Unpaid volunteers make up a large part of fire and emergency services. In fact, emergency services would be crippled in many parts of the country without their participation. While the requirements of, and treatment toward, volunteers varies by locale, they should be able to perform their duties free from discrimination, harassment and retaliation, just as if they were paid employees.
In Illinios, several female members of the Antioch Rescue Squad (ARS) sued the department and Metro Paramedic Services Inc. (MPS), alleging sexual harassment and other wrongdoing under Title VII of the Civil Rights Act, which protects “employees” from such wrongdoing, and the Illinois counterpart to that law, the Illinois Human Rights Act. At issue before the court was whether the women — who were unpaid volunteers — could sue under the laws protecting employees. ARS/MPS argued that the claims had to be dismissed because they were volunteers, as opposed to employees. On Dec. 4, 2012, a federal district court judge sitting in Chicago disagreed.
In Volling v. Antioch Rescue Squad, the judge began his analysis by stating that the definition of “employee,” for purposes of the anti-discrimination laws, does not require that the individual be compensated. Rather, the proper determination is to found in the law of agency. The judge looked at such things as who had control over the individual’s services — who provided the equipment, who made the assignments, who set the skill requirements, who set the hours of engagement; where was the location of the work performed; whose vehicles were used in the performance of the work; whether the work being performed was the usual work the entity did; etc…Whether an individual is compensated or receives benefits may be considered as well, but there is no one determinative factor. While some courts, such as some on the East Coast, put more emphasis on the remuneration factor, the judge did not believe that those court decisions properly interpreted a U.S. Supreme Court decision addressing when a volunteer should be considered covered by an employment-related law.
Here, the judge found that this rescue squad functioned similarly to any other rescue squad. ARS/MPS assigned the work and the shifts, required the individuals to wear uniforms, training the individuals, had supervisors, required them to work in their stations and ambulances, and trained the women. The individuals were also subject to a probationary period, as are many employees. Given the degree of control and supervision ARS/MPS had over the women who sued, the judge said they could proceed with their claims under the anti-discrimination laws.
The take-away from this decision? Protect volunteers from discrimination, harassment and retaliation. All fire and rescue services should have a properly drafted anti-harassment/retaliation policy in place, regardless of whether their members are compensated, or the department a career, volunteer or combination agency. Volunteers and supervisors need to be educated, just the same as in career departments. This decision sends a strong signal – the courts are likely to let volunteer lawsuits proceed because discrimination needs to be prohibited and remedied. Using volunteers will not shield a department from liability for wrongdoing. What you are saving in wages and benefits, you could end up paying out in a court judgment, and then some.
Alisa Arnoff is a partner at the Chicago-based law firm Scalambrino & Arnoff, which specializes in labor and employment law.