Article Features Helene Leckman Leichter

Make Volunteer Programs a Financial Asset, Not a Liability

Helene Leckman Leichter is a municipal law attorney practicing in Palo Alto and the former city attorney for several Bay Area cities. She volunteers for the Stanford University Historical Society and serves on the Citizens’ Oversight Committee for the Palo Alto Unified School District. She can be reached at leichterlegal@gmail.com.

Seek Professional Advice

This article is not intended to provide an exhaustive survey of all laws and regulations applicable to government volunteers, particularly those performing fire and police functions, nor to serve as legal advice. Consult your legal counsel regarding your agency’s specific situation.

Financially challenged cities, in the midst of layoffs and other cost-saving strategies, still want to provide quality services. Volunteers typically help meet these service demands by performing simple tasks, such as shelving books and staffing information desks. However, with deeper budget cuts in place, volunteers are also performing more physically and intellectually demanding functions: building park structures, issuing parking citations and performing data entry and other information technology work.1

Reasons for volunteering have also changed. Traditionally volunteers are retirees looking to give their time and skills back to their community. As difficult economic times have resulted in a tight labor market, volunteers are now also interested in gaining new job skills and professional contacts.

Expanding service needs and changing volunteer expectations result in volunteers performing work with a much higher degree of potential liability, including using power tools, driving automobiles, handling cash and credit cards, working with confidential computer information and interacting with children. For example, the City of La Mirada uses volunteers to rehabilitate substandard housing for people with disabilities and elderly residents; the city provides power and gardening tools, housecleaning supplies and transportation.2 In La Mesa, volunteers use their own vehicles to transport seniors to appointments and shopping, with La Mesa providing mileage reimbursement and secondary liability insurance.3 In Long Beach, volunteers help maintain and beautify parks, pick up trash and perform landscaping maintenance.4

Using volunteers should augment city services in a financially neutral way. Increased potential liability should not impede this goal. This article provides guidance in identifying potential risks and strategies to reduce liability.5

Liability Risks

Risk in volunteer programs falls into three main categories:

  • Liability to the public from volunteer activities;
  • Liability to the volunteer from their own negligence; and
  • Liability to the agency if a volunteer displaces bargaining unit work.

Risk in all categories increases if the volunteer is deemed to be an employee. Payment of monetary compensation is not the sole factor in determining employment status. Compensation may also include discounts, provision of insurance, room and board and other tangible benefits. Controlling a volunteer’s performance — for example, having a public works supervisor directing the installation of a playground — may also transmute a volunteer into an employee.

Liability to the Public

General Tort Liability. If a volunteer injures a member of the public, it is unlikely a city will have to pay damages unless the volunteer is deemed to be an agent or employee of the city.6 Because
of the strong public policy encouraging volunteerism, the acts or omissions of volunteers should not be the basis for tort liability against a public agency. One court has stated that this policy “protect[s] against the serious drain on limited funds that would result if vicarious liability were permitted to be imposed for the alleged torts of unpaid volunteers.”7

Tip: Make sure volunteers are not employees. Adopt volunteer work descriptions; explicitly exempt volunteers from personnel rules and other oversight documents. Provide a volunteer handbook and basic training on how to use equipment, how city operations work and what a volunteer’s obligations are. Make sure insurance policies, including vehicle policies, cover volunteer acts and omissions.

Breach of Confidentiality. Volunteers using city computers and paper filing systems often have access to confidential information, including personnel information, addresses of law enforcement officers, criminal history information and utility billing information. Library volunteers often have access to registration and circulation records, which are protected from disclosure.8 Public agencies may be liable if inappropriate access, misuse or improper disclosure of such information occurs.

Tip: Include volunteers in policies that address handling confidential information. Train volunteers to recognize and handle confidential information appropriately.

Abuse of Minors, the Elderly or People With Disabilities. Criminal records checks help identify potential volunteers who may abuse minors, the elderly or those with disabilities. Volunteers involved in the care or security of these vulnerable populations must have their fingerprints taken and cleared by the California Department of Justice9 (DOJ). The DOJ also recommends fingerprinting those volunteers who do not have direct access but would work at the same sites as vulnerable populations. Finally, even other categories of volunteers may be fingerprinted if the city council adopts a resolution, approved by DOJ, requiring fingerprinting.10

Tip: Ensure that volunteers who have direct contact with vulnerable populations are fingerprinted. Consider adopting a resolution requiring other volunteers to be fingerprinted.

Liability to Volunteers

Cities may bear liability to volunteers under the same laws protecting regular city employees — wage and hour laws and protection from harassment and discrimination — if volunteers are deemed to be “employees” under those laws.11

Wage and Hour Laws. The federal Fair Labor Standards Act (FLSA) regulates wages and hours for city employees.12 The act recognizes the importance of encouraging volunteerism without the threat of liability and explicitly exempts volunteers from FLSA coverage if they freely serve without the expectation of or actual receipt of compensation and are not otherwise employed by the same city to perform the same type of work.13 California provides a similar exemption for volunteers on public works projects.14

Unpaid internships that offer small stipends or benefits, which are common in planning and administrative departments, may run afoul of the FLSA if they pay more than nominal expenses or stipends. Some expenses — uniforms, meals, transportation costs and even health and welfare benefits and minimal stipends — may be permissible if they are not a “substitute for compensation” or “tied to productivity.”15 In general, stipends should not exceed 20 percent of the cost of hiring someone to fill the position.16

Tip: Review all internship programs for FLSA compliance.

Discrimination and Harassment. Volunteers are not generally protected by federal and state discrimination and harassment laws unless they are deemed to be employees.17 To determine employment status, the traditional test under federal law was whether “significant remuneration” was given. This includes pensions, group life insurance, workers’ compensation, access to professional certification and even whether volunteer service usually leads to employment with the agency.18However, recent court decisions also look at whether the agency controls and directs the work of volunteers.19

Under the California Fair Employment and Housing Act, whether a volunteer is an employee is analyzed under California law, which provides that public employment is held by statute.20 Thus, a court will examine documents governing employment — ordinances, personnel rules and charters — to determine whether a volunteer is entitled to coverage.21

Tip: Again, ensure city documents specify that volunteers are not employees.

Workers’ Compensation Coverage. The definition of an “employee” under California workers’ compensation law is exceptionally broad,22 but volunteers are exempt from automatic coverage because they do not receive remuneration.23 However, there are advantages to providing workers’ compensation coverage to volunteers, including that workers’ compensation benefits are often the exclusive remedy for injuries. In order to provide volunteers with coverage, cities must have the city council declare in writing that a person is a “volunteer.”24

Tip: Adopt a resolution providing volunteers with the exclusive remedy of workers’ compensation for their injuries. In addition, ensure that volunteers sign a waiver of liability, including medical liability.25

Liability Under Labor Law

Cities must “meet and confer” with recognized employee organizations on matters “within the scope of representation” — for example, those decisions and effects of decisions that affect wages, hours and other terms and conditions of public employment.26 “Contracting out” work that is traditionally done by members of a particular bargaining unit is within the scope of representation.27 This is true even when bargaining unit work is eliminated and given to non-employees.28 However, supplementing current work tasks or implementing new tasks is not contracting out because it is not a transfer of bargaining unit work.29

Tip: Volunteer work descriptions and handbooks should clarify that volunteer work will not in fact overlap or displace bargaining unit functions. Actual work performed by volunteers should also be examined.

Conclusion

Cities should review policies and procedures for all unpaid interns and volunteers for risk management and statutory compliance purposes. Clarifying volunteer roles, responsibilities and status now can help avoid costly lawsuits from the public and volunteers in the future.

Footnotes:

[1] “Volunteering in the United States, 2011,” Bureau of Labor Statistics News Release, February 22, 2012, USDL-12-0329.

[2] “La Mirada’s Helping Hands Program Enables Needy to Maintain Homes,” Western City, April 2008.

[3] “La Mesa Gives Seniors a Lift,” Western City, April 2012.

[4] “Long Beach and Rotary Club Collaborate to Build a Park,” Western City, April 2010.

[5] This article is not intended to provide an exhaustive survey of all laws and regulations applicable to government volunteers, particularly those performing fire and police functions. Please consult with your legal counsel regarding your specific situation.

[6] The federal Volunteer Protection Act of 1997 protects a volunteer (not a city) from liability for negligent acts or omissions while performing their volunteer functions. 42 U.S.C. § 14503(a). The act does not protect gross negligence, criminal acts, reckless misconduct, “conscious or flagrant indifference to the rights or safety of the individual harmed by the volunteer,” or vehicle accidents if the vehicle is required to be licensed and insured. States can opt out of the coverage under the act, although California does not appear to have done so, relying instead on statutes providing immunity from liability to specific groups of volunteers; for example, individuals rendering emergency medical services or participating in emergency search and rescue operations. 42 U.S.C. §14503(b); Government Code § 50086; Health and Safety Code § 1799.102.

[7] Munoz v. City of Palmdale, 75 Cal.App.4th 367 (1999) — a senior scalded by a falling pot of hot coffee placed precariously on shelf by volunteer was unable to state claim under vicarious liability theory. Despite this case, the California Tort Claims Act provides that an “employee” can mean an uncompensated individual, so liability theoretically could accrue if a volunteer is deemed to be an employee. Government Code §§ 810.2, 815. See Townsend v. State of California, 191 Cal.App.3d 1530 (1987), finding that the issue of compensation was not dispositive of whether a person is an “employee” for liability purposes — in this case a student athlete from a public school who injured a spectator — but whether an employment relationship was formed.

[8] Government Code § 6267.

[9] Public Resources Code § 5164; Penal Code § 11105.3.

[10] Public Resources Code § 5164; Penal Code §§ 11105(b)(11), 11105.3.

[11] Many public officials are familiar with laws requiring their agencies to indemnify and defend them against claims brought by third parties. However, because courts have denied coverage under the Tort Claims Act in general on the basis that volunteers are not employees, it is unlikely that agencies are required to defend and indemnify volunteers. Government Code § 825(a); Munoz, supra.

[12] 29 U.S.C. § 201 and following.

[13] 29 U.S.C. § 203(e); 29 C.F.R §§ 553.101-103. The FLSA regulations note that whether two public agencies are the same agency for the purposes of determining coverage can be decided only “on a case-by-case basis,” although the treatment of the agencies by the U.S. Department of Commerce Census Bureau is a factor to consider. 29 C.F.R §§ 553.102(b). Likewise, the categories of occupations used by the Department of Labor’s Dictionary of Occupational Titles is a factor in determining whether “the same type of service” is being performed. 29 C.F.R § 553.103(a).

[14] Labor Code § 1720.4. Allowing minors to volunteer or intern is permissible under California wage law, but agencies must complete a “Request for Volunteer/Unpaid Trainee Authorization for California Minors,” CDE Form B1-6 (Rev. 04-12), to alert parents and schools of working hours.

[15] 29 C.F.R § 553.106; see DOL Opinion FLSA 2005-51 – $3675 stipend paid to volunteer coaches who also served as secretaries and custodians for same school district permissible. The DOL focused on the “economic realities of the situation” test stated in § 556.106 and examined what salaried coaches would be paid, and what that pay would be based upon, e.g., travel, expenses, hourly rate. The DOL stated that as long as the volunteer stipend was 20 percent or less of what a coach would be compensated, the stipend did not endanger volunteer status.

[16] Id.

[17] 42 U.S.C. § 2000e. Similar protections are afforded to older volunteers under the Age Discrimination in Employment Act, 29 U.S.C. § 620, and the Americans with Disabilities Act, 42 U.S.C. §12112.

[18] Pietras v. Board of Fire Commissioners, 180 F.3d 468 (2nd Cir. 1999); Haavistola v. Community Fire Company of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993); EEOC Compliance Manual, Section 2-111(A)(1)(c), “Volunteers.”

[19] Bryson v. Middlefield Volunteer Fire Department, 656 F.3d 348 (6th Cir. 2011); note that paid interns are not considered volunteers by the EEOC, and coverage under anti-discrimination laws is determined by examining all facets of the “employment” relationship, see EEOC Office of Legal Counsel Informal Discussion Letter, “Federal EEO Laws: When Interns May Be Employees,” December 8, 2011.

[20] Government Code §12920, 12926(c); Mendoza v. Town of Ross, 128 Cal.App.4th 625 (2005) — court looked to workers’ compensation law to reconcile employment status between two legislative schemes; see also Miller v. State of California, 18 Cal.3d 808, 813-814.

[21] Id.

[22] Labor Code § 3351. Disaster service workers — those registered with local Disaster Councils, public employees working outside their normal job functions, and those individuals “impressed” into disaster service — are automatically granted workers’ compensation coverage pursuant to Labor Code § §4350-4355; see also Labor Code §§ 3352.94, 3211.92 . Volunteer emergency workers are not covered.

[23] California Labor Code § 3352(i). California workers’ compensation law excludes those who provide voluntary service; for example, those who receive “no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses.” Public agencies sponsoring sporting events with officials paid by stipend and student sports teams, as well as those which officially recognize and support volunteer fire districts, and parks and recreation districts should consult Section 3352 et seq. for special rules and exclusions. In addition, reserve police officers assigned specific police functions are covered while performing those functions. Labor Code § 3362.5.

[24] Labor Code § 3363.5; see also California State University Fullerton v. Workers’ Compensation Appeal Board, 16 Cal.App.4th 1819 (1993) — a criminal defendant serving in community service program who provided landscaping services to the university was not entitled to coverage absent resolution by CSU Board extending coverage to such “volunteers.”

[25] Specific clauses should address waiver by parent and consent to participate on behalf of minor children, assumption of risk, release, indemnification, photo use and medical treatment clauses.

[26] Government Code §§3504, 3505.

[27] Long Beach Community College District, PERB Dec. No. 1941 (2008).

[28] Rialto Police Benefit Association v. City of Rialto, 155 Cal. App. 1295 (2007) — decision to contract out entire Police Department to county sheriff subject to meet and confer. In Rialto, because of the significant and adverse effect on the wages, hours and working conditions of employees, the court found unpersuasive the argument that the decision to contract out the entire department was not a fundamental management decision not subject to meet and confer. See also Building Material & Construction Teamsters’ Union v. Farrell, 41 Cal.3d 661 (1986). Note, however, that a decision to reduce a workforce without replacement by either paid contract employees or volunteers is not bargainable, although the effects on employees from the reduction may be. Fire Fighters Union v. City of Vallejo, 12 Cal. 3d 608, 621 (1974).

[29] It may however, be subject to meet and confer because of other reasons.

This article appears in the November 2012 issue of Western City
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