05.11.2022 | Linda J. Rosenthal, JD
Volunteers: A Primer on Possible Perils
Volunteers. For many nonprofits, they are key to success of the organizational mission. They provide valuable assistance and are vital links to the community at large.
One such group – a start-up community organization; let’s call it Organization X – is welcoming an energetic college student on summer break.
The Executive Director of Organization X is ecstatic that he’s getting some much-needed office help. To Valerie Volunteer’s delight, she’s not assigned to envelope-licking duty, but is asked to tackle the nonprofit’s fledgling social media presence. First up is the Facebook page.
She replies to the backlog of comments on recent posts, and updates the lackluster header with a fresh new design and image borrowed from the website of one of the comment-posters.
A messenger arrives while Ed Executive-Director is in a meeting. Ms. Volunteer signs off on a large delivery of promotional brochures although – unknown to her – there are significant mistakes by the printer.
Returning to her desk, she is flustered by a troubling response to one of her Facebook replies, along with an irate email about the misappropriated website image . . .
The young woman is offering her time, but drops hints that she could certainly use a few bucks an hour, if possible.
Can you see where this is going? It may not be all sunshine and roses that day at Organization X.
Mid-morning, on her way to the coffee machine, Ms. Volunteer slips on some liquid spilled earlier, and is in pain. Mr. Executive-Director rushes to her side, murmuring “there, there, dear,” and hugging her for a full ninety seconds.
Extricating herself from his attention, she slips back to her desk – and the social media problems.
Just before noon, Mr. Executive-Director takes some money from petty cash, and asks Ms. Volunteer to drive Organization X’s van to the printer to return the unusable brochures, and to pick up some sandwiches for the two of them on the way back.
The printer refuses to correct the mistakes, pointing to fine-print waivers on the delivery documents above the signature of Valerie Volunteer.
Still shaken from the morning’s ups and downs, she sideswipes a minivan of preschoolers from a nearby day-care center. Local reporters, arriving soon after the police, shove microphones in the face of Organization X’s newest worker . . .
And that’s just the first morning.
This little tale resembles the type of surreal hypothetical that a new law grad encounters on the bar exam. Each essay question is a time-condensed tale of woe or saga of outrageous wrongdoing. The newly minted Juris Doctor is asked to identify and analyze each and every possible legal issue, claim, or defense. From Day 1 of law school, that’s what prospective attorneys are trained to do: spot potential legal pitfalls in all types of situations.
You don’t have to be a lawyer, though, to apply this issue-identification technique to make good plans and decisions for your organization. It’s much better to predict and avoid problems ahead of time than to face (avoidable) expensive litigation or other serious consequences.
Volunteers: The Landscape of Predictable Trouble Spots
“The use of volunteers . . . entails risk both from and to volunteers.”
Our story about the roller-coaster morning at Organization X gives a glimpse of some of the perils.
Classification of Worker
What is a “volunteer”? Regardless of the label chosen by the organization and the worker, if the worker is not a true “volunteer,” then all labor and other laws pertaining to employees must be followed. This includes payment of at least minimum wage and overtime rates, observance of meal- and rest-break rules, and anti-discrimination standards.
Volunteers can be paid small stipends, but how much is too much? The term “volunteer” is not interchangeable with “intern.” And many so-called internships are not true internships, and are subject to minimum wage and other labor laws that apply to employees.
Actual, Apparent, and Ostensible Authority
By mid-morning, Valerie Volunteer is already taking actions that appear to be on behalf of the organization: managing the social media accounts and signing off on a printing contract performance. Will Organization X be legally bound by her actions, even if she’s not an officer or an employee with official authority?
Has she created problems with the social media activities? (Does Organization X have a social media policy or handbook, and if it does, is a volunteer bound by such a document?)
Has Ms. Volunteer been sufficiently vetted before she is allowed to interact with the public and make representations on behalf of Organization X? Has she been properly supervised?
Misappropriation of Intellectual Property
Valerie has borrowed a great image from one of the posters on the Facebook page. This is not a compliment; it’s a copyright violation. What are the consequences?
Liability of Organization and Key Personnel to Volunteer
Organization X may be liable in negligence for physical injury to anyone on its premises. But is Ms. Volunteer viewed as an ordinary third-party plaintiff or is she covered by workers’ compensation?
Mr. Executive-Director’s response to this incident has a whiff of sexual harassment. Is this a problem for Organization X? Is this a problem for Mr. Executive-Director – alone, or jointly with the nonprofit? Is a nonprofit liable under harassment laws? Is a volunteer protected by employment harassment laws?
Labor Law Violations
If Valerie is not a “volunteer” because she’s being paid too much, then has Mr. Executive-Director committed some labor-law faux pas? Employees must be given lunch breaks, and may not be asked or required to perform duties then. If she works during lunch, and also for the rest of the day, are there overtime violations brewing? Does paying for her sandwich change any of this? (And should Mr. Executive-Director be dipping into petty cash to pay for lunch – but that’s another topic entirely!)
Liability of Volunteer and Organization to Third Parties
Should she have been vetted about her driving competence before being given the van keys? She was upset; should she have been allowed to drive? Was she at fault for the accident? Who can be sued – Organization X, Ms. Volunteer, or both? Does Organization X’s insurance policy cover Valerie at all or in this sort of situation?
Then, of course, there’s the “film at 11” public-relations crisis-in-the-making.
We certainly don’t want to scare you away from accepting volunteer help – it’s much too valuable.
But there are lots of issues: forewarned is forearmed. And – hint – we’ve haven’t yet plumbed the depths of all the legal questions lurking in that madcap morning at Organization X.