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COMMISSION ON HUMAN RIGHTS

AND OPPORTUNITIES v. ECHO

HOSE AMBULANCE ET AL.

(SC 19496)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.*

Argued March 30—officially released July 26, 2016

Christopher T. Parkin, with whom, on the brief, were

Russell J. Sweeting and Thomas W. Moyher, for the

appellant (defendant Sarah Puryear).

Ian Angus Cole, for the appellee (named defendant).

Michael J. Rose, with whom, on the brief, was Cindy

M. Cieslak, for the appellee (defendant city of Shelton).
Opinion

McDONALD, J. We are called upon to decide what

test should be applied to determine whether an unpaid

volunteeris an ‘‘employee’’ for purposes of the Connecticut Fair Employment Practices Act (CFEPA), General

Statutes § 46a-51 et seq. More specifically, we must

decide whether a volunteer must satisfy the predominant ‘‘remuneration test’’ used to resolve similar federal

causes of action or Connecticut’s common-law ‘‘right

to control’’ test.

This certified appeal arises out of a complaint filed

with the plaintiff, the Commission on Human Rights

and Opportunities, by Brenda Puryear (Brenda), on

behalf of her then minor daughter Sarah Puryear

(Sarah).1 The complaint alleged that the defendants,

Echo Hose Ambulance and the city of Shelton, had

discriminated and retaliated against Sarah on the basis

of her race and color in violation of CFEPA and Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

et seq. (Title VII). The trial court rendered judgment

dismissing the commission’s administrative appeal

from the decision of the commission’s human rights

referee, who had struck the complaint on the ground

that Sarah was not an employee underthe remuneration

test. The Appellate Court affirmed the trial court’s judgment; Commission on Human Rights & Opportunities

v. Echo Hose Ambulance, 156 Conn. App. 239, 253, 113

A.3d 463 (2015); and Sarah appealed to this court. We

affirm the judgment of the Appellate Court.

The record reveals the following facts, as alleged

in the complaint, and procedural history. Echo Hose

provides ambulance transport and other services to the

city. Sarah, who is African-American, was accepted into

a ‘‘precepting program’’2 with Echo Hose, which

required her to ride in an ambulance for one shift each

week and to participate in other activities. While taking

part in that program, and after completing it, Sarah

‘‘was treated differently due to her race and color and

. . . was subject to discipline that other individuals

. . . were not.’’ Specifically, Sarah was subjected to

comments about Africa and the ‘‘ ‘ghetto,’ ’’ was suspended without good cause, and was terminated without good cause. Although Sarah’s termination was later

overruled, such that she was able to complete the precepting program, members of Echo Hose voted against

making Sarah a member.

Brenda thereafter filed a complaint with the commission alleging violations of CFEPA and Title VII. The

complaint did not allege that Sarah had been paid or

had received other benefits in conjunction with her

activities with Echo Hose. The city moved to strike the

complaint, claiming that Sarah was not an ‘‘employee,’’

a factual predicate to an action under either CFEPA or

Title VII, because she could not satisfy the remuneration
test that determines such a status. Brenda objected to

the motion, claiming that the proper test for determining who is an employee under CFEPA is the ‘‘right to

control test,’’ which Sarah satisfied. The referee determined that the remuneration test applied to both Title

VII and CFEPA and that Sarah could not satisfy that

test. The referee therefore struck the complaint in its

entirety.

After the referee declined to rule on motions for

reconsideration filed by the commission and Sarah

regarding Sarah’s claim under CFEPA, the commission

brought this administrative appeal pursuant to General

Statutes §§ 4-183 and 46a-94a. See footnote 1 of this

opinion. The trial court concluded that the referee properly had applied the remuneration test and dismissed

the appeal.

Sarah then appealed to the Appellate Court, which

affirmed the judgment of dismissal. Commission on

Human Rights & Opportunities v. Echo Hose Ambulance, supra, 156 Conn. App. 253. We granted Sarah’s

petition for certification to appeal limited to the following issue: ‘‘Did the Appellate Court properly apply the

federal ‘remuneration test’ rather than Connecticut’s

common-law ‘right [to] control’ test to determine an

‘employee’ under [CFEPA] . . . ?’’ Commission on

Human Rights & Opportunities v. Echo Hose Ambulance, 317 Conn. 911, 116 A.3d 309 (2015).

We apply plenary review to this question of law, and

well established principles of statutory construction.3

See General Statutes § 1-2z (setting forth plain meaning

rule); Caciopoli v. Lebowitz, 309 Conn. 62, 69, 68 A.3d

1150 (2013) (‘‘[w]hen a statute is not plain and unambiguous, we also look forinterpretive guidance to the legislative history and circumstances surrounding its

enactment, to the legislative policy it was designed to

implement, and to its relationship to existing legislation

and common-law principles governing the same general

subject matter’’ [internal quotation marks omitted]).

CFEPA defines an employee as ‘‘any person

employed by an employer . . . .’’ General Statutes

§ 46a-51 (9). This circular definition provides no guidance on how to assess whether someone is an

employee. Cf. Daggitt v. United Food & Commercial

Workers International Union, 245 F.3d 981, 987 (8th

Cir. 2001) (finding substantively identical definition of

employee in Title VII circular and unhelpful in

court’s inquiry).

‘‘This court previously has recognized that in construing [CFEPA] we are properly guided by the case law

surrounding federal fair employment legislation . . . .’’

(Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 738, 792 A.2d 752 (2002); see also

Patino v. Birken Mfg. Co., 304 Conn. 679, 689, 41 A.3d

1013 (2012) (‘‘Connecticut antidiscrimination statutes
should be interpreted in accordance with federal antidiscrimination laws’’ [internal quotation marks omitted]). We also have recognized that our legislature’s

intent, in general, was to make CFEPA complement the

provisions of Title VII. Williams v. Commission on

Human Rights & Opportunities, 257 Conn. 258, 287,

777 A.2d 645 (2001); State v. Commission on Human

Rights & Opportunities, 211 Conn. 464, 469–70, 559

A.2d 1120 (1989). We therefore previously looked to

Title VII jurisprudence for guidance when interpreting

the meaning of ‘‘employer’’ under CFEPA. See Perodeau

v. Hartford, supra, 738–41.

Two tests—the right to control test and the remuneration test—have emerged from the federal courts to

determine whether an individual is an employee in the

context of the substantively identical definition of that

term under Title VII. 42 U.S.C. § 2000e (f). The right to

control test is based on the common law of agency,

which considers various factors to determine ‘‘the hiring party’s right to control the manner and means by

which the product is accomplished [by the hired

party].’’4

(Emphasis added.) Community for Creative

Non-Violence v. Reid, 490 U.S. 730, 751–52, 109 S. Ct.

2166, 104 L. Ed. 2d 811 (1989). The United States

Supreme Court has applied this test to various statutory

schemes, not including Title VII, to resolve the question

of whether the hired party was an employee or independent contractor. Nationwide MutualIns. Co. v. Darden,

503 U.S. 318, 323, 327, 112 S. Ct. 1344, 117 L. Ed. 2d

581 (1992); Community for Creative Non-Violence v.

Reid, supra, 751–52; see also O’Connor v. Davis, 126

F.3d 112, 115 (citing cases), cert. denied, 522 U.S. 1114,

118 S. Ct. 1048, 140 L. Ed. 2d 112 (1998). The court

relied on the well established rule that, ‘‘when Congress

uses the term employee without defining it with precision, courts should presume that Congress had in mind

the conventional master-servant relationship as understood by the common-law agency doctrine.’’ (Internal

quotation marks omitted.) O’Connor v. Davis, supra,

115, quoting Nationwide Mutual Ins. Co. v. Darden,

supra, 322–23, and Community for Creative Non-Violence v. Reid, supra, 739–40.

The remuneration test arose to address circumstances in which, in contrast to the employee versus

independent contractor situation, it was not clear that

the putative employee had been ‘‘hired’’ in the first

instance, and accordingly, approximated the conventional master-servant relationship. O’Connor v. Davis,

supra, 126 F.3d 115. The remuneration test instructs

courts to ‘‘conduct a [two step] inquiry by requiring

that a volunteer first show remuneration as a threshold

matter before proceeding to the second step—analyzing

the putative employment relationship under the [common-law] agency test. Remuneration may consist of

either direct compensation, such as a salary or wages,

or indirect benefits that are not merely incidental to
the activity performed.’’ Juino v. Livingston Parish

Fire District No. 5, 717 F.3d 431, 435 (5th Cir. 2013).

A majority of United States Courts of Appeals that

have considered this issue have adopted the remuneration test. See id., 435–38 (adopting remuneration test

after contrasting cases from circuits that apply remuneration test, including Second, Fourth, Eighth, Tenth,

and Eleventh Circuits, with cases from Sixth and Ninth

Circuits, which apply common-law agency test).5

In so

doing, several circuits, including the Second Circuit,

concluded that a test designed to distinguish employees

from independent contractors is ill-suited to distinguishing employees from volunteers. See O’Connor v.

Davis, supra, 126 F.3d 115; Haavistola v. Community

Fire Co. of Rising Sun, Inc., 6 F.3d 211, 220 (4th Cir.

1993).

Federal case law strongly weighs in favor of the application of the remuneration test to claims brought under

CFEPA for two reasons. First, adopting the remuneration test makes this court’s interpretation of CFEPA

complement the interpretation of Title VII as adopted

by the majority of federal circuits, including the Second

Circuit. See Gleason v. Smolinski, 319 Conn. 394, 444

n.41, 125 A.3d 920 (2015) (decisions of Second Circuit

are deemed particularly persuasive when there is circuit

split). Although this court has occasionally interpreted

CFEPA differently than Title VII, it has done so only in

circumstances in which there is clear evidence of a

contrary legislative intent. See McWeeny v. Hartford,

287 Conn. 56, 69, 946 A.2d 862 (2008) (relevant portion

of CFEPA plain and unambiguous); Evening Sentinel

v. National Organization for Women, 168 Conn. 26, 34

n.5, 357 A.2d 498 (1975) (textual difference between

CFEPA and corresponding provision of Title VII was

‘‘purposeful and is meaningful’’); see also Vollemans v.

Wallingford, 103 Conn. App. 188, 213, 218, 928 A.2d 586

(2007) (federal interpretation directly conflicted with

specific legislative policy of avoiding dismissal of potentially meritorious claims due to late filing), aff’d, 289

Conn. 57, 61, 956 A.2d 579 (2008). No such evidence is

apparent in the present case.

Second, the logic supporting the remuneration test

is more sound. It provides a threshold step to resolve the

factual premise that the right to control test assumes—a

hiring party and a hired party.

Our conclusion that the remuneration test applies is

confirmed by the legislature’s enactment of ‘‘An Act

Protecting Interns from Workplace Harassment and

Discrimination.’’ Public Acts 2015, No. 15-56 (P.A. 15-

56), codified at General Statutes (Supp. 2016) §§ 31-40y

and 46a-51 (8). The bill subsequently enacted as P.A.

15-56 was introduced prior to the Appellate Court’s

decision in the present case but was not enacted until

shortly after that decision was issued. The legislature,

through P.A. 15-56, amended CFEPA to include interns
as a separate class of persons to whom the protections

of CFEPA applied. General Statutes (Supp. 2016) § 46a51 (8). An ‘‘ ‘[i]ntern’ ’’ is defined in part as ‘‘an individual

who . . . is not entitled to wages for the work performed’’; General Statutes (Supp. 2016) § 31-40y (a) (3)

(B); in contrast to an ‘‘ ‘[e]mployee,’ ’’ which is defined

as ‘‘any individual engaged in service to an employer in

a business of such employer and receives compensation

for such service . . . .’’6 General Statutes (Supp. 2016)

§ 31-40y (a) (1). In testimony before the Labor and Public Employees Committee prior to the Appellate Court’s

decision in this case, Senator Martin M. Looney, one

of the sponsors of the bill enacted as P.A. 15-56,

explained to his colleagues that the need for the bill

stemmed from the fact that ‘‘Connecticut does not currently protect interns from harassment, discrimination,

or retaliation in our statutes because they are not considered to be employees under our state law.’’ Conn.

Joint Standing Committee Hearings, Labor and Public

Employees, Pt. 1, 2015 Sess., p. 164.

Public Act 15-56 and its legislative history yield the

following considerations. First, the legislature did not

hold the view that the right to control test applied to

CFEPA because, if that test had applied, interns would

not have been categorically excluded from CFEPA. Second, adopting the right to control test for CFEPA would

create tension between CFEPA and P.A. 15-56, the latter

plainly turning on the question of compensation and

other factors not directly related to the right to control.

Creating such tension would be inconsistent with the

principle that we read ‘‘the legislative scheme as a whole

in order to give effect to and harmonize all of [its]

parts.’’ (Internal quotation marks omitted.) Stewart v.

Watertown, 303 Conn. 699, 711, 38 A.3d 72 (2012).

Sarah nevertheless advances a number of arguments

for application of the right to control test, none of which

we find persuasive. Sarah’s reliance on two cases

involving complaints by volunteers, Groton v. Commission on Human Rights & Opportunities, 169 Conn.

89, 91, 100–101, 362 A.2d 1359 (1975), and Quinnipiac

Council, Boy Scouts of America, Inc. v. Commission

on Human Rights & Opportunities, 204 Conn. 287, 302,

528 A.2d 352 (1987), is misplaced. Because neither case

directly addressed or analyzed the question of who is

an employee under CFEPA, we read them as simply

assuming, without deciding, that volunteers could be

protected under CFEPA, a proposition that we do

not dispute.

Sarah’s contention that, by enacting P.A. 15-56, the

legislature clarified the law to protect individuals in her

position, is unsupported by its plain language. Public

Act 15-56 expands protections for one narrowly defined

class of persons—unpaid interns—to which Sarah does

not belong.

Sarah’s argument that applying the remuneration test
would lead to unfair results, contrary to the public policy of protecting workers from discrimination, is similarly unpersuasive. Although CFEPA is a remedial

statute, such ‘‘that ambiguities in [CFEPA] should be

construed in favor of persons seeking redress thereunder’’; McWeeny v. Hartford, supra, 287 Conn. 70; our

‘‘fundamental objective is to ascertain and give effect

to the apparent intent of the legislature.’’ (Internal quotation marks omitted.) Standard Oil of Connecticut,

Inc. v. Administrator, Unemployment Compensation

Act, 320 Conn. 611, 642, 134 A.3d 581 (2016). Accordingly, we are ‘‘not free to accomplish a result that is

contrary to the intent of the legislature . . . .’’ (Internal

quotation marks omitted.) McWeeny v. Hartford, supra,

70. For all the reasons previously discussed, we are

persuaded that the application of the remuneration test

would be its intention. Moreover, the legislature’s use

of the term ‘‘employee’’ instead of a more general term;

cf. General Statutes § 53-450 (b) (‘‘[a]ny person . . .

shall have a right of action against any person’’); is itself

an expression of public policy to impose some limit on

the scope of CFEPA. Thibodeau v. Design Group One

Architects, LLC, 260 Conn. 691, 713, 802 A.2d 731 (2002)

(general public policy against sex discrimination could

not trump specific expression of policy in CFEPA

exempting small employers).

In sum, the Appellate Court properly concluded that

the remuneration test is the appropriate test for

determining whether a volunteer is an employee under

CFEPA. Although a volunteer may be able to meet the

remuneration test by proof of benefits in lieu of wages;

Haavistola v. Community Fire Co. of Rising Sun, Inc.,

supra, 6 F.3d 221–22; Sarah has neither alleged facts

nor claimed on appeal that she can meet this test.

Accordingly, our conclusion that the remuneration test

applies is dispositive.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

* This case originally was scheduled to be argued before a panel of this

court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Although Justice Eveleigh was

not present when the case was argued before the court, he has read the

briefs and appendices, and listened to a recording of the oral argument

prior to participating in this decision.

1 Due to unusual procedures applicable to proceedings before the commission, in this administrative appeal, the commission is named as both a

plaintiff(in its own capacity) and as a defendant(in its capacity as the agency

under which the commission’s human rights referee issued the decision from

which the commission appealed). See General Statutes § 46a-94a. Sarah,

who was substituted for her mother as a party upon reaching the age of

majority, is named as a nominal defendant pursuant to General Statutes § 4-

183 (c). For clarity, we refer to the commission and Sarah by name.

2

It appears from the record that the precepting program is a probationary

training program that, if satisfactorily completed, allows the participant to

become a regular member of Echo Hose upon a majority vote of all of the

regular members.

3 Although we ordinarily afford ‘‘deference to the construction of a statute

applied by the administrative agency empowered by law to carry out the

statute’s purposes,’’ such deference is unwarranted when, as in this case,

‘‘the construction of a statute . . . has not previously been subjected to
judicial scrutiny [or to] . . . a governmental agency’s time-tested interpretation . . . .’’ Chairperson, Connecticut Medical Examining Board v. Freedom of Information Commission, 310 Conn. 276, 281–82, 77 A.3d 121 (2013).

4 Connecticut’s right to control test similarly determines the relationship

between a worker and a putative employer ‘‘by asking whether the putative

employer has the right to control the means and methods used by the worker

in the performance of his or her job.’’ (Internal quotation marks omitted.)

Doe v. Yale University, 252 Conn. 641, 680–81, 748 A.2d 834 (2000). This

court has not expressly endorsed the factors used by the federal courts,

which include: ‘‘the skill required; the source of the instrumentalities and

tools; the location of the work; the duration of the relationship between

the parties; whetherthe hiring party has the right to assign additional projects

to the hired party; the extent of the hired party’s discretion over when and

how long to work; the method of payment; the hired party’s role in hiring

and paying assistants; whether the work is part of the regular business of

the hiring party; whether the hiring party is in business; the provision of

employee benefits; and the tax treatment of the hired party.’’ (Footnotes

omitted.) Community for Creative Non-Violence v. Reid, 490 U.S. 730,

751–52, 109 S. Ct. 2166, 104 L. Ed. 2d 811 (1989).

5 Two other circuit courts have applied the common-law test for agency

to determine whether an individual was an employee under Title VII, but

there was no question that the individual had been hired by the employer.

See Brown v. J. Kaz, Inc., 581 F.3d 175, 178, 180 (3d Cir. 2009); AlbertyVelez v. Corporacion de Puerto Rico Para La Difusion Publica, 361 F.3d

1, 6–7 (1st Cir. 2004).

6 The definition of intern also provides that an intern is an individual

whose work ‘‘supplements training given in an educational environment’’;

General Statutes (Supp. 2016) § 31-40y (a) (3) (C) (i); therefore making clear

that an intern is not the same as a volunteer whose efforts are unconnected

to an educational program.