After the Sixth Circuit held that a Plaintiff need not make a threshold showing that they were compensated to make a prima facie showing that he is an employee for purposes of Title VII of the Civil Rights Act of 1964 (“Title VII”), Bryson v. Middlefield Vol. Fire Dep’t, Inc., 656 F.3d 348, 353-54 (6th Cir. 2011), the question has remained: how broad are the conditions under which a volunteer be considered an employee, and thus have standing under Title VII? Last month, in Marie v. Am. Red Cross, No. 13-4052, slip op. (6th Cir. Nov. 14, 2014), the Court held that such conditions were very narrow indeed.
In Marie, two Plaintiff nuns had been long-term disaster relief volunteers with the First Capital District Chapter of the American Red Cross (“Red Cross”) and the Ross County (Ohio) Emergency Management Agency (“RCEMA”). Id., p. 2. They did not receive compensation or health insurance, but were eligible to receive workers compensation from both organizations and to participate in the Red Cross’s life insurance program. Id., pp. 3, 5. Despite receiving positive reviews, the nuns were denied promotions within the Red Cross which, while not entitling them to pay, would have given them increased responsibility. Id., pp. 3-4. The nuns were also terminated as volunteers with RCEMA after expressing dissatisfaction with the Executive Director’s leadership. Id., p. 5. In their lawsuit, the nuns alleged religious discrimination, retaliation, and harassment. Id., p. 6.
Finding that the nuns were not employees of either the Red Cross or RCEMA, the trial court granted their motions for summary judgment. Id. In arriving at that decision, the trial court relied on the thirteen factors set out by the Supreme Court in Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992), to determine whether an individual is an employee or independent contractor. The trial court applied these Darden factors to determine whether the nuns, as volunteers, could be considered employees. Marie, pp. 7-8. The trial court followed the Sixth Circuit’s holding in Bryson and did not use remuneration and related factors (e.g., employee benefits and tax treatment) as dispositive or categorically more important than any of the other factors in the Darden analysis. Id., p. 9, citing Bryson, 656 F.3d at 354. The trial court nonetheless found that when analyzing all the Darden factors, there was no genuine issue of material fact as to whether the nuns were employees. Id., p. 6.
On appeal, the nurses claimed that the trial court erred by failing to treat the remuneration factors as less categorically important because they were volunteers. Id., p. 9. The Sixth Circuit rejected that argument, holding that varying the factors to make them less important in the volunteer context was no more appropriate than other circuits’ decision to “alter the test in such a way as to make remuneration categorically more important.” Id. Rather, trial courts should engage in a pragmatic analysis, focusing on the factors that are most useful in determining an individual’s employment status based on the type of work at issue or the statute under which the lawsuit is brought. Id., p. 10.
Having set out this pragmatic approach, the Court nonetheless determined that “[t]he factors most closely related to remuneration and financial matters . . . are particularly relevant here.” Id. The Court found that the nuns’ lack of compensation, the fact that the Red Cross and RCEMA did not provide traditional employment-related benefits (e.g., medical, vision, or dental insurance), and that the nuns never filled out tax forms or paid taxes as a result of their volunteer work weighed against a finding that they were employees. Id., pp. 11-13. The Court also found that the eligibility for workers’ compensation and life insurance was incidental to their volunteer status, rather than valuable consideration for their service. Id., p. 12. Having determined that none of the other Darden factors provided sufficient weight for a finding that they were employees, the Court upheld the grant of summary judgment in favor of the Red Cross and RCEMA. Id., pp. 14-17.
The Marie Court’s decision to focus remuneration and its related factors as the most relevant in determining whether the nuns were employees raises the question of how often, if ever, the outcome would be different using the Bryson approach versus requiring a plaintiff to make a threshold remuneration showing. Nonetheless, as the opinion noted, the rejection of remuneration as a categorical factor in determining employment status under Title VII puts the Sixth Circuit at odds with the Second, Fourth, Eighth, Tenth, and Eleventh Circuits. Id., pp. 8-9, n.2 (citing Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 435 (5th Cir. 2013). The circuit split provides the Supreme Court the opportunity in the future to address a significant employment law issue.