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Connecticut Supreme Court: Unpaid volunteers not employees for purposes of State’s employment anti-discrimination laws

In a recently released decision, CHRO v. Echo Hose Ambulance, et al, a unanimous Supreme Court affirmed the Appellate Court’s dismissal of the CHRO’s appeal of a human rights referee’s determination that a volunteer was not an employee for purposes of Connecticut Fair Employment Practice Act, Conn, Gen. Stat. §461-60, et seq. (“CFEPA”) The issue before the Court was whether the Appellate Court properly applied the remuneration test to determine employee status.

Brenda Puryear filed a CHRO complaint against the City of Shelton and Echo Hose Ambulance (a volunteer ambulance corps) on behalf of her minor daughter, Sarah Puryear, alleging racial discrimination under both federal (Title VII) and state (CFEPA) antidiscrimination statutes. Sarah was a volunteer in the Echo Hose’s “precepting program”, but was not voted in as a member of Echo Hose Ambulance. The complaint alleges that Sarah was harassed and treated differently in terms of discipline based on her race and color.  The Human Rights Referee dismissed Sarah’s claim after applying the federal remuneration test to determine Sarah was not an employee and, therefore, not protected under either statute. The CHRO appealed and the trial court dismissed the appeal, the Appellate Court affirmed and the Supreme Court thereafter granted certification on the limited issue of whether the Appellate Court properly applied the federal “remuneration test” rather than the State’s common law “right to control” test to determine an “employee” under CFEPA.

The Court determined that the circular definition of an “employee” found in CFEPA (“any person employed by an employer”) was “unhelpful” to its analysis and followed precedent in looking to the federal court employment decisions for guidance in construing CFEPA. The federal courts employ two tests in determining whether an individual is an employee under Title VII, which uses a “virtually identical” definition of employee: The “right to control” test and the “remuneration test”.

The Supreme Court rejected the “right to control” test proposed by the CHRO, agreeing with the Second Circuit that “a test designed to distinguish employee from independent contractor is ill-suited to distinguishing employees from volunteers.”  Instead the Court held that the remuneration test – which was used to address circumstances where it was not clear whether an individual had been hired – was better suited for such a determination.

The remuneration test involves a two-step inquiry: First, as a threshold issue, a volunteer is required to show remuneration.  If remuneration could be established, then – and only then – would the court analyze the employment relationship under the agency test. The Court acknowledged that remuneration was not limited to salary or wages, but could include “indirect benefits not merely incidental to the activity performed.” What exactly that might entail is left for another day.

The Supreme Court also rejected the CHRO’s argument that the legislature’s subsequent enactment of P.A. 15-56, “An Act Protecting Interns from Workplace Harassment and Discrimination”, clarified the existing law to protect volunteers like her. The Court held that P.A. 15-56 expanded protection to a “narrowly defined class of persons – unpaid interns – to which Sarah does not belong.”