Supreme Court Narrows Definition of “Employee” For Discrimination Law

Under Connecticut law, employees are protected from discrimination and sexual harassment.  With rapid changes to the way the labor market functions, however there has been a real debate about who qualifies as an employee.  There are an estimated 1.5 million interns working across America and annually 62.6 million Americans engage in some type of volunteer activity. Interns and volunteers in many states across the country do not have protections against discrimination or sexual harassment.  Connecticut is a Paramedicstand out state in that it does have protections for interns.  Nonetheless, a recent Connecticut Supreme Court case, CHRO v. Echo Hose Ambulance, has distinguished volunteers from interns and employees that are protected by the law. The decision turned on the definition of “employee” in our state’s anti-discrimination laws. The court held that volunteers, even those working as long-term members of an organization, are not employees and therefore are not protected against discrimination.

The case began in 2015 when Brenda Puryear filed a complaint with the CHRO on behalf of her daughter.  The complaint was filed against Echo Hose Ambulance and the city of Shelton. Brenda Puryear claimed that the defendants had discriminated and retaliated against her daughter on the basis of her race and color in violation of the Connecticut Fair Employment Practices Act (CFEPA) and Title VII.

To have a claim under either CFEPA or Title VII, the claimant must be an employee. The law defines “employee” as “any person employed by an employer but shall not include any individual employed by such individual’s parents, spouse or child.” The plaintiff’s daughter was merely a volunteer with the town EMTs. While she had a set schedule, had defined duties, and could receive discipline, she was not paid for her work.  The city moved to strike the complaint because it claimed the daughter was not really an employee and therefore was not covered. The argument focused on which test the court should use to determine who is and isn’t an employee – the remuneration test, favored by the defendants, or the right to control test, favored by the plaintiff.

“The remuneration test instructs courts to ‘conduct a [two step] 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.’” Juino v. Livingston Parish Fire District No. 5, 717 F.3d 431, 435 (5th Cir. 2013). In other words, the remuneration test requires an employee actually be paid before even considering anything else.

The right to control test, on the other hand, focuses on “the hiring parties’ right to control the manner and means by which the product is accomplished [by the hired party].’’ Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751–52 (1989). The focus with that test is how much control the employer has over what, where, when and how the employee does their work

The benefit of the remuneration test is clarity and simplicity – checking a payroll record is all that is required of the first step. The benefit of the control test, however, is that it is much more realistic. If someone controls every aspect of your job but has someone else sign your check, it is hard to argue they aren’t your boss.

At the CHRO hearing, the hearing referee applied the remuneration test. Since the Complainant’s daughter did not receive direct benefits or wages, the referee dismissed the case. Both the Trial Court and the Appellate Court affirmed the referee and supported the use of the remuneration test to determine who was an employee.  The Supreme Court granted Sarah’s petition for certification to appeal limited to the question: ‘‘Did the Appellate Court properly apply the federal ‘remuneration test’ rather than Connecticut’s common-law ‘right [to] control’ test to determine an ‘employee’ under [CFEPA]?”

On Tuesday the Supreme Court determined that the remuneration test needed to be followed and, therefore, volunteers are not protected under the state and federal anti-discrimination laws and the state’s anti-sexual harassment laws since they are not paid employees.

While this is a loss for volunteer firefighters and EMTs around the state, the scope of the ruling is limited.  Unpaid interns were added to coverage under CFEPA last year in Public Act No. 15-56, an act protecting interns from workplace harassment and discrimination.  This act, which was championed by the CHRO, expanded legal protections against discrimination and sexual harassment to be inclusive of unpaid interns.  Intern is defined in the public act “as an individual who performs work for an employer for the purpose of training given that: 1) the individual is not guaranteed employment at the end of the internship, 2) the individual is not being paid, and 3) that the work provides an educational benefit.” Recall that remuneration may consist of either direct compensation, such as a salary or wages, or indirect benefits.  Unpaid interns are covered by CFEPA because the indirect, non-monetary benefits of internships can be remuneration as defined by the court in CHRO v Echo House. 

It now appears that volunteers and those who do not qualify as interns are not covered by the CFEPA or Title VII due to Echo House. The Echo House ruling does leave the window partially open for volunteers stating “a volunteer may be able to meet the remuneration test by proof of benefits in lieu of wages.” The CHRO will remain dedicated to protecting individuals from discrimination and continue to work to expand the law to be inclusive of all people.