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Nonprofit Organization's Directors Not Employees under ADEA

    Client Alerts
  • January 25, 2008

Federal civil rights laws such as Title VII usually require a minimum number of employees to subject the employer to their jurisdiction.  A number of recent federal cases have examined the question of who counts toward these jurisdictional minimums.  Last week, the Ninth Circuit Court of Appeals concluded that unpaid directors of a nonprofit organization are not counted toward this jurisdictional minimum.  The case, Fichman v. Media Center, was filed by an employee of a Nevada nonprofit who alleged age discrimination.  The nonprofit sought dismissal of the case because it has fewer than 20 employees, the jurisdictional minimum under ADEA.


The plaintiff contended that her employer actually had more than 20 employees, if its board of directors and independent producers associated with the Center were included.  The Ninth Circuit affirmed dismissal of the complaint.  The court relied upon the U.S. Supreme Court’s Clackamas decision in concluding that neither the unpaid board members nor the producers met the common law definition of employees.  The directors were true volunteers despite reimbursement for expenses.  They held full-time jobs elsewhere and could not be “fired” except by the board itself.  The producers were affiliated with the Center, but paid for use of its facilities, and were not employees.


This decision should assure small nonprofit organizations that their affiliation with volunteers or others in the community will not result in their being considered employers of those individuals.