A r c h i v e d  I n f o r m a t i o n

Footnotes

These footnotes are included to provide legal citations and elaborations for use by lawyers. They are not essential to understanding the text.

¹ 42 U.S.C., § 2000e et seq.

² 29 U.S.C. § 621 et seq.

³ 42 U.S.C. § 2000e (k).

⁴ Haavistola v. Community Fire Co. of Rising Sun, 6 F.3d 211 (4th Cir. 1993).

⁵ See Leda E. Dunn, Note, "Protection" of Volunteers Under Federal Employment Law: Discouraging Voluntarism?, 61 Fordham L. Rev. 451, 459-62 (1992).

⁶ For example, Title VII applies only to organizations with 15 or more employees and the Age Discrimination in Employment Act applies only to organizations with 20 or more employees.

⁷ EEOC v. Monclova Township, 920 F.2d 360 (6th Cir. 1990); Graves v. Women?s Professional Rodeo Ass?n, 907 F.2d 71 (8th Cir. 1990); Hall v. Delaware Council on Crime & Justice, 780 F. Supp. 241 (D. Del. 1992); Tadros v. Coleman, 717 F. Supp. 996, 1004 (S.D.N.Y. 1989), aff?d, 898 F.2d 10 (2d Cir. 1990), cert. denied, 111 S.Ct. 186 (1990); EEOC v. Pettegrove Truck Service, Inc., 716 F. Supp. 1430 (S.D. Fla. 1989); Alcena v. Raine, 692 F. Supp. 261 (S.D.N.Y. 1988); Shoenbaum v. Orange County Ctr. for Performing Arts, 677 F. Supp. 1036 (C.D. Cal. 1987); Smith v. Berks Community Television, 657 F. Supp. 794 (E.D. Pa. 1987); Beverly v. Douglas, 591 F. Supp. 1321 (S.D.N.Y. 1984). See also Diane C. Desautels, Note, Discrimination Law-Statutory Protection for Volunteers Against Discrimination, 11 W. New Eng. L. Rev. 93 (1989).

⁸ Graves, 907 F.2d at 73 ("compensation by the putative employer to the putative employee in exchange for his services is not a sufficient condition, but it is an essential condition to the existence of an employer-employee relationship"); Tadros 717 F. Supp. at 996 ("a Title VII plaintiff is only an "employee" if the defendant both pays him and controls his work"); Shoenbaum 677 F. Supp. at 1039 (by analogy to Title VII, volunteers receiving no financial remuneration or reimbursement are not employees under the Age Discrimination In Employment Act).

⁹ 657 F. Supp. 794, 796 (E.D. Pa. 1987) (considering Congress? purpose in enacting Title VII, "unpaid volunteers are not employees within the meaning of the [Civil Rights Act of 1964]").

¹⁰ 6 F.3d 211 (4th Cir. 1993). In Haavistola, the U.S. Court of Appeals for the Fourth Circuit reversed a Maryland district court?s grant of summary judgment against Haavistola. The court held that because compensation is not defined by statute or case law, it cannot be determined as a matter of law. Whether benefits received represent sufficient remuneration to be deemed compensation is a disputed material fact, and its ultimate determination must be made by a fact finder. It was erroneous for the district court to conclude on the basis of a summary judgment record alone that benefits received by fire company members are not sufficient to make them employees under Title VII.

¹¹ According to the Haavistola court, however, compensation is but part of the test for determining whether a volunteer is an employee. The volunteer must also establish that the putative employer had sufficient control over the volunteer to make the volunteer an employee. If the degree of control is too low, then the volunteer will be considered an independent contractor rather than an employee. The court refers to an extensive list of factors outlined in Garrett v. Phillips Mills, Inc., 721 F.2d 979 (4th Cir. 1983), which should be analyzed in making the control determination.

¹² Haavistola, 6 F.3d 211 at 221.

¹³ The court carefully distinguished cases in which the volunteers received no financial remuneration of any sort, either direct or indirect; received no fringe benefits or reimbursement for expenses; and contributed assistance on a purely voluntary basis. Haavistola, 6 F.3d 211 at 221. See also Tadros, 717 F. Supp. at 998, where the court found that no reasonable jury could return a verdict for Dr. Tadros, a Visiting Lecturer at Cornell Medical College, because Cornell bestowed no pecuniary or other benefits on Dr. Tadros. He received no salary, no health or dental benefits, no insurance or retirement benefits, no office space, and no secretarial help. Furthermore, the court noted that the association with Cornell on his resume was not "the type of salary or other benefit contemplated by Title VII."

¹⁴ 459 A.2d 439 (Pa. Commw. Ct. 1983). See also Herberd v. Basking Ridge Fire Co. No. 1, 395 A.2d 870 (N.J. Super. 1978) (volunteer firefighters were employees of both the fire company and the township and were therefore protected by the New Jersey Law Against Discrimination).

¹⁵ 459 A.2d at 442.

¹⁶ 500 N.W.2d 822 (Neb. 1993).

¹⁷ 42 U.S.C.A. § 2000a (1982).

¹⁸ As one court stated: "The hallmark of a place of public accommodation [is] that ?the public at large is invited.?" National Organization for Women v. Little League Baseball, Inc., 318 A.2d 33, 37 (N.J. Super. 1974), aff?d., 338 A.2d 198 (N.J. 1974).

¹⁹ 787 F. Supp. 1511 (N.D. Ill. 1992), aff?d, 993 F.2d 1267 (7th Cir. 1992), cert. denied, __ U.S. __ (1993).

²⁰ The Welsh court, however, carefully distinguished situations in which membership in an organization effectively serves as the "ticket" for admission to a particular "place." See, e.g., United States v. Slidell Youth Football Ass?n, 387 F. Supp. 474 (E.D. La. 1974) (holding that the football league which owned a sports facility containing "two fully equipped football fields, grandstands and a food concession stand enclosed in a chain link fence" was a public accommodation under Title II).

²¹ Diane C. Desautels, Note, Discrimination Law-Statutory Protection for Volunteers Against Discrimination, 11 W. New Eng. L. Rev. 93, 96 n. 23 (1989).

²² United States Jaycees v. Iowa Civil Rights Comm?n, 427 N.W.2d 450 (Iowa 1988); United States Jaycees v. Massachusetts Comm?n Against Discrimination, 463 N.E.2d 1151 (Mass. 1984); United States Jaycees v. Richardet, 666 P.2d 1008 (Alaska 1983); United States Jaycees v. Bloomfield, 434 A.2d 1379 (D.C. App. 1981).

²³ Kiwanis Int?l. v. Ridgewood Kiwanis Club, 806 F.2d 468 (3d Cir. 1986); Isbister v. Boys Club of Santa Cruz, Inc., 707 P.2d 212 (Cal. Ct. App. 1985); Shepherdstown Volunteer Fire Dep?t v. West Virginia Human Rights Comm?n, 309 S.E.2d 342 (W.VA. 1983); United States Power Squadrons v. State Human Rights Appeal Board 452 N.E. 2d 1199 (N.Y. App. Div. 1983); Curran v. Mount Diablo Council of the Boy Scouts of Am., 195 Cal. Rptr. 325 (Cal. Ct. App. 1983), appeal dismissed, 468 U.S. 1205 (1984); United States Jaycees v. McClure, 305 N.W.2d 764 (Minn. 1981); National Org. for Women v. Little League Baseball, Inc., 318 A.2d 33 (N.J. Super. 1974), aff?d., 338 A.2d 198 (N.J. 1974).

²⁴ 528 A.2d 352 (Conn. 1987).

²⁵ Quinnipiac, 528 A.2d at 360.

²⁶ 42 U.S.C. § 12101 et seq.

²⁷ 42 U.S.C. § 12181(7).

²⁸ 42 U.S.C. § 12101.

²⁹ ADA Compliance Guide, ¶ 520, August 1990.

³⁰ § 12635 ¶ C, 1 & 2.

³¹ 42 U.S.C. § 2000d.

³² 20 U.S.C. § 1681.

³³ 42 U.S.C. § 6102.

³⁴ 29 U.S.C. § 794.

³⁵ 34 C.F.R. § 100.3(b). See also Goldstein, Michael B. and Wolk, Peter C. "Legal Rights and Obligations of Students, Employers, and Institutions." In K. G. Ryder, J. W. Wilson and Associates, Cooperative Education in a New Era: Understanding and Strengthening the Links Between College and the Workplace, 1987.

³⁶ Ark. Stat. Ann. § 11-9-102 (3) (A) (iii).

³⁷ Idaho Code § 72-212(5).

³⁸ E.g., California, Florida, New York. U.S. Chamber of Commerce, 1993 Analysis of Workers? Compensation Laws. On the other hand, Utah requires public entities to purchase workers? compensation for their volunteers. Utah Code tit. 67, § 20-3.

³⁹ Van Horn v. Industrial Acc. Com., 219 C.A.2d 457, 33 Cal. Rptr. 169 (1963) (recipient of football scholarship permitted to collect workers? compensation from college). Hoppman v. Workers Compensation Appeals Bd., 226 Cal. App.3d 1119, 277 Cal. Rptr 116 (1991) (worker who received minimal hourly wage in exchange for services to church held eligible for workers? compensation benefits even though state statute exempted individuals performing services for charitable organization in exchange for aid or sustenance only.)

⁴⁰ Stegeman v. Francis Xavier Parish, 611 S.W.2d 204 (Mo. 1981) (uncompensated volunteer construction worker for parish school held eligible for compensation where employer had right of control over worker?s service.); California Compensation Insurance Co. v. Industrial Accident Commission, 118 C.A.2d 653, 258 P.2d78 (1953) (construction workers who volunteered some of their noncompensated hours to the construction of church, under control of same foreman for whom they performed compensated work, held to be covered by workers? compensation when injured during noncompensated hours.)

⁴¹ Ellis, Susan, Children as Volunteers, 47-48 (1991).

⁴² New York State Department of Labor, letter from Commissioner Lillian Roberts to New York City Mayor Voluntary Action Center, 1984.

⁴³ 26 U.S.C. § 3402.

⁴⁴ The Internal Revenue Code subjects to tax "all income from whatever source derived" unless specifically excluded. 26 U.S.C. § 61. The principal element in the definition of "Gross Income" is "compensation for services," which the courts and the Internal Revenue Service have consistently construed as encompassing payment for services including compensation in forms other than cash. I.R.S. Reg. § 1.61.1.

⁴⁵ Payments received by trainees in programs under Titles I and II of the Comprehensive Employment and Training Act (CETA), for services performed during on-the-job training for a private construction company or for work experience in a city clinic were held to be included in the participants? gross income. Allowances received for participation in a program, or to enable the trainee to participate, and not for the performance of services were ruled tax free. Rev. Rul. 75-246, 1975.

Similarly, Job Service Corps members who acquired new employment skills but performed no actual service, were not required to pay tax on their stipends. The IRS reasoned that the stipends served the same function as tax exempt unemployment relief payments made for the promotion of the general welfare, which are tax-exempt. Conversely, members of a state service corps who were directly compensated for services rendered were required to pay federal income tax on their wages, but not on reimbursements for ordinary and necessary expenses. Rev. Rul. 68-133, 1968; 74-413, 1974; 68-139, 1968; 63-136, 1963.

⁴⁶ 26 U.S.C. § 119.

⁴⁷ 26 U.S.C. § 106. See also 26 U.S.C. § 125.

⁴⁸ Rev. Rul. 70-474, 1970-2 C.B. 34.

⁴⁹ 26 U.S.C. § 129.

⁵⁰ Internal Revenue Code section 132 grants an exemption for de minimis fringe benefits that are inexpensive enough to make accounting unreasonable or administratively impractical.

⁵¹ Treas. Reg. § 1.61-21(b)(2).

⁵² 26 U.S.C. § 117.

⁵³ Bhalla, Chandler, (1960) 35 TC 13 Rev. Rul. 60-378, 1960-2 CB 38.

⁵⁴ Saber, Joseph, TC Memo 1981-477; Hales, Stephen, TC Memo 1978-221; Rev Rul 78-54, 1978-1 CB 36.

⁵⁵ Liability for tax begins when an individual "constructively receives" the scholarship. As a practical matter, constructive receipt and actual receipt will almost always coincide at the time the individual makes use of the scholarship. See Treas. Reg. § 1.446-1(c)(i).

⁵⁶ See Federal Tax Coordinator 2d § L-4414, p. 34,455.

⁵⁷ Comm?r. v. Kowalski, 434 U.S. 77, 54 L.Ed.2d 252 (1977).

[Conclusion]