Many charities and not-for-profit organizations simply could not exist without the dedicated work of volunteers. While true “volunteers” are not subject to the protections afforded by employment-related legislation, organizations need to consider some of the potential risks which may arise with the use of volunteers. My colleague Michelle Henry provides some information on some issues organizations need to consider.
Question: Is a volunteer considered an employee?
Michelle: Volunteers are generally not considered to be “employees”. That said, under the Ontario Employment Standards Act, 2000, for instance, the term “employee” is broadly defined as including a person an employer allows, directly or indirectly, to perform work normally performed by an employee. There is no definition of volunteer in the ESA. As such, if the organization engages both volunteers and employees, it is important to ensure that volunteers are not performing the work of employees, and their roles are kept as separate and distinct as possible. Otherwise a volunteer may be viewed as an employee and may have certain rights and entitlements under employment-related legislations.
Question: Should there be a written agreement with a volunteer?
Michelle: Yes, having a volunteer agreement in place is recommended. Although not conclusive, an agreement or written document which sets out the voluntary nature of the relationship will be highly persuasive. Ideally, this would be in the form of an agreement signed by both parties before any voluntary activities are commenced. The agreement should address issues such as the activities the volunteer will perform, code of conduct, confidentiality and intellectual property ownership.
Question: Are there any special considerations if a volunteer is a minor?
Michelle: Yes, the organization should obtain the written consent of the minor’s parent or legal guardian.
Question: Does an organization need to get workers’ compensation insurance for volunteers?
Michelle: Volunteers are generally not considered workers under workers’ compensation legislation where no form of compensation is provided to the volunteer.
Question: Are there any other concerns before organizations take on a volunteer?
Michelle: There are a number of other concerns, and they will depend on each particular situation. I do want to mention two important areas. It is important for organizations to have proper screening protocols in place, and that appropriate background checks are conducted on volunteers, especially where the volunteers are working with vulnerable persons, such as children. The second is that organizations can be held vicariously liable for the actions or omissions of volunteers. Further, volunteers such as individuals who are members of the Board of Directors of an organization can be exposed to potential civil liability. That being the case, it is imperative that organizations have appropriate insurance coverage in place to cover these potential liabilities.