Alaska Employment Law

Sierra Nevada Community Access Television, Inc. broadcasts film produced by members of the public (including “aspiring Wayne Campbells”).  It is governed by an unpaid, volunteer Board of Directors.  When the Board fired its Executive Director, he sued under the Americans with Disabilities Act and the Age Discrimination in Employment Act.  The ED claimed that the Directors and the “independent producers” of the films should be counted as “employees” to trigger statutory coverage. 

The District Court found for the non-profit, and the 9th Circuit has now unanimously affirmed.

Directors: As to the Directors, the 9th Circuit panel (Thomas, Callahan, and a visiting 3rd Circuit judge) applied Clackamas Enterology Assoc., PC v. Wells, 538 US 440 (2003), and held:

Media Center does not hire or fire its directors: the Board selects its own members. The directors each have full-time jobs independent of Media Center, and are not compensated by Media Center. Neither the travel reimbursement nor the food supplied at Board meetings rises to the level of compensation. The personal satisfaction and professional status several directors reported gaining from their positions with Media Center are typical benefits of volunteer work.

Nor does Media Center supervise or regulate the directors’ work. Directors do not share in the day-to-day responsibilities of Media Center staff, but rather spend approximately two to four hours a month on Media Center work. The Board is governed by bylaws that the Board itself adopts. The Board generally operates as a democracy. That the Board has created a system of self-governance does not place any individual director in the position of subservience contemplated by the conventional master-servant relationship.

The directors do not report to someone higher in the organization in any traditional way. The different committees of the Board report back to the Board, but the reports are not those made to a chief executive officer. Rather, the committees report as advisors on particular subjects. The Board as a whole acts as the ultimate supervisor: the Executive Director must get the Board’s approval for budgets and large expenditures.

Because of their advisory and supervisory function, the directors are in a position to influence Media Center. The Board sets policy and makes recommendations to the Executive Director. The Executive Director implements the Board’s recommendations.

Likewise, the parties’ intent supports the conclusion that the directors are not employees. In their depositions, the directors stated that they consider themselves volunteers, not employees. Fichman did not produce employment agreements or any testimony that would contradict this statement or suggest that Media Center intended otherwise.

The last factor — whether the individual shares in the profits, losses, and liabilities of the organization — may not be appropriate to the non-profit setting. Media Center did maintain officers’ and directors’ liability insurance so that the directors would not be exposed to liability because of their work with Media Center. This was the only insurance coverage (or other type of traditional “benefit”) the directors received.

Independent producers:  Similarly, the film producers are not employees.  (In fact, unlike the Directors, they appear to be independent contractors.)

The producers pay for Media Center classes through which they can become certified to use Media Center facilities.  Once certified, they receive minimal supervision while using the facilities. Producers are required to sign a contract and agree to indemnify Media Center against any liability. The contract does not define the relationship as employer-employee. There is no prohibition against non-local producers submitting videos, but the producers are required to have a local sponsor. A parental signature is required if the submitting producer is under the age of 18. 

Media Center does not have the power to hire or fire producers. It does not supervise them in a traditional employer-employee manner. The producers are not paid a salary, nor are they entitled to employee benefits. 

Given these undisputed facts, the district court correctly held that the independent program producers could not be counted as employees within the meaning of the ADA or ADEA. Neither the serious members of the public who provide programming content to Media Center, nor the aspiring Wayne Campbells of northern Nevada, qualify as Media Center employees.

Fichman v. Media Center, 2008 WL _______ (9th Cir. Jan. 14, 2008).