What Employers Should Know about the FMLA and Same-Sex Marriages under New Department of Labor Rules

After the 2013 Supreme Court decision in United States v. Windsor, federal agencies have been moving to align federal policies and procedures with the holding of that case. The Court held, basically, that same-sex marriages performed in states where those marriages are legal are valid, legal marriages for purposes of federal law. To that end, the Department of Labor (“DOL”) promulgated a final rule on February 25th, 2015 that revised the regulatory definition of the word “spouse” to include same-sex spouses from legal marriages to eligible employees for purposes of the Family and Medical Leave Act (“FMLA”). The final rule becomes effective on March 27th, 2015.

Wedding Rings 3DFMLA provides unpaid, job-protected leave to eligible employees of covered entities for certain family or medical reasons. (For more on basic FMLA eligibility, please view this earlier post on the subject.) The employee then may use this leave to care for an ill spouse or family member, so the definition of spouse is crucial in this instance.

The DOL’s Final Rule makes two specific changes to FMLA regulations. First, the rule’s definition of spouse now expressly includes an individual in a lawfully-recognized same-sex marriage. The rule also recognizes spouses from lawful common law marriages and marriages performed outside the U.S. if the marriage could have been entered into in at least one state.

The second change will likely be more controversial – the DOL has changed the definition of spouse from a “state of residence” rule to a “place of celebration” rule for purposes of the validity of the marriage.[1] The import of this is that a court will look to the law of the location of the celebration of the marriage to determine its validity, rather than to the state of residence of the parties. In practical terms, this means that an eligible employee with a same-sex spouse who resides in a state where same-sex marriage is not currently legal will be eligible for FMLA leave to care for that spouse if their marriage was valid in the place it was celebrated.

This development may come as a surprise to employers in states where same-sex marriage bans are currently in effect, such as Kentucky. Employers accordingly should review their FMLA policies and train staff to conduct appropriate inquiries into the validity of marriages of same-sex employees when FMLA leave is triggered. If you need help reviewing your FMLA policies or creating a training plan for compliance with the new FMLA rules, contact that the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Preston Worley

Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached at pworley@mmlk.com or at (859) 231-8780.

This article is intended as a summary of  state and federal law and does not constitute legal advice.

[1] 29 CFR §§ 825.102 and 825.122(b)

E-Cigarettes and Workplace Smoking Policies: To Ban or Not to Ban, that is the Question

Woman Smoking With Electronic CigaretteSmoking in the workplace is slowly becoming an antiquated notion. Federal and state laws ban smoking in some places, and an increasing patchwork of local ordinances decreases the availability of indoor and even outdoor smoking in some circumstances. Complicating matters, as it usually does, is the rise of new technology that straddles the line between permissible and impermissible conduct – the e-cigarette. The question employers now have to struggle with is whether these devices, which purport to alleviate the harmful effects of smoke on both the user and those inhaling second-hand, should fall under broad workplace bans on smoking.

As a preliminary matter, local smoking ordinances that explicitly include e-cigarettes provide the easiest answers. For instance, Lexington, Kentucky, amended an indoor smoking ban to include electronic cigarettes as part of its ban.[1] However, other local ordinances that have enacted smoking bans that do not exclude e-cigarettes pose a more difficult challenge. Employers in these instances should err on the side of caution and assume e-cigarettes are included in the smoking band unless specifically excluded.

In workplaces that are not under a general legal ban on smoking, however, policies on smoking in the workplace are still largely up to the employer – there is no law that prohibits a workplace from banning e-cigarettes. Employers can regulate many aspects of employee behavior such as cellphone use or internet surfing, and workplace anti-smoking policies fall under these types of activities. When an employer chooses whether to allow e-cigarettes in the workplace, it should communicate the decision explicitly to the employees. A direct statement either way is necessary to clarify policy, which is especially important in light of antidiscrimination laws that protect smokers in Kentucky.

Under the law of Kentucky and a few other states, smokers are a protected class of purposes of hiring, firing and other employment actions. While these provisions have not been tested as to e-cigarettes, employers should be keenly aware that adverse employment decisions taken against e-cigarette users because of e-cigarette use outside the course of employment could very well run afoul of these antidiscrimination laws. These laws do, however, provide that the employee must comply with workplace policies regarding smoking, so clarity is key. Employers should also take care when considering an absolute ban on smoking of any kind during the workday itself – those with an addiction to nicotine could potentially trigger protections of the Americans with Disabilities Act that require reasonable accommodation on the part of an employer.

If you need help in determining how your company should treat the use of e-cigarettes in the workplace, contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Luke Wingfield Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

[1] Lexington-Fayette Urban County Government, Ky., Code of Ordinances §§14-97 to14-104 (2003 – Amended 2008, 2014)

Is a Company’s Release of Claims a Form of Retaliation under Federal Anti-Discrimination Laws? EEOC v. Allstate

The EEOC may have taken enforcement of anti-retaliation provisions of antidiscrimination laws a step too far the Third Circuit ruled in February, and companies transitioning a work force from employees to independent contractors should be pleased at the results. EEOC v. Allstate drew a line between what now counts as retaliation by a company in the face of federal antidiscrimination laws and what is merely a post-termination transaction between an employer and an employee.

The case has a convoluted backstory, but it boils down to a few simple elements. Allstate began changing the employer-employee model of its company in the nineties, and in 1999, it chose to move to an “Exclusive Agent” model whereby its agents became independent contractors rather than employees. It terminated its remaining agent employees, offering them one of four choices in the termination, one of them being a continued business relationship with the company as an independent contractor. To take this option however, Allstate required that the terminated employee sign a waiver of all claims relating to his or employment against Allstate, including federal antidiscrimination laws. Several employees filed charges with the EEOC, which sued Allstate under the theory that the requirement of the waiver of claims constituted a form of retaliation under the same antidiscrimination laws. The underpinning of this claim was that the waiver constituted a withholding of the privilege of the employment – the ability to continue a career with Allstate – if the employee refused to release all claims. Employees who refused to sign the waiver were involved in “protected opposition activity”[1] under the EEOC’s theory, and Allstate’s refusal to continue a relationship with them constituted retaliation. The District Court and the Third Circuit disagreed.

Hand With Pen And Eyeglasses Over AgreementThe crux of the opinion is that a basic tenet of employment law is that “employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled.”[2] The overriding factor here is that the company terminated the employees – their direct employment would not continue. They were, however, being offered a chance to work with the company in a different way. This wasn’t a benefit of employment with the company, the court reasoned, but a post-termination benefit extended by the company given as consideration for the waiver of claims.

The court’s holding makes sense in light of the anti-retaliation provisions of antidiscrimination laws themselves. These provisions are designed to protect classes of individuals from improper retaliation when an employee performs some form of protected activity, such as filing a claim of discrimination against the employer or participating in an investigation. There are circumstances where a case similar to Allstate might trip these protections, for example where a company perceives a potential series of claims under antidiscrimination laws and therefore requires all employees to sign a waiver of claims or lose their jobs. That example is far closer than the Allstate case to a textbook definition of retaliation. Of course, the EEOC has already issued guidance on this subject[3], stating that protected rights of employees are non-waivable, as employers may not interfere in any way with the protected rights of employees. The EEOC has consistently maintained that these waivers are impermissible, but the Third Circuit has drawn a line on this presumption when the waiver occurs after the termination of employment and where the company confers a benefit on the signer he or she is not otherwise entitled to.

Employers (in the Third Circuit, at least) can read this case as a bit of pushback against the EEOC’s interpretation of waivers of claims, as well as a suggestion that post-termination dealings with employees might have more breathing room than previously thought. For more information on the EEOC’s interpretation of waiver of claims and how they affect employers, please contact the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Luke Wingfield Luke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.

[1] EEOC v. Allstate Ins. Co., 2015 U.S. App. LEXIS 2330, 1 (3d Cir. Pa. Feb. 13, 2015) at 9, citing the District Court opinion

[2] Id. at 12

[3] EEOC Notice No. 915.002 (4/10/97)

What Employers under Collective Bargaining Agreements Should Know about the Decision in M&G Polymers v. Tackett

Recently, the United States Supreme Court undertook a significant course-correction in the vesting of retiree health benefits under collective bargaining agreements (“CBAs”). In January of this year, the Supreme Court decided M&G Polymers USA, LLC v. Tackett, and unanimously struck down three-decades-old precedent from the Sixth Circuit. Known as the “Yard-Man inference” from the case that first created the rule, UAW v. Yard-Man, Inc., the Sixth Circuit established an inference that retirement health care benefits were intended to vest for life, unless there was clear language to the contrary in the CBA. In a clear win for employers, the Supreme Court determined that such a presumption was in clear contradiction to basic principles of contract law.Closeup of Management and Labor handshake in front of building a

“Vested” benefits are retirement benefits to which an employee has a nonforfeitable claim, and thus, is entitled to keep and are not subject to change. Courts have long struggled with how to interpret CBAs that provide retiree welfare benefits, but are silent as to the duration of these benefits. Specifically, the issue before the Supreme Court in M&G Polymers was whether retiree health care benefits survive the expiration of a collective bargaining agreement.

Federal employment laws such as the Employee Retirement Income Security Act (“ERISA”) and the Labor Management Relations Act (“LMRA”) do not provide guidance as to how these benefits vest in this circumstance. ERISA, for example, requires pension plan benefits to vest after a certain number of years, but is silent as to what happens under a CBA. The Sixth Circuit solved this problem by inferring that a CBA intends to vest retiree benefits for life upon the employee’s retirement, absent clear language to the contrary. However, other federal circuits generally rejected the Yard-Man inference, requiring affirmative language in the CBA evidencing an intent for retiree health care benefits to vest.

Settling the matter once and for all, the Supreme Court expressly rejected the Sixth Circuit’s Yard-Man inference, stating, “We disagree with the Court of Appeals’ assessment that the inferences applied in Yard-Man and its progeny represent ordinary principles of contract law. As an initial matter, Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements. That rule has no basis in ordinary principles of contract law. And it distorts the attempt ‘to ascertain the intention of the parties.’” In sum, the Supreme Court took issue with the idea that courts would construe ambiguous language in CBAs to create lifetime obligations for employers.

This case finally provides courts in the Sixth Circuit, and elsewhere, guidance on the proper interpretation of ambiguous language in CBAs, and enables employers and unions to more effectively bargain over retiree health benefit terms Not only does the Supreme Court’s decision resolve a circuit split, giving consistency to employers who operate across different circuits, it also brings durational clauses in CBAs back into consideration to determine the terms of the agreement between the parties. Courts must now use ordinary contract principles when interpreting a CBA, and courts may not infer that benefits vest in the absence of specific language to that effect.

This is a monumental change in Sixth Circuit jurisprudence, and all employers in Kentucky, Ohio, Tennessee, and Michigan should watch this case on remand. Employers who have erred on the side of caution and assumed the Yard-Man inference applied to their own CBAs might now be able to review those agreements under a lesser burden. If you need to take a fresh look at your CBA under the new rules, do not hesitate to contact the attorneys of McBrayer for assistance in determining your obligations.

Amanda StubblefieldAmanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

Must Gluten-free Be Free? What You Should Know About Celiac Disease and the ADA

Restaurants nationwide are beginning to offer gluten-free alternatives to regular menu items. This is welcome news to those long suffering from celiac disease, a chronic and serious immune reaction to eating gluten, a protein that is found in wheat, barley and rye. The National Foundation for Celiac Awareness cites a statistic that one out of every 133 Americans has celiac disease. While that number seems small, that means that a busy restaurant will likely encounter at least one customer with celiac disease every few days at the least, and quite often daily. Many restaurants that do provide gluten-free options, however, charge an added fee for the dish. This raises a few important topics of note for those with celiac disease – whether celiac disease is a “disability” that requires accommodation under the American with Disabilities Act (“ADA”), whether a restaurant must provide a gluten-free dish as an accommodation, and finally, whether it may charge an added fee for the accommodation.

Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations. Restaurants open to the public fall squarely within this rule, for instance. A disability under the ADA is any mental or physical impairment that substantially limits a major life activity. As to whether celiac disease is considered a disability for ADA purposes, the Justice Department of Justice (“DOJ”), the department in charge of enforcing Title III of the ADA, has already answered in the affirmative. In 2012, the DOJ entered into a settlement with Lesley University, a college in Cambridge, MA that requires the college’s meal plan to provide gluten-free and allergen-free food options.

As to the question of whether all public accommodations must serve gluten-free food, the DOJ has an answer as well: No. The meal plan at issue in the Lesley University situation was a mandatory meal plan for all students living on campus. Students were required to eat the food, so the ADA required a reasonable modification to the plan to accommodate students with celiac disease. While colleges with meal plans should take note of this circumstance, restaurants that serve the public aren’t under the same obligations. Populations that have ready access to other sources of food aren’t likely to fall under the same requirement as the college at issue here.

Finally, the question now becomGluten Free Stampes whether restaurants that do serve gluten-free alternatives and charge an extra fee for them are in violation of the ADA for charging those with celiac disease a premium. This is the subject of a current California class-action lawsuit against P.F. Chang’s, which offers gluten-free food for a $1 surcharge. The argument behind the lawsuit is that the added surcharge has a discriminatory effect against those with the disease. Some commentators have likened this to installing a wheelchair ramp and charging for the privilege of using it. The restaurant chain has defended the practice, stating that the higher costs of specialty ingredients and separate preparation areas necessitate the added surcharge.

For now, the permissibility of the added surcharge on gluten-free items is an open question, but all eyes are on California for the answer. For more information on what accommodations the ADA requires of employers and others with regard to celiac disease and other disabilities, contact the attorneys of McBrayer.

Amanda StubblefieldAmanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.

The Law of Mandatory Flu Shot Requirements

The issue of whether United States citizens could be compelled to submit to vaccinations has been the subject of litigation since small pox was an epidemic threatening the health and well-being of the country in the early 1900s. In Jacobson v. Massachusetts, citizens challenged a Massachusetts state law requiring all persons over the age of 21 to be vaccinated against small pox. 197 U.S. 11 (1905). They argued that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” Id. at 26. The United States Supreme Court disagreed, finding “a real and substantial relation to the protection of the public health and safety” and noting that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id. at 31, 25. The Court did note, however, that this power should not be exercised in such a manner as to be arbitrary or beyond what is necessary for the safety of the public. Id. at 26.

Doctor Making Insulin Or Flu VaccinationSubsequently, the Supreme Court upheld similar mandatory vaccination requirements enforced as a prerequisite for school enrollment. Zucht v. King, 260 U.S. 174, 177 (1922). Pursuant to these powers, a few states have also enacted requirements for influenza vaccinations for health care workers. See CENTERS FOR DISEASE CONTROL AND PREVENTION, STATE IMMUNIZATION LAWS FOR HEALTHCARE WORKERS AND PATIENTS (current as of December 2013), http://www2a.cdc.gov/nip/StateVaccApp/ statevaccsApp/default.asp. See generally Abigale L. Ottenberg, Joel T. Wu, and Gregory A. Poland, et al., Vaccinating Health Care Workers Against Influenza: The Ethical and Legal Rationale for a Mandate, 101 Am. J. P. Health 212-216 (2011).

Mandatory flu vaccination requirements are not exclusive to state and local government directives. Two somewhat recent cases addressed whether private entities could impose upon health care workers the requirement that they receive the flu vaccine. First, in Mason Hospital v. Washington State Nurses Association, the Ninth Circuit upheld an arbitrator’s decision to strike down a hospital directive that all nurses must receive the flu vaccination. 511 F.3d 908 (9th Cir. 2007). The reason for this decision was that the requirement was not implemented in accordance with the nurses’ collective bargaining agreement. Id. Second, in Chenzira v. Cincinnati Children’s Hospital Medical Center, a receptionist objected to a hospital’s mandatory flu vaccination policy on the grounds that it violated her vegan dietary restrictions, which were as closely held to her as though they were religious. S.D. Ohio No. 1:11-CV-00917 (Dec. 27, 2012). The court denied a motion to dismiss, finding that the plaintiff had a plausible claim for religious discrimination. Id. Finally, though not a court case, the Equal Employment Opportunity Commission has stated that employees with certain disabilities or religious beliefs should be exempt from mandatory flu vaccination requirements imposed on their employees. See www.eeoc.gov/facts/pandemic_flu.html -48k-2009-10-21.

Therefore, it appears that there is no general constitutional right that would prohibit someone from being compelled to be vaccinated for influenza. However, the requirement must still be implemented and enforced in accordance with other rights of employees or vendors. For example, if the requirement ran afoul of a contract with the hospital or an individual’s disability or religious belief, courts would be unlikely to enforce it. Finally, some states do provide workers with the ability to opt out by law. However, it does not appear that Kentucky is counted among that number. CENTERS FOR DISEASE CONTROL AND PREVENTION, STATE IMMUNIZATION LAWS FOR HEALTHCARE WORKERS AND PATIENTS.

D. TrimbleAndrew H. Trimble is an associate in the Lexington, Kentucky office. Mr. Trimble focuses practice on general litigation, employment law and criminal defense. Mr. Trimble can be reached at (859) 231-8780, ext. 136 or atrimble@mmlk.com.

Nuns, Firefighters and Title VII: Are Volunteers Eligible for Protection?

Volunteerism is a staple of American life. According to the Corporation for National and Community Service, 62.6 million Americans volunteered nearly 7.7 million hours in 2013, adding up to an estimated value of $173 billion. Organizations such as the Salvation Army, the Red Cross, and Habitat for Humanity depend on volunteers to serve the communities in which they live. But even beyond not-for-profit charitable organizations, for-profit businesses routinely open their doors to students and others who are willing to file, prepare mailings, or shred documents in exchange for some experience to put on their resume.

Thus, the odds are that at some point in your life – out of necessity, practicality, or for good will – you will either be a volunteer or take on volunteers in your office. But what happens when a volunteer believes that she has been discriminated against in the course of her service? Are volunteers protected by employment discrimination laws such that the organizations with which they are volunteering may be held liable for workplace discrimination? Recent law suits from volunteers have forced courts around the country – and most recently in the Sixth Circuit – to address these issues and provide clarity for volunteers and employers alike.

Title VII clearly makes it unlawful for employers to discriminate against employees because of that employee’s race, color, religion, sex or national origin. 42 U.S.C. §2000e–2(a)(1). However, the statute’s definition of “employee” (“an individual employed by an employer”) has left open the question of who the law is designed to protect. 42 U.S.C. §2000e(f). In absence of more specific direction from Congress, the United States Supreme Court found “that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-323 (1992). The common law agency doctrine recognized the following thirteen factors:

  1. Employer’s control of worker;
  2. Level of skill required;
  3. The source of the tools used;
  4. The location of the work;
  5. The duration of the relationship between the parties;
  6. Whether the employer has the right to assign additional projects;
  7. Worker’s discretion over when and how long to work;
  8. Payment method;
  9. Worker’s ability to hire assistants;
  10. Whether the work is part of the regular business of the employer;
  11. Whether the employer is in business;
  12. Employee benefits; and
  13. Tax treatment.

Id. at 323–24 (citing Restatement (Second) of Agency § 220(2) (1958).

The trouble with these so-multi-ethnic volunteer group hands together showing unitycalled Darden factors – aside from the sheer number and subjectivity of the factors – is that they were designed to distinguish between employees and independent contractors.   Restatement (Second) of Agency § 220(2) (1958). As a result, they do not neatly apply to the volunteer context to help courts determine whether or not a volunteer is an employee. For example, employees are distinguished from independent contractors because the former is generally paid a salary while the latter is generally paid a flat fee via invoice. See Janette v. American Fidelity Group Limited, 298 Fed.Appx. 467, 475 (6th Cir. 2008). In contrast, volunteers are generally not paid at all.

Because the Darden factors do not easily fit the volunteer context, nearly every circuit to consider a volunteer’s suit under Title VII has applied a modified analysis called the threshold remuneration test. Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 435 (5th Cir. 2013) (noting that the Second, Fourth, Eighth, Tenth, and Eleventh Circuits have adopted the threshold-remuneration test.). Under the threshold remuneration test, courts first make a determination as to whether the volunteer received the equivalent of compensation in exchange for services rendered. See O’Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir. 1997) (quoting Graves v. Women’s Professional Rodeo Association, Inc., 907 F.2d 71, 73-74 (8th Cir. 1990)) Only if this independent antecedent requirement is met, do the courts find that the volunteer’s role in the organization fairly approximates the employment relationship such that the Darden factors could be meaningfully applied. Id.

The threshold remuneration test is a sensible modification to the Darden analysis, which significantly simplifies and clarifies the analysis. In practice, the threshold remuneration test operates to exclude most traditional volunteers from Title VII protection.

However, a few years ago, the Sixth Circuit Court of Appeals (which has jurisdiction over Kentucky, Tennessee, Ohio, and Michigan) expressly rejected the threshold remuneration test. In the Bryson v. Middlefield Volunteer Fire Dep’t, Inc., 656 F.3d 348 (6th Cir. 2011), the Sixth Circuit opened the door to Title VII claims in relation to unpaid volunteers. The Court reached this conclusion on the grounds that it was bound by the Supreme Court’s directive to apply to the full common law agency test, with compensation serving as just one of the several factors to take into consideration in the analysis.

The plaintiff in Bryson was a firefighter and administrative assistant, who claimed she was offered increased benefits for sexual favors, worked in a hostile environment and was later discharged from the non-profit fire department for complaining. The Court held that several factors in the common law of agency showed volunteer firefighting as the plaintiff performed the job could be similar enough to employment to fulfill the terms of Title VII. Therefore, without applying the Darden factors, the Court remanded the case to the district court to conduct that full analysis.

This holding appears on its face to stand in stark contrast to the other circuits, and introduced a great deal of uncertainty as to the liability that employers could face from their volunteers in the work place.

However, the Sixth Circuit recently had the opportunity to bring some clarity to the volunteer context in Sister Michael Marie v. American Red Cross, 771 F.3d 344, 366 (6th Cir.2014). In Sister Michael Marie, two Catholic nuns were terminated as emergency relief volunteers from American Red Cross and the local emergency management agency. The nuns claimed that they were terminated because of their religious beliefs. As directed by Bryson, the district court had applied all of the Darden factors and determined that the nuns were not, in fact, employees so as to benefit from the protection of Title VII. The Sixth Circuit agreed, applying the Darden factors to find that the nuns were not entitled to Title VII protection because they “have not shown that they received compensation, obtained substantial benefits, completed employment-related tax documentation, were restricted in their schedule or activities, or were generally under the control of either organization through any of the other incidents of an agency relationship.” Id. at 348.

Though Sister Michael Marie follows the directives of Bryson in applying the all of the Darden factors, the manner in which the factors are applied show that the Sixth Circuit’s analysis is really not that different from the other circuits’ threshold remuneration test after all. A fair reading of the opinion reveals that the fact that the nuns did not get paid for their work significantly militated against Title VII protection. Though “method of payment” is an individual factor, financial considerations influenced several other factors as well.

Nowhere was this made more clear than in the Court’s discussion of the most important factor of the common law agency analysis – control. In addressing this factor, the Court stated that “[t]he economic reality is that when volunteers work without traditional forms of remuneration like salary and benefits, employers are generally without leverage to control that volunteer’s performance. And control is ‘[t]he crux of Darden’s common law agency test.’” Weary, 377 F.3d at 525 (quoting Darden, 503 U.S. at 323, 112 S.Ct. 1344).

Thus, as a practical matter, under the Sixth Circuit’s decision in Sister Michael Marie, an unpaid volunteer is unlikely to be able to successfully maintain an claim under Title VII for employment discrimination. However, the case provides specific direction as to when volunteers are entitled to protection and what employers can do to avoid liability to volunteers under Title VII. For more information about Title VII and how it applies to employees and employers, please contact the attorneys at McBrayer.

D. TrimbleAndrew H. Trimble is an associate in the Lexington, Kentucky office. Mr. Trimble focuses practice on general litigation, employment law and criminal defense. Mr. Trimble can be reached at (859) 231-8780, ext. 136 or atrimble@mmlk.com.