California Appellate Court Distinguished “Volunteer” from “Employee”

On July 24^th, the California Appellate Court ruled on what distinguishes an “employee” from a “volunteer” for purposes of FEHA discrimination claims in Estrada v. City of Los Angeles (2013) — Cal.App.4th–. The trial court held held that Estrada, a former volunteer Reserve Police Officer for the City, was not an employee, but merely a volunteer. The Appellate Court affirmed.

Estrada became a reserve officer for the Los Angeles Police Department (LAPD) in 1990. While reserve officers are volunteers who are not compensated for their time, the City deems such officers “employees” for the limited purpose of extending workers’ compensation benefits to them in the event they are injured while performing their duties. This exception is codified in the Los Angeles Administrative Code, which states that such volunteer officers shall not be deemed an employee but for this one purpose- to receive workers’ compensation benefits. In his application, Estrada acknowledged that he was not a regular salaried officer and was not entitled to compensation.

In 1995 and 1996, Estrada was involved in a traffic collision and sustained leg, back, and shoulder injuries. In both cases he obtained workers’ compensation benefits. In 2004, the Food and Drug Administration (FDA) served a search warrant on Estrada’s personal nutritional supplement company which was followed by the filing of a complaint by the Department’s Internal Affairs Division. The complaint alleged that Estrada illegally sold certain products. Pending an outcome of the complaint, Estrada was suspended from his duties with the LAPD. Following the administrative proceedings, the LAPD terminated Estrada in 2007.

In 2009, Estrada filed suit against the City alleging disability discrimination under FEHA. The primary issue to be determined was whether Estrada was an employee or a volunteer for purposes of FEHA.

The Court of Appeals held that an uncompensated volunteer is not an employee. While only employees have the right to bring action under FEHA against their employers, the statutory definition of “employee” is not clear in determining who is an employee, as it merely excludes certain classes of individuals from employee status. The Court then looked at the definition of “employee” contained in the Department of Fair Employment and Housing regulations which defines an employee as “[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” (Cal.Code Regs., tit. 2, § 7286.5, subd. (b).) The Court went on to analyze other California cases, as well as out of state cases, and determined that Estrada’s status as an uncompensated volunteer officer did not render him an employee for purposes of FEHA.

Furthermore, the Court determined that Estrada’s receipt of workers’ compensation coverage and benefits did not alter his status as a volunteer. Pursuant to the terms of the Los Angeles Administrative Code, reserve officers were expressly designated as volunteers and would not be deemed employees for any purpose other than to receive workers’ compensation benefits. This provision was provided by the City despite the fact that the Workers’ Compensation Act excludes from the definition of employee “[a]ny person performing voluntary service for a public agency or a private, nonprofit organization who receives no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses.” (Lab.Code, § 3352, subd. (i).) The City’s decision to provide such benefits to its volunteers in the event they sustained an injury did not convert the volunteers to employees.

The Court held that Estrada was not an employee, but merely a volunteer, for purposes of FEHA and affirmed the trial court’s decision.

This case is beneficial to employers, as it clarifies the differences between a volunteer and employee, as well as the rule that some benefits may be provided to a volunteer without elevating the volunteer’s status to that of employee. However, it is important that employers act within the legal limitations to ensure their volunteers are properly classified and not inadvertently converted to employee status.

Jampol Zimet LLC