. . . [W]e conclude that the trial court correctly sustained the Town’s demurrer without leave to amend because Mendoza was an uncompensated volunteer and not an “employee” for purposes of imposition of liability for unlawful employment practices under FEHA.Mendoza v. Town of Ross, 1st Dist. No. A103878 at 1.
The Opinion goes on to clarify the source of the definition of "employee" for FEHA purposes:
More helpful is the definition of “employee” contained in regulations enacted by the Department of Fair Employment and Housing (the Department) to implement the FEHA. The Department, which was created by the FEHA (§ 12901), defines an employee as “[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” (Cal. Code Regs., tit. 2, § 7286.5(b).) While the interpretation of a statute is ultimately a question of law, appellate courts will defer to an administrative agency’s interpretation of a statute or regulation involving its area of expertise, unless the interpretation flies in the face of the clear language and purpose of the interpreted provision. (Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1104.) Far from being in conflict, section 7286.5, subdivision (b) of title 2 of the California Code of Regulations fills a gap in the governing statute, and provides a workable definition of who may be considered an employee, and thus entitled to the protection of the FEHA.
Thus, on its face, the FEHA confers employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices.
Id. at 6.
