California Fair Employment and Housing Act (FEHA) protects employees from discrimination related to protected categories (e.g., race, religion, disability) as well as from retaliatory actions of employers. FEHA also requires employers to provide reasonable accommodations to their employees. FEHA covers employers hiring five or more employees.

In order to take advantage of these protections, a worker must be considered an employee—a volunteer will not receive these protections.

Volunteers receive some protections under the Federal Volunteer Protection Act (VPA) as well as related California laws. However, such protections cover volunteers working in nonprofits and shield volunteers from lawsuits resulting from volunteers’ own negligent actions.

Volunteers may be covered under FEHA if volunteer work is necessary for future employment. And, a volunteer receiving an employment benefit may be construed as an "employee" protected under FEHA as well as Americans with Disabilities Act (ADA). However, the protections received by volunteers are definitely less than what is received by employees.

Distinguishing Between Employee and Volunteer

An "employee" is someone under an employer’s direction and control. Such control may be exercised through contract of hire, apprenticeship, or appointment.

Under California Labor Code, a volunteer is defined as someone who works for free. Such work may be performed for a charitable or civic purpose. Further, receipt of some benefits or even payments does not necessarily turn a "volunteer" into an "employee" unless such benefits and payments substitute for work compensation. Therefore, it’s not surprising that California courts seem to construe employment in terms of some type of compensation.

Does Workers’ Compensation Trigger Employment?

Let’s assume that an employer chooses to provide workers’ compensation benefits for injuries sustained during volunteer work. Does that trigger employment relationship? The answer is that "It depends." When an employer is a public entity, such a city, extending workers’ compensation may not create a employment relationship. However, when private employers provide indirect compensation, such as health insurance, a volunteer worker may acquire an employee status in the eyes of the court.

Why Seek Attorney’s Advice?

If you believe that you have experienced discrimination or retaliatory termination, you should seek attorney’s help whether you consider yourself an employee or a volunteer worker. Your own assumptions about your work status may not be accurate. An attorney will look into your fact-specific situation to assess the reach of FEHA protections in your particular case.

Employers should consult a California employment attorney to ensure they don’t misclassify employees as volunteers. Further, your "volunteers" may become "employees" even if they only expect to get some substantial indirect compensation in the future. Therefore, a consultation with a qualified employment attorney may be necessary to understand possible work relationship modifications as well as legal consequences of such changes.