While we often think of volunteers for nonprofit organizations in terms of traditional charities or religious organizations, there are many organizations with 501(c)(3) nonprofit status that wouldn’t typically come to mind.
The IRS defines a 501(c)(3) as an organization that is “charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals.”
What falls under the umbrella of the term “charitable” of course includes relief for economically or otherwise disadvantaged or underrepresented communities and individuals but also for the “advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.”
Because of this expanded definition, volunteers work for organizations that some may not immediately recognize as 501(c)(3) nonprofit organizations. Such was the case last year when a volunteer at a Film Festival in Los Angeles filed a punitive class-action lawsuit against the American Film Institute (AFI), a 501(c)(3) “dedicated to celebrating excellence and creating educational initiatives in film.” She sought compensation for meal and rest breaks as well as unpaid wages because of acting as an employee.
In the lawsuit, Woods claimed that because AFI was not a religious or charitable organization in the sense of helping those who were poor or disadvantaged/underrepresented, the organization was not qualified to have unpaid volunteers.
Ultimately, Woods lost her case and then again lost in appeals. The Court of Appeals noted that if Woods had been allowed to set this precedent that local community theaters, orchestras, and other cultural nonprofit entities would have to treat their workers as employees, even if the volunteers simply wanted to volunteer their time, saying: “Such a rule would have unforeseen and potentially devastating financial implications for such groups.”
Even though this case didn’t change any existing laws, it begs the question: what is the legal difference between volunteer and employee, and what are the current laws protecting unpaid volunteers and the businesses that work with them? Let’s answer those questions.
Using Volunteers Instead of Paid Staff: Laws Volunteers & Businesses Need to Know
Do nonprofit volunteers get paid? Not if they want to be considered a volunteer by California’s definition. The line between employee and volunteer is drawn deeply in the sand by very specific California volunteer laws, starting with California Labor Code – LAB § 1720.4. This code specifies a volunteer as “any individual who performs work for civic, charitable, or humanitarian reasons for a public agency or corporation qualified under Section 501(c)(3) of the Internal Revenue Code as a tax-exempt organization without promise, expectation, or receipt of any compensation for work performed.”
The last part of this labor code’s definition is of particular note: a volunteer works “without promise, expectation, or receipt of any compensation for work performed.” The code goes a step further in outlining that in order to be considered a volunteer, the following things must be true:
- There is no coercion/pressure on the person to be a ‘volunteer,’ either direct or implied.
- Any lodging, meals, transportation, expenses, or nominal awards are made appropriately within the context of the situation, not as a substitution for volunteer “compensation.”
- The person in question is not employed in the “construction, alteration, demolition, installation, repair, or maintenance work on the same project,” or “by a contractor, other than a…. 501(c)(3) … that receives payment to perform construction, alteration, demolition, installation, repair, or maintenance work on the same project.”
Because volunteers give of their time in ways that benefit society in ways small and large, for 25 years now, federal law has protected them from liability in some very important ways through the 1997 Volunteer Protection Act. California had its own laws in place prior to this time, but the federal law codified these protections on a national level. To this day, it offers specific liability protections for volunteers across both nonprofit organizations and government entities.
That protection states, in part, that “no volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity” with some very important ‘ifs’ attached. For these purposes, the most important one to note is that “the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.”
Noting that a volunteer would and could be held liable for damages caused by criminal and reckless misconduct or gross negligence is of utmost importance because while it absolves responsible volunteers, it also gives organizations a course of action should someone cause harm in a way that could and should have been avoided. It also discourages abuse of the goodwill in this law, protecting both volunteers and organizations as intended.
WORKER’S COMPENSATION FOR EMPLOYERS: WHAT YOU NEED TO KNOW
Getting hurt on the job is just as possible for volunteers as it is for employees. While workers’ compensation is required by California law, California volunteers’ workers’ compensation is not.
However, it may be advantageous to obtain coverage for volunteers in many cases. Labor Code 3363.5 enables public employers to extend the compensation for workers to volunteers also performing those services. The benefits are specific to medical, disability, and retraining costs associated with an injury/impairment while on the job.
As covered in Cal HR, because workers’ compensation is a “no-fault system” for injuries while on the job, this volunteer workers’ compensation insurance can save businesses from costly litigation down the road from an injured volunteer. In the civil court system, volunteers could sue not just for their injuries but for related damages, including pain and suffering. And if they could prove fault, the costs of awarding the damages sought are sure to run well over what the optional insurance would. Simply stated, when in doubt, take the optional insurance route.
The best time to hire an employment attorney is before you need one. Not only is it more cost-effective to hire a lawyer before you are sued, but the “wait and see” approach is costlier than you could imagine should litigation catch you by surprise. While we are very experienced in doing so, we don’t believe in only providing representation when a lawsuit is filed. We believe in prevention and are ready to help ensure you never face that lawsuit in the first place.
PROTECT YOUR BUSINESS WITH A PROACTIVE APPROACH BACKED BY PROPER DEFENSE
At Proper Defense, we are uniquely qualified to help your nonprofit or public agency navigate the continuously updated requirements of state and federal volunteer and related employment laws while making it as advantageous (and painless) as possible.
As the Proper Defense Civil Division Founder, I (Justin Vecchiarelli) personally focus my practice on employment and labor law. My extensive experience has helped businesses and organizations of all sizes make sure they are in compliance and continue to stay in compliance.
For a true advocate that you can trust, in a judgment-free zone, contact Proper Defense Law Corporation today. For a FREE consultation in the Fresno area, call (559) 825-3800. You can reach us at our Beverly Hills location by calling (424) 284-4066. You can also schedule an appointment online on our Contact Us page. It gets better with Proper Defense, we promise
We know we can successfully end your search for ‘top employment attorneys in California’ or ‘California labor law attorney’ (Los Angeles, Beverly Hills, Orange County, Fresno, Hanford, Madera, Merced, Tulare, and Visalia are all areas we serve).
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