 ("District 5") beginning in November 2009.(fn16) Over the course of her tenure with District 5, John Sullivan, a fellow member of the volunteer firefighter team, repeatedly sexually harassed Juino.(fn17) Juino claimed that Sullivan would often call her personal phone and pursue her while she was in the department.(fn18) According to Juino, Sullivan would also make false statements to fellow firefighters that he had slept with her.(fn19) In one instance, Sullivan allegedly forcibly shook Juino's head back and forth and proceeded to rip the air pack valve off of her facemask during a dispute.(fn20) This violent act severely troubled Juino.(fn21)

Juino reported the various incidents of harassment to her superiors, Captain Charles Weaver and Fire Chief Elmer Knab.(fn22) Neither Knab nor Weaver took action to remedy the situation or to assure Juino's safety.(fn23) Juino stated that Knab told her if she did not stop making complaints about Sullivan's actions, she should just leave the fire department.(fn24) Juino decided to leave her position with District 5 on April 2, 2010, citing Sullivan's harassment as the reason.(fn25)

Juino filed a claim with the Equal Employment Opportunity Commission (the "EEOC") and sought a right-to-sue letter.(fn26) The EEOC did not issue Juino a letter within the required six-month time frame, which led her to file a complaint against District 5 for violating Title VII of the Civil Rights Act of 1964(fn27) ("Title VII") in the United States District Court for the Middle District of Louisiana.(fn28) Juino's complaint included claims of sexual harassment and retaliation for reporting sexual harassment.(fn29)

District 5 moved for partial summary judgment asserting that District 5 did not meet Title VII's minimum standard of fifteen employees.(fn30) Alternatively, District 5 argued that assuming it met the fifteen-employee minimum standard, Juino was a volunteer, not an employee.(fn31) Juino responded to the motion, stating that District 5 qualified as an employer under Title VII based on its roster of eighty-three individuals who received benefits from District 5.(fn32) In her affidavit she cited she received benefits such as minimal compensation, life insurance, training, and emergency equipment and uniforms, qualifying her and other volunteer firefighters as employees.(fn33)

The district court considered District 5's motion for partial summary judgment as a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because the minimum employee standard was a jurisdictional issue.(fn34) Examining the merits of the case, the district court recognized that the United States Court of Appeals for the Fifth Circuit had not adopted a test for determining the employer-employee relationship.(fn35) The district court had a preference, however, for the threshold-remuneration test as applied in O'Connor v. Davis,(fn36) a decision from the United States Court of Appeals for the Second Circuit addressing the employment status of an intern.(fn37) The threshold-remuneration test adopted by the district court examines whether the volunteer has received sufficient compensation that would manifest an employment relationship.(fn38) The district court also analyzed Juino's claim under the economic realities test, also referred to as the common law control test, which examines how an employer exercises authority over volunteers or independent contractors.(fn39) After analyzing both tests, the district court determined that Juino was not an employee under the Title VII standards.(fn40)

On Juino's appeal to the United States Court of Appeals for the Fifth Circuit, the court noted that it had not developed a test for determining an employee under the Title VII standards.(fn41) The Fifth Circuit examined the different approaches other circuits have taken and determined that the threshold-remuneration test was the proper approach to adopt.(fn42) The court concluded the threshold-remuneration test best addressed the employment relationship with regards to volunteers.(fn43)

The Fifth Circuit affirmed the district court's ruling and determined that Juino was not an employee under the Title VII standards.(fn44) The Fifth Circuit reached this conclusion by applying the threshold-remuneration test and specifically emphasizing that Juino did not receive compensation for her services with District 5.(fn45) The Fifth Circuit also determined that any benefits Juino received from her service with District 5 were incidental to being a volunteer and not significant enough to deem her an employee.(fn46) The court stated that it was unnecessary to apply the common law control test because there was not a plausible employment relationship between Juino and District 5.(fn47)

III. BACKGROUND

A. THE UNITED STATES SUPREME COURT ADOPTED THE COMMON LAW "AGENCY" TEST IN NATIONWIDE V. DARDEN

In Nationwide Mutual Insurance Co. v. Darden,(fn48) the United States Supreme Court employed a common law agency test to determine how the term "employee" under the Employee Retirement Income Security Act(fn49) ("ERISA") should be defined.(fn50) In Darden, Robert Darden, an insurance salesman, formed an agreement with Nationwide Mutual Insurance Company to exclusively sell Nationwide insurance policies.(fn51) In exchange for Darden's promise to exclusively sell Nationwide products, Nationwide promised to pay Darden commission on sales and enroll him in the company retirement plan.(fn52) As part of the agreement, Darden would relinquish his right to the retirement plan under certain circumstances, such as if within one year of leaving Nationwide and within twenty-five miles of his prior work location, he sold insurance policies for competitors of Nationwide.(fn53)

After eighteen years of business together, Nationwide ended its contractual relationship with Darden.(fn54) One month after Nationwide terminated the contract, Darden returned to working as an independent agent, where he sold insurance policies of Nationwide's competitors.(fn55) Upon learning of his activities, Nationwide disqualified Darden from receiving benefits from his retirement plan.(fn56) Darden sued to receive his benefits, claiming that they were nonforfeitable because they had already vested.(fn57)

Darden sued under 29 U.S.C. § 1132(a), which allows a plan participant to enforce the provisions of ERISA.(fn58) Darden's claim would only prevail if he was Nationwide's employee, a term defined under ERISA as a person employed by an employer.(fn59) The United States District Court for the Eastern District of North Carolina granted summary judgment for Nationwide on the ground that Darden was not a proper plaintiff under ERISA.(fn60) The court applied the common law agency test and determined that Darden was an independent contractor, not an employee.(fn61)

The United States Court of Appeals for the Fourth Circuit reversed the district court's ruling, reasoning that the strict definition of employee was inconsistent with ERISA's purpose and policy.(fn62) The Fourth Circuit created a new three-part test when it determined that an ERISA participant can be defined as an employee by showing: (1) a reasonable expectation to receive...