The City of Sierra Madre hires and fires volunteer firefighters, sets the rules and regulations for their work, requires them to work specific shifts and to arrive on time, and requires them to report to supervisors and to work within the framework of the Sierra Madre Fire Department (SMFD). Volunteer firefighters also receive training and are covered by workers’ compensation. The City keeps records of the volunteer firefighters’ service. It pays volunteer firefighters a stipend of $1 per day, paid every 90 days. It also pays voluntary firefighters approximately $33 per day when “hired out” with a SMFD strike team of firefighters sent to assist other agencies in fighting non-local large-scale fires. None of that was enough to make a volunteer firefighter an employee for DFEC discrimination claims according to a new case from the Court of Appeal.
In 2007 Kaylin Enriquez applied for a position as a firefighter for the SMFD, after completing her firefighter training. She was appointed to work as a probationary volunteer firefighter. After learning that she had been accepted to the training program she resigned from her other job with FirstMed Ambulance. Enriquez eventually completed her probationary period as a volunteer firefighter. On April 10, 2008 Enriquez began the background check procedure required for employment by the Sierra Madre Police Department (SMPD).
Meanwhile, Enriquez had witnessed incidents that several firefighters in the SMFD claimed involved sexual harassment. Enriquez then received a phone call from SMPD Chief Marilyn Diaz, who stated the police department was putting Enriquez’s employment on hold pending resolution of issues regarding Enriquez’s status with the SMFD.
On August 2, 2008 the SMFD issued Enriquez a disciplinary notice that wrongly accused her of ignoring an admonishment not to discuss her interview or the investigation with anyone but her “authorized representative.” The notice stated that she had created an uncomfortable working environment by discussing the incidents with City staff. The notice stated that Enriquez was “[d]ishonest, [d]isobedient; [took a]ctions that adversely affected the safety of employees or others; . . . [engaged in h]arassment of fellow employees; [and engaged in v]iolation of any city policy.” The City refused to remove the disciplinary notice after Enriquez explained inconsistencies and errors in the notice.
Enriquez’s prospective employment with the SMPD, originally scheduled to begin August 4, 2008, was postponed initially for six months and then indefinitely. The SMPD ultimately withdrew its employment offer “as a result of the Disciplinary Notice and subsequent action.” At the end of 2009 Captain Kristine Lowe of the SMFD informed Enriquez via Facebook message that the SMFD was placing Enriquez on leave from her position as volunteer firefighter because she had not yet obtained her Emergency Medical Technician certification/accreditation (EMT certification). The EMT training requirement had not been enforced in the two years Enriquez had been a volunteer firefighter. Enriquez attempted to enroll in the first available EMT training course upon learning of the certification requirement, but all of the classes were full and there was no waiting list.
Enriguez filed a civil action with 22 causes of action. As to the employment-related causes of action (causes of action 1-20 and 22), the City argued that Enriquez did not receive “significant remuneration” for her services and therefore was not an employee and could not state causes of action for employment discrimination. The trial court sustained a demurrer without leave to amend. The Court of Appeal affirmed the dismissal in the unpublished case of Enriquez v. City of Sierra Madre.
The key legal issue on appeal was whether the plaintiff was an employee and therefore protected from wrongful termination and employment discrimination under FEHA. To satisfy the hiring prong of the thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid [1989], a purported employee must establish the existence of remuneration, in some form, in exchange for work. Individuals who are not compensated for their services are not employees for purposes of discrimination statutes. Substantial indirect compensation can satisfy the threshold requirement of remuneration. This can include state-funded disability pension, . . . survivors’ benefits for dependents, . . . scholarships for dependents upon disability or death, . . . bestowal of a state flag to family upon death in the line of duty, . . . benefits under the Federal Public Safety Officers’ Benefits Act when on duty, . . . group life insurance, . . . tuition reimbursement for courses in emergency medical and fire service techniques, . . . coverage under a Workers Compensation Act, . . . tax-exemptions for unreimbursed travel expenses, . . . ability to purchase, without paying extra fees, a special commemorative registration plate for private vehicles, . . . and access to a method by which [the volunteer firefighter] may obtain certification as a paramedic.
Enriquez argued that her receipt of workers’ compensation benefits was sufficient to give her employee status. The Court of Appeal decided that this was not enough. Enriquez did not receive any retirement, health care, insurance, tuition reimbursement or other similar benefits that would support a finding that she was an employee. The court in Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, which involved a volunteer reserve police officer, recently rejected the argument that receipt of workers’ compensation benefits alone confers employee status in a DFEH claim.