Part 2: Legal Issues with Volunteers

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In the first post, we covered the status of volunteers. In addition, volunteers may get hurt or hurt others. Organizations can take a number of steps to protect volunteers and others, and to reduce liability.

When Volunteers Get Hurt—Workplace Injuries

Another area of potential liability with respect to volunteers is for injuries. When employees get injured while in the course and scope of their employment, the laws of most U.S. states generally preclude them from suing their employers. Rather, employers are generally required to carry workers' compensation insurance that provides a source of recovery when employees get hurt on the job. The trade-off is that employers get relieved of the risk of litigation from injured employees, and the employees get a more predictable and accessible form of compensation for workplace injuries.

But this arrangement typically does not exist with respect to volunteers who get injured while in the course and scope of their volunteer activities. State law might not bar personal injury claims by volunteers against the organizations they serve, and workers' compensation insurance policies may not provide coverage for such claims. In those scenarios, injured volunteers are likely to sue the nonprofits for whom they volunteer.

Injured volunteers might sue to hold non-profits responsible for their injuries and to seek damages. These might include premises liability claims as well as claims based upon failure to warn of off-site dangers and failure to provide sufficient training to prevent injury.

When Volunteers Hurt Others—Vicarious and Direct Liability

Perhaps the biggest area of liability created by using volunteers is their capacity to hurt other people, either intentionally or inadvertently. One characteristic that volunteers share with paid employees is that both are agents of the organization they are serving. This means that the actions they take in the course and scope of their service will impute to the organization. In other words, if a volunteer hurts someone, the organization can be held vicariously liable.¹

In addition to vicarious liability, the actions of volunteers can also create direct liability for organizations. This can include claims for negligent selection or screening of volunteers, negligent training, and failure to warn others of dangers that volunteers might create.

To illustrate how both vicarious and direct liability might arise from the actions of volunteers, consider the following hypothetical: Vickie Volunteer donates her time to ACME Senior Services by picking up elderly individuals in ACME's shuttle van and transporting them to various locations. One day, after picking up Ms. Peggy Passenger to take her to an appointment, Vickie ran a red light, struck Pat Pedestrian in the cross-walk, then veered off the road, hitting a telephone pole. Both Mrs. Passenger and Mr. Pedestrian were injured. ACME had not properly screened Vickie before letting her drive its shuttle and it did not know of Vickie's bad driving record nor of her use of medications that impaired her response time. ACME had also neglected to list Vickie as a covered insured driver with its commercial auto policy.

So what kind of liability can ACME expect? Well, Mrs. Passenger and Mr. Pedestrian are likely to assert vehicular negligence claims against ACME under a respondeat superior theory, since Vickie was acting in the course and scope of work for ACME when she injured them. They could also assert direct liability claims against ACME for negligent selection, training, and retention of Vickie.

Non-profits can also sometimes be implicated in the willful and intentional actions of their volunteers. This is especially true in the context of volunteers who work with children. For example, if a church youth group leader engages in sexual abuse of a minor and the church did not appropriately screen the volunteer or take steps to warn of any indications that the volunteer created known risks, then the church may be liable to the victims.

Voluntary Vigilance: How Organizations Can Avoid Liability

While volunteers can be a valuable resource for non-profit organizations, they can also be a significant source of potential liability in each of the areas addressed above. Here is a non-exhaustive list of steps that organizations can take to help reduce the legal risks identified in this article and ensure that a volunteer's free work does not become an expensive ordeal:

• Ensure that volunteers do not have expectations of compensation in any form for their services.
• Do not use volunteers to perform commercial activities or duties that are normally done by paid employees in the organization.
• Avoid any practices that might be discriminatory when it comes to selecting or terminating volunteers, and ensure compliance with any applicable EEO laws.
• Thoroughly screen volunteers by using background checks, references, and in-person interviews, especially for volunteers who will work with vulnerable groups like children. Document the screening procedures so that they can be proved in litigation if necessary.
• Properly train employees on how to perform their services in a way that is safe for them, the people they serve, and others. Proper training is particularly important if they work with children. Document this training so that it can be proved in litigation if necessary.
• Provide a hazard-free workplace for volunteers and ensure that they have and use any appropriate protective equipment.
• Volunteering is not a right; it's a privilege. Persons who create risks to themselves or others should not be permitted to volunteer.
• Ensure that volunteers are adequately supervised.
• Ensure that volunteers have any necessary licensure to perform certain services (e.g., practicing medicine or operating commercial vehicles). If they are providing professional services, make sure their professional liability insurance covers the services.
• Adopt written policies and procedures that address the various aspects of volunteering, including screening, training, supervising, and dismissal.
• Implement written releases and waivers for volunteers to sign that explain the risks of their activities, waive rights to sue for injuries, and acknowledge their status as a volunteer.
• Procure liability insurance that will cover injuries caused to or by volunteers with sufficient coverage limits.

Non-profit organizations that want to manage risk can also consult with their insurance broker and with attorneys who are knowledgeable and experienced with nonprofit employment and volunteer issues.

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¹ The federal Volunteer Protection Act of 1997 provides tort immunity for volunteers who serve non-profits and governmental entities. Under that Act, no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity. See 42 U.S.C. § 14501, et seq. But this law only protects volunteers. It does not provide immunity for organizations.

Featured Image by Rebecca Sidebotham.