Legal Risks of Working with Volunteers Lori J. Shapiro Employment Counsel Pro Bono Partnership of Atlanta May 24, 2016

2 Mission of Pro Bono Partnership of Atlanta: To provide free legal assistance to community- based nonprofits that serve the poor. We match eligible organizations with volunteer lawyers from the leading corporations and law firms in Atlanta who can assist nonprofits with their business law matters.

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Legal Information: This session presents general guidelines for Georgia nonprofit organizations and should not be construed as legal advice. Always consult an attorney to address your particular situation. © All rights reserved. No further use, copying, dissemination, distribution or publication is permitted without express written permission of Pro Bono Partnership of Atlanta.

Hypothetical: Happy Care Builders, Inc.  Nonprofit builds and operates childcare centers for homeless families  Sarah recommends Ben as a volunteer; Lisa agrees  Ben volunteers to help paint a play area in childcare center  Sarah gives Ben cash to pay for gas when he picks her up  Ben tries to put the tools in the car, and gets hurt  Ben asks Sarah out on a date  Ben appears to doze off, and hits another car  Ben has no license  Ben is a convicted sex offender

Legal Risks Highlighted in Hypothetical  Misclassification Risk (Volunteer v. Employee)  Potential liability for injuries or property damage to volunteers  Potential liability for injuries or property damage to third parties caused by volunteers  Potential workplace harassment claims by employees How Does An Organization Minimize These Risks?

Wage and Hour Laws  Are your volunteers truly “volunteers”? Entirely voluntary services Work done benefits agency more than volunteer Volunteer does not replace an employee No expectation of compensation Services provided during non-working hours Duties are inconsequential and distinctly different from employee duties

Other Laws That Apply to Work with Volunteers  Volunteer Protection Act of 1997 Protects volunteers from liability  Charitable Immunity (Georgia) Provides some protection for volunteer activities

How to Reduce Potential Liability  Require Application for Volunteers  Require Screening for Volunteers  Provide Written Rules or Standards of Conduct  Train and Supervise Volunteers  Provide a Safe Place to Volunteer  Obtain Appropriate Insurance Coverage  Use Waivers

Application/Screening of Volunteers  Volunteer Application Form Include EEO statement Include clause stating provision of false or incomplete information may result in termination  Interview Volunteers Use uniform questions focused on skills and abilities needed Be sure to address/document any areas of concern  Ask for references, and Follow up 10

Background Checks Perform background checks or driving record checks Important when working with vulnerable populations Need signed release and consent form that is separate from other documents Additional Resource: volunteers/background-checks 11

Written Rules/Standards of Conduct  Why do nonprofits care about having policies and procedures for volunteers? They are not employees. Sister Michael Marie v. American Red Cross (6 th Cir. Dec. 23, 2014) Importance of setting clear standards for behavior  Can be detailed or general  Key: No tolerance for inappropriate contact with clients, violations of state or federal law, and use of profanity or inappropriate language 12

Written Rules/Standards of Conduct Other Legal Risks that Can Be Addressed Though Policies and Procedures  Disclosure of organizational confidential or private information  Ownership of intellectual property created by volunteers (i.e. logo; newsletter; website content; photos taken), or including volunteer images (i.e. photographs or videos)  Use of the organization’s name, or making incorrect or negative representations (i.e. Internet posting, speaking with clients or the public)

Train and Supervise Volunteers  Ensure Volunteers understand expectations and responsibilities How to perform tasks How to remain safe To whom to raise concerns Limits of authority – signing agreements/spending funds  Verify with volunteers and participants that there are no issues on a regular basis 14

Provide a Safe Workplace  Safety in the Workplace Check for potential hazards, and conduct building safety checks First aid supplies are adequate and easily located Fire extinguishers visible and tested regularly Exit doors are not blocked Adequate lighting in all areas Electrical circuits are not overloaded Carpets, treads and tiles are secure Handrails and guardrails are in good repair Water leaks are quickly fixed 15

Obtain Appropriate Insurance  General Liability, Event, Automobile or Other Coverages  Knowledgeable insurance broker  Drivers must have license and personal coverage  Additional Resources nonprofits Nonprofit Risk Management Center: 16

Waivers  Do we have volunteers sign liability releases? Generally enforceable in GA, waivers help protect organization from lawsuits and set expectations of participants Should be clear, conspicuous, and unambiguous Additional Resources: Waivers_of_Liability-for_Volunteers1.pdf 17

Additional Resources For additional information, please see the following:  risks-of-working-with-volunteers risks-of-working-with-volunteers  volunteer-liability volunteer-liability  See information at Nonprofit Risk Management Center:

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