The Law on Volunteer Group Members
While some people may question whether volunteers have any rights under law, the Employment Rights Act, like it or not, does recognise volunteers, and there are certain fundamental protections afforded to volunteers.
Anti-discrimination protections
Under the Equality Act 2010, the volunteers you recruit should be protected from discrimination. The Equality Act protects individuals from direct and indirect discrimination because of their sex, age, race, disability, sexual orientation, gender reassignment, religion or belief, pregnancy and maternity, marriage and civil partnership, and (in some limited circumstances) because of their association with someone with one of the specified protected characteristics. The Equality Act 2010 requires employers and service providers to take positive action to help eliminate discrimination in the workplace and in society, and volunteers must not be treated less favourably because they have a particular protected characteristic or because they associate with someone who possesses a protected characteristic .
It is therefore good practice to ensure that your volunteers enjoy the same facilities, services and amenities as your employees. In implementing policies across the whole organisation, you will minimise the risk of volunteer discrimination claims.
Health and Safety Regulations
Health and safety laws apply to volunteers in the same way as paid employees. An organisation must take all reasonable steps to prevent any risks to life and health amongst its volunteers, just as they would for their paid employees. What is considered as "reasonable" will depend on the nature of the relationship between the volunteer and the organisation. For example, it may be reasonable to expect a volunteer to spot dangers at an arts festival, but not in a hospice environment where vulnerable patients are concerned.
Legal Liability and Protections for Volunteers
Although volunteers are often motivated to contribute their time and effort to support the important work of the many nonprofit organizations that serve our communities, there is the ever-present question of whether a volunteer may be liable for some act of negligence or other wrongdoing. On one level, the answer is definitely "no" – a "Good Samaritan" is not normally responsible for any damages they may cause while rendering assistance during an emergency situation.
On the other hand, volunteers can certainly be held liable for egregious acts or misconduct. For example, a volunteer administrator who steals money, sexually harasses an employee, or references a "climate survey" in a fundraising pitch, can be found liable for his or her damaging actions. When a volunteer’s act is directed at a plaintiff or aggrieved person, the person has a potential avenue for recovery, albeit, often in small dollar amounts.
More problematic for the organization is the risk of liability it may incur for its bad hiring and supervision practices, or perhaps even unwittingly directing a volunteer’s misconduct or submitting an application in which the volunteer misrepresents themselves or the activities in which he or she is volunteering.
There is also the question of whether the organization can be held vicariously liable for a volunteer’s misconduct. In a California case, workers’ compensation laws offered a water district protection from liability for a volunteer worker injured in falls within the confines of the water district’s property while cleaning fish in a spawning trench he had been instructed to prepare as part of his volunteer duties. The Court held that volunteers were not to be treated as employees for purposes of the workers’ compensation statute.
Federal law provides for immunity to volunteers under certain circumstances — The Volunteer Protection Act (Public Law 105-19) grants immunity from liability for nonprofit and governmental organizations and their volunteers, in cases where the volunteer was acting within his or her scope of responsibilities, the actions were neither reckless nor criminal, and the harm was caused by simple negligence. Immunity does not apply, however, where the harm is caused by the conduct of the volunteer that constitutes reckless misconduct. For purposes of the statute, "reckless misconduct" constitutes voluntary or intentional disregard for the consequences of speaking or acting, where the consequences may affect the rights or interests of another person.
Volunteers and Contracts
While it may be natural to think of volunteers as people who do good things for the community or organizations without any strings attached, the law sees this situation a little differently. When a volunteer has an accident or is harmed, the legal definitions regarding payment or injury may come into play. Therefore, it is very important to always have signed volunteer agreements or contracts in place before engaging volunteers in your organization.
While not every organization or type of volunteer requires a written agreement (e.g., the Girl Scouts of America), it is a good practice to have them in any event and for any organization or type of volunteer. In some cases an agreement or contract is required for certain types of volunteers, sponsors, or contractors. Under the IRS guidelines, compensation may be prohibited or limited for certain volunteer services, and while an agreement may not be required, it is a good idea to have one on file for tax purposes. Particularly for significant or long-term volunteerism, having an agreement is very important. In such case, the document should include a statement clarifying that the volunteer agrees to provide the services and not to engage in activities that directly beneficiaries the volunteer.
It is best to have an attorney draft general volunteer service agreements and more specific ones for specialized services. In addition to protecting your organization and ensuring that unpaid volunteers and unpaid interns are properly documented, you may want to allow volunteers to take the agreement home to review and come back with any questions or comments.
Employment Law within the Volunteer Sphere
When do volunteers need to be treated like employees? The Fair Labor Standards Act (FLSA) has some fairly stringent requirements for paid leave and overtime. Many nonprofits worry that their volunteers are getting themselves into trouble by working an excessive amount of time or by doing some things that might cause an unsafe/harassment complaint that would inappropriately link the nonprofit as the employer. A volunteer must be an "employee" under the FLSA to be protected. Case law makes it clear that what is required for someone to be a volunteer, is that the person not be "compelled" to do work. What does that mean? Doesn’t everyone have a "reason" for volunteering? Although the reasons can be some "self-interest," such as "I like doing good things" or "it looks good on my résumé," or "I have some skills I want to use," the courts have consistently made it clear that these "motivations" cannot be a condition of continued employment. In other words, a non-profit cannot require its volunteers to have these traits for volunteerism to be permissible under the FLSA. However, the courts have held that bona fide volunteers, who are not coerced to do any work, are not considered employees under the FLSA, and thus not protected by the FLSA (e.g., can be turned away from one agency to work for another, can leave the volunteer position whenever they want, do not receive compensation, etc.).
Additionally, when a volunteer gets training, experience, or some other benefit, the courts have made it clear that this is not necessarily enough to make the person an employee. Where a person is provided vocational or career training by an employer, this does not transform the person into an employee.
Courts have consistently held that if a nonprofit organization provides training to volunteers, that training does not create an employer-employee relationship. Again, it is important that the volunteer is not "required" to stay on after the training, but that the training is offered on a voluntary basis.
Volunteering can be a very tightrope like experience between you and a volunteer. Just make certain that you have solid policies and procedures that you can point to, should a question arise about the legality of the volunteer’s behavior.
Volunteer Background Checks and GDPR
The legalities that apply to employees generally apply to volunteers, with a few noteworthy exceptions (e.g., FLSA, FMLA, HIPAA). For this reason, organizations should consider conducting background checks and screenings of its volunteers.
This can range from inquiries into a volunteer’s social media accounts, to criminal history checks, and even more. Organizations should consider their specific field and context in determining the type and extent of checks and screenings that are appropriate:
Many states and some municipalities (usually those with large numbers of volunteers) have regulations pertaining to such checks, which may extend beyond criminal history checks . When screening volunteers, an organization should consider the following:
Under the Fair Credit Reporting Act, if an organization uses a third party for background checks, it must notify the voluntary, receive authorization, and give notice and an opportunity to dispute, if the result is adverse (i.e., some disqualifying information was uncovered).
Even if a third party background check is not performed, for various legal liability reasons, an organization should have a policy and procedure in place to document decision-making for volunteer screening.
Taxes and Volunteer Work
When it comes to taxes, the IRS has a long history of providing tax-free status for volunteer activities. In fact, volunteers have been one of the beneficiaries of an idea we have written many times about: That good deeds are rewarded. Of course, that is just in the absence of fraud. Fraud may cost you money in many ways, including tax payments. And, as to charitable activities, you may even lose your tax-exempt status. So it is worth exploring the different forms of volunteering, the IRS position on the resulting tax implications and some planning tips.
If you enjoy participating in charitable activities, the IRS rules permit you to deduct the expenses you incur out of your pocket even though you do not receive payment for your time. For example, if you decide to help your local Goodwill Store, you might find yourself driving your car to the store several times weekly. The cost of your gas can be considered a contribution, and you can deduct gas money at the rate of 55 cents per mile. Similarly, trips to the local soup kitchen you might volunteer for on Saturday can also be considered a contribution if you drive there in your own car.
Your out-of-pocket costs can be deducted for any charitable work that is not an "incidental" use of your current property. This means that if you donate time at a soup kitchen nearby, but also go to a concert in another state, you may not deduct the cost of your trip that goes well beyond the soup kitchen. However, if you decide to make the entire trip a charitable one, then it is a deductible contribution to the soup kitchen.
You cannot deduct the value of your time or services, and you also cannot deduct the value of property you contribute (other than mailings, for example, or the cost of advertising).
In addition, if you volunteer with a non-profit group that offers services like eye exams, dental work, haircuts, and other professional services, the government allows you to deduct the expenses you would have charged had you been paid, and the non-profit does not pay you for your services — these expenses may also be considered a contribution.
Volunteering Abroad and International Law
Navigating Legalities: Volunteers and the Law
Volunteering abroad may seem less formal than working for a company, but it is important to note that a volunteer still effectively represents their home country while abroad. From a legal perspective therefore, it is essential that both the volunteer and host country are considered. Generally speaking, volunteers have to apply for visas to other countries in much the same way that employees would. It is important to bear in mind however that, in some countries , you may be unable to volunteer or remain in the country long-term without a temporary or permanent resident visa or work permit to do so. The Vienna Convention on Diplomatic Relations (1961) was agreed by over 190 states and essentially says that diplomatic agents (diplomats) cannot be arrested or imprisoned, and that a diplomatic mission (embassy) is immune to hosting country laws. As with all conventions, there are exceptions to the rule. Volunteers should therefore be aware of whether the country they are visiting has signed and ratified the Vienna Convention, as well as what its rules are. It may also be prudent for an organisation to be able to provide volunteers with the relevant information, in case of a dispute should volunteers find themselves in trouble with local law.