In Estrada v. City of Los Angeles, Volunteer NOT an Employee Under FEHA Because a Volunteer is Not Paid Wages (Remuneration)

Fair Employment and Housing Act of California (FEHA) provides considerable protections to employees from discrimination due to a person’s

– Age (40 and over)

– Ancestry

– Color

– Religious Creed (including religious dress and grooming practices)

– Denial of Family and Medical Care Leave

– Disability (mental and physical) including HIV and AIDS

– Marital Status

– Medical Condition (cancer and genetic characteristics)

– Genetic Information

– National Origin (including language use restrictions)

– Race

– Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)

– Gender, Gender Identity, and Gender Expression

– Sexual Orientation

To receive this protection, however, a person has to be an employee under FEHA.  Whether a person is an employee depends on many factors.  A person who is an employee for purposes of workers compensation, may not be an employee for purposes of FEHA.  The Court in Estrada v. City of Los Angeles clarified this.

While FEHA contains exclusions for who is not an employee, it does not itself contain a definition of who is an employee.  The Court in Estrada looked at both the regulations promulgated by the Department of Fair Employment and Housing as well as Title VII (Federal Law) to determine whether a volunteer is an employee under FEHA.  The DFEH 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).)

Moreover, the Court stated that whether a person is paid wages or is unpaid is important to determining whether a person is an employee under FEHA as such is a requirement under Title VII.  The Court also noted that there is nothing in the legislative history or within FEHA that would indicate departing from the requirement of some sort of compensation to form an employment relationship.

In Estrada, “pursuant to the language of L.A. Administrative Code section 22.227, Estrada was “appointed” to his volunteer position by the Chief of Police. He was not appointed as an employee.  L.A. Administrative Code section 22.227, that deems a volunteer an employee explicitly for the purposes of extending worker’s compensation benefits to a volunteer does not change the fact that the volunteers serve without remuneration i.e. they are not paid wages.  Therefore, Plaintiff in Estrada was not an employee of the City of Los Angeles.