Many not-for-profit organizations use and encourage the participation of unpaid volunteers to further their worthy missions. Indeed, volunteer participation is essential to the efficient operation and success of many such organizations. According to the Urban Institute, in 2012 nearly 26.5% of American adults donated their time by volunteering. In doing so, they contributed 12.7 billion hours and an estimated $259.6 billion in added value. While most volunteer time (26.1%) was spent on administrative and support activities, many volunteers (20%) provided social services like food preparation, collection and delivery of donations, as well as direct care, education, counseling and mentoring. Not-for-profit organizations also often have volunteer boards of directors. Needless to say, not-for-profits may be responsible for overseeing volunteers performing a wide variety of activities on their behalf.
While essential to the organizations they serve, volunteers are a source of potential liability. A not-for-profit organization that critically assesses its own risk related to its volunteer activities can better manage and minimize potential liabilities. State law controls many aspects of volunteer liability—the details about how and when liability may exist varies across the country. Broadly, however, there are three areas of concern for a not-for-profit organization using a volunteer workforce: (1) liability of a volunteer to a third party for acts done while volunteering; (2) liability of an organization to third parties for harmful acts by volunteers; and (3) liability of an organization to a volunteer for an injury sustained by the volunteer while providing services. An overview of each of these is presented below along with some tips to manage the risk.
Liability of individual volunteers to third parties
The most robust legal protections apply to the individual liability of volunteers. The Federal Volunteer Protection Act (42 U.S.C. § 14503), passed in 1997, generally absolves not-forprofit organization volunteers from liability for harm caused when (1) the volunteer was acting within the scope of his or her responsibilities; (2) the volunteer was properly licensed, certified, or otherwise authorized to act when appropriate or required; (3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct or a conscious, flagrant indifference to the rights or safety of the third party harmed; and (4) the harm was not caused by a vehicle for which insurance or a license is required to operate. The Volunteer Protection Act provides a minimum level of liability relief for not-for-profit volunteers across the country. Most states have legislation providing greater or additional protections for volunteers.
- Consider liability insurance. Potential volunteers may find this an attractive incentive when considering whether to work with an organization. Some policies may cover, or provide the option to cover, volunteers acting on behalf of the insured organization. Officer and director volunteer insurance is often distinct from insurance for other types of volunteers. Always review insurance policies closely so you know exactly what is covered.
- Provide support materials to volunteers. Orientation, training, a handbook and a chain of command where questions or issues may be reported can better ensure a volunteer is prepared for his or her responsibilities and decrease the chance of injury to a third party.
Organization liability for injuries caused by volunteers
Not-for-profit organizations were once insulated from a great deal of liability by charitable immunity laws. Most states have now completely, or partially, repealed these immunity laws because barring victims injured by the negligent acts of not-for-profit organizations from seeking compensation was determined to be bad policy. Today, in most jurisdictions, an organization may be liable for injury caused to third parties as a result of a volunteer’s action when the organization was aware, or should have been aware, of a potential for harm.
- Prepare detailed volunteer job descriptions. A job description clarifies what activities the volunteer is authorized to perform on behalf of the organization, thus decreasing the chance an organization will be held responsible for any unanticipated actions by volunteers.
- Consider an indemnification agreement. A volunteer executing an indemnification agreement agrees to hold the organization harmless for his or her acts. This type of contract term is usually enforceable for unintentional injury, but may dissuade individuals from volunteering for fear of personal liability.
- Consider purchasing liability insurance. Insurance policies vary substantially in terms of who and what activities are covered. Multiple polices may be necessary. For example, an organization may carry both commercial general liability and directors and officers liability insurance. Again, always review insurance policies closely so you know exactly what is covered.
- Develop policies and procedures. Policies and procedures governing the work of volunteers ensure that there are uniform standards regarding volunteer roles, expectations and training.
- Assess your risk. Create a risk management team that will identify and manage areas where liability is a significant concern to the organization.
Organization liability for injury to volunteers
When a volunteer is injured while providing services, the organization for which he or she was working may be liable. Injuries include physical harm such as medical bills incurred after a car accident that happened while an individual was volunteering. Volunteers may be able to sue in instances other than physical injury. For example, many federal and state laws that protect employees also apply to unpaid volunteers. Not-for-profit organizations need to evaluate all types of potential harm to volunteers, including possible damages from employment-type claims.
- Consider a liability waiver. A volunteer executing a liability waiver agrees to forgo any claims against the organization in the event the volunteer is physically injured while providing services. As additional protection, program participants (those individuals receiving services provided by the organization and its volunteers) may also be asked to waive the right to sue if they are injured. Be aware that volunteers and participants may not be willing to agree to such a waiver and that all waivers may not be enforceable. A waiver is more likely to be enforced by a court if it is specific and reasonable given the volunteer’s activities.
- Provide support materials to volunteers. Orientation, training, a handbook and a chain of command where questions or issues may be reported all decrease risk by minimizing the chance of an incident in the first place. In the event of an accident, these support materials decrease the likelihood that a volunteer will seek recovery from the organization.
- Avoid providing anything of value to volunteers as compensation for their work or time. A not-for-profit organization should avoid accidentally creating an employeremployee relationship with a volunteer because of the myriad of associated obligations like wage and hour requirements, overtime pay and other benefits to which employees are entitled. Volunteers are permitted to be reimbursed for expenses actually incurred while undertaking volunteer activities without forming an employeremployee relationship with the organization.
- Review employee-volunteer practices. Nonexempt employees should generally not perform volunteer duties for their employerorganization that are the same as, similar or related to their regular job responsibilities.
- Manage volunteers in a fair and nondiscriminatory manner. Certain employment laws, including nondiscrimination statutes, have been found to apply to volunteers that are not otherwise considered employees.
- Consider purchasing liability insurance. Employment practices liability insurance is available to not-for-profit organizations.