Using Volunteers – Your Liabilities
By Barbara F. Dunn, Esq.
With the high cost of temporary or leased employees to staff meetings and events, many organizations consider using volunteers, such as members of their organization, to service their meetings and events. But is the use of volunteers in such a manner savvy or risky? Look at it from all angles: liability for injuries to volunteers, liability for injuries caused by volunteers and liability of volunteers.
Liability for Injuries to Volunteers
Unlike a traditional employer-employee relationship in which the employer would be liable for injuries to the employee via worker’s compensation laws, the liability of an organization to its volunteer is less certain.
Some states have established that organizations must provide a safe working environment for their volunteers just as they are required to do for their employees. Note that this would extend to the volunteer working off premises.
Let’s take an example. A nonprofit organization asks a volunteer to staff the registration desk at a meeting. While at the registration desk, the volunteer trips over an electrical cord that was not taped down. The volunteer subsequently sues the organization for damages. In this case, the volunteer can make the argument that the organization failed to provide a safe working environment. Typically, an organization’s general liability insurance policy would cover such a claim, but it is important to review your organization’s insurance policy to confirm that coverage.
Liability for Injuries Caused by Volunteers
Whether an organization can be held liable for injuries caused to a third party by a volunteer depends on a variety of factors. These factors include:
• Whether the organization had a duty of care with respect to those who were injured;
• Whether the organization breached its duty of care;
• Whether harm actually occurred;
• Whether the harm caused was foreseeable;
• Whether the breach of the duty of care was a proximate cause of the harm that occurred; and
• Whether there were reasonable measures available to the nonprofit that would have prevented the harm from occurring.
Within any given jurisdiction and within any given jury, these factors among others will be taken into consideration in determining an organization’s liability. Rest assured, outcomes will vary. However, it appears that many jurisdictions will hold an organization responsible for the negligent acts of its volunteers.
There are ways in which organizations can minimize the risk of liability for volunteer actions. First, the organization should develop descriptions of duties for the volunteer position. Next, the organization should provide the volunteer with guidelines and/or training on how the work should be completed. Also, the volunteer’s work should be adequately supervised. Finally, the organization should have a process to remove volunteers who are not performing as requested. In certain instances, screening of volunteers may be required, including searching for criminal records of individuals who may be asked to work with children or transport attendees.
Liability of Volunteers
A frequently asked question is whether the volunteer can be held personally liable for his or her actions on behalf of the organization. The short answer is often “no,” thanks to both federal and state law, but there are circumstances in which a volunteer could be held personally liable for his or her actions.
At the federal level, the Volunteer Protection Act (VPA) was enacted in 1997 to allay the fears of volunteers being held personally liable for their actions. There are five requirements for protection under the VPA:
1. The person must be a “volunteer” within the meaning of VPA and may not receive compensation for services (other than reimbursement of expenses), except that officers and directors may receive compensation of up to $500 per year;
2. The activity giving rise to the claim must have been in the scope of the volunteer’s responsibilities at the time of the activity;
3. If the activity requires licensing or certification, the volunteer must have had such licensing or certification;
4. The harm cannot have been caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant disregard of the rights or safety of the individual harmed; and
5. The harm was not caused by the volunteer operating a motor vehicle.
If these requirements are met, the volunteer can be immune from liability from claims made by injured parties. Note, however, that the VPA does not prevent the volunteer from being sued by the organization.
Certain actions, such as crimes of violence, terrorist acts, hate crimes and sexual offenses, are not granted immunity under the VPA regardless of whether the above requirements are met.
The VPA preempts any inconsistent state law unless the state law provides more liability protection for volunteers than the VPA, in which case such law would supersede the VPA.
In Missouri, for example, the law provides that a volunteer of a non-profit organization or governmental entity is immune from personal liability for any act or omission resulting in damage or injury to the person intended to receive the benefit of service. This applies if the volunteer acted in good faith and within the official scope of his or her duties. Exceptions apply for intentional or malicious conduct or by negligence on the part of the volunteer. Other types of volunteers, such as school volunteers, social services volunteers and emergency worker volunteers, have similar protection under Missouri law.
For more information regarding state laws protecting volunteers, see the publication, “State Liability Laws for Charitable Organizations and Volunteers,” published by the Nonprofit Risk Management Center (available online at www.nonprofitrisk.org).
Given the potential for liability when using volunteers, organizations should fully examine the issues raised by this article prior to initiating a volunteer program. Consultation with legal and insurance professionals is essential in managing any potential liability.
Barbara F. Dunn, Esq., is an attorney and partner in the St. Louis office of Howe & Hutton, Ltd. She can be reached at (636) 256-3351 or [email protected].