An appreciative nod to the Gene Takagi at Non Profit Law blog for linking to a Charity Lawyer post about a non-profit’s liability in respect to volunteers.
Guest blogger Deanna Rader notes that a non-profit may be liable for the actions of their volunteers under a doctrine known as respondeat superior which holds that an employer can be responsible for the acts an employee commits in the course of executing their duties. Some states have extended this concept to include volunteers.
In this context, Rader suggests that care be taken in selecting and training volunteers.
* How will volunteers be utilized? The risk of liability increases as the volunteer is given more responsibility and independence. Carefully choose the responsibilities that will be given to volunteers. Also, there should be a clear delineation between the tasks performed by employees and those performed by volunteers.
* What selection criteria should be used? You should use care to ensure that the volunteers selected are fit to serve in the positions at your agency. Your selection criteria may differ based on the responsibilities given to different volunteers. If you are using volunteers to serve children, disabled individuals, or other vulnerable populations, your selection criteria may include a background investigation and criminal history check. If your volunteers sort food for a food bank serving adults, however, a background investigation may not be required.
* What training is necessary? Before putting volunteers to work, they need to be trained to perform the assigned tasks. Otherwise, you could be held liable for their negligent performance of those tasks if it causes injury to others. Also, the nonprofit organization could be held liable if a volunteer who is not properly trained injures himself or herself because of inadequate training.
* How will the volunteers be supervised? Volunteers should have appropriate supervision based on the tasks assigned. A warehouse volunteer who is performing physical labor may not need close supervision, whereas volunteers dealing with vulnerable populations may need to be closely monitored.
* How will problems be addressed? Although good volunteers provide invaluable assistance, bad volunteers can expose you to substantial liability. Do not be afraid to address problems head-on and terminate the volunteer relationship if a volunteer exhibits inappropriate behavior.
Rader also address injury that a volunteer might take in the course of the service to the non-profit. Employees are covered under worker’s compensation laws while volunteers are not. However, it is important to clearly delineate between the two categories of workers. In addition, employers have a responsibility to provide a safe work environment to everyone who may enter their premises, regardless of employment status.
“An employer also has a duty to maintain safe working premises for an employee. Many states have applied this doctrine expressly to nonprofit organizations, requiring them to maintain a safe place for volunteers to work or finding them to be negligent in failing to provide a safe place for a volunteer to deliver services. This duty can apply even if the volunteer is working off premises while providing services for the nonprofit organization, making the nonprofit corporation liable for the actions or inactions of a third party.”
Among the steps Rader recommends taking are having volunteers sign a general waiver and release that informs them about the possible hazards they may face. She also mentions having volunteers work with a buddy or a team so they are never alone.
All this seems very valuable for the performing arts. I have worked in places where volunteers have done everything from ushering to construction to driving farm tractors. There has been ample opportunity for them to injure themselves or each others. We rent our facility out to groups and have had other people’s volunteers damage equipment on a number of occasions for which we held the renter liable.
On the flip side, performance groups often don’t have their own facilities and have their volunteers meet them at an unfamiliar place like my theatre to help them put up a show. In such a situation, you are dependent on the performance facility’s maintenance program and good practices to keep your volunteers safe.