Economic & Legal Impact of Utilizing Volunteers

Economic & Legal Impact of Utilizing Volunteers

Utilizing Volunteers During DisastersUtilizing Volunteers During Disasters

Edward Anderson, MA, MBA, JD-C, CEM

City of Pasadena Public Health Department

Bioterrorism & Emergency Operations Unit

Is the City Liable?Is the City Liable?

On December 20, 1996, Aurora Munoz attended a social function at the City of Palmdale's Senior Center. She was injured when a coffee pot fell from a serving shelf and splashed hot coffee onto her leg. Ron Helmer, an unpaid volunteer at the Center, had placed the pot on the shelf. There were no prior similar incidents.Mr. Helmer has voluntarily provided free services to the Center since 1983. His voluntary services included setting up tables and chairs, making coffee, and occasionally mopping the floors. He has never asked for or received either payment or benefits of any kind in return for his services. Mr. Helmer has freely performed these services without compulsion or coercion stemming from any court order, community service decree, or other obligatory requirement. He has never received any training from the City concerning the performance of his voluntary services.

ResultsMunoz v. City of Palmdale; Sept. 30, 1999ResultsMunoz v. City of Palmdale; Sept. 30, 1999

The Court of Appeal held that a uncompensated volunteer who places a coffee pot on a serving shelf was neither an “employee” nor “servant” of the city under statute governing public entities‘ liability for acts of employees, regardless of whether city had the right to control volunteer.Therefore, the city is NOT liable for injuries to attendee. West's Ann.Cal.Gov.Code §§ 815, 815.2; West's Ann.Cal.Labor Code § 3352.Under the volunteer exclusion unpaid volunteers of public agencies are excluded from the definition of “employee” for workers' compensation purposes. Labor Code sec. 3352, subdivision (i).Accordingly, the City is immune from potential vicarious liability for volunteer actions.

PropositionProposition

Volunteers are economically needed. But volunteers pose a risk. Knowledge of relevant law and taking certain

risk management action steps can mitigate liability.

ObjectivesObjectives

Economic Impact of Volunteers

Legal Framework of Specific Laws Regarding Volunteers

Risk Management of Volunteer Programs

Economic Impact of VolunteersEconomic Impact of Volunteers

Volunteers Are Needed

“Don't ever question the value of volunteers. Noah's Ark was built by volunteers; the Titanic was built by professionals.”

Volunteers Fill Staff Shortages During Catastrophic DisastersVolunteers Fill Staff Shortages During Catastrophic Disasters

During the 911 WTC Relief operation, Red Cross deployed over 48,000 volunteers

Hurricane Katrina had thousands of volunteers deployed from around the U.S. and North America.

During a Pandemic it is expected that up to 40% of staff in multiple industries will be affected.

Volunteers Impact Bottom LineVolunteers Impact Bottom Line

"Volunteering is not just nice, it's necessary."

According to the 2001 Independent Sector's Giving & Volunteering Survey, 83.9 million Americans over 21 volunteered 3.6 hrs/week.

Based on $15.40/hour, this is equivalent to over 9 million FTE’s that equal $239 billion.

Volunteers Impact Bottom LineVolunteers Impact Bottom Line

Today’s current dollar value is $16.54/hour.

Assuming the same number of volunteer hours, the total dollar value of volunteer time is estimated at $256.4 billion.

Compare GDP to a $256.4 Billion Volunteer ImpactCompare GDP to a $256.4 Billion Volunteer Impact

U.S. GDP = $13.13 trillion (19.5%)

Swiss GDP = $255.5 billion

Portugal GDP = $210.1 billion

Ireland = $180.7 billion

Costa Rica = $50.89 billion

Economics & VolunteersEconomics & Volunteers

Any lawsuit severely impairs the economic potential of the agency and could have irreparable harm on the goodwill of the agency. (We will see examples of this in the Cases Studies)

Volunteers play an important role in the operation of most every profit and non-profit agency because they offer specialized and professional skills needed.

Legal MythsLegal Myths

Believe It or Not – Laws - Fact or Fiction?Believe It or Not – Laws - Fact or Fiction?

It is illegal to spit, except on baseball diamonds.

Fact! CA Law

No vehicle without a driver may exceed 60 miles per hour.

Fact! CA Law

It is illegal to sell your children.

Fact! FL Law

Men may not be seen publicly in any kind of strapless gown.

Fact! FL Law

Believe It or Not – Laws - Fact or Fiction?Believe It or Not – Laws - Fact or Fiction?

It is against the law to throw a ball at someone's head for fun.

Fact! NY Law

The penalty for jumping off a building is death.

Fact! NY Law

Having sexual relations with a porcupine is illegal.

Fact! FL Law

Believe It or Not – Laws - Fact or Fiction?Believe It or Not – Laws - Fact or Fiction?

Lawsuits against volunteers and nonprofits are on the rise.

Fiction!

Volunteers get injured more than employees.

Fiction!

Nonprofits are not prepared for volunteer liability.

Fact!

Myth #1: Nonprofits Lawsuits are CommonMyth #1: Nonprofits Lawsuits are Common

Over the past two decades, the average media consumer would be under the impression that the nation is awash with lawsuits, greedy trial lawyers and out of control juries.

The facts reflect a different reality.

According to a 1988 study by the Insurance Services Office, lawsuits represent less than a third of total liability claims.

Approximately 32 percent of all liability claims involve a lawsuit, and only 2 percent of all claims are settled by a jury or judicial verdict.

Myth #1: Nonprofits Lawsuits are CommonMyth #1: Nonprofits Lawsuits are Common

What are the statistics on lawsuits brought against volunteers for injuries NOT caused by willful and wanton misconduct?

The answer to this question depends on which state you are from.

For example, a computerized search on both Lexis and Westlaw for cases where the terms "volunteer" and "liability" or "nonprofit" appear was done for Connecticut. This data base included all Supreme and Appellate Court decisions and all officially reported trial court cases where there is a written opinion. We were unable to find any cases. There were cases involving a volunteer fire department, the relationship of nonprofits, and similar cases but nothing involving volunteer liability that led to an award for damages.

Myth #2: Volunteers Suffer More InjuriesMyth #2: Volunteers Suffer More Injuries

Evidence suggests that volunteer injuries are infrequent and minor, and volunteers don’t appear to get hurt anymore often or severely than employees. The low cost of volunteer accident insurance supports this premise.

A greater risk may be that the volunteer harms another person, such as another volunteer, an employee, or a client. Organizations can be held liable if they do not meet an appropriate standard of client care and are deemed negligent in an injury to a client.

Myth #3: Managing Volunteers From a Distance Protects Against Liability

Myth #3: Managing Volunteers From a Distance Protects Against LiabilityVicarious Liability: nonprofits can be found responsible for volunteer actions acting within the scope of his or her duties, even if the nonprofit is faultless. The entity that directs and benefits from an individual’s actions should bear the costs of any resultant harm.Respondeat Superior: if a "servant" acts negligently and causes some damage while performing his or her assigned work, the "master" is legally liable for that damage. Society imposes the liability whether or not the "master" was negligent or at fault in any way. Factors: (1) degree of control exercised over the volunteer; (2) scope of the volunteer’s position; and (3) benefit the organization derives from volunteer’s services. Volunteer organization MUST oversee and manage the work of volunteers on its behalf in order to reduce the chance of an incident.

Case Study #1Case Study #1

Concerned Parents v. Gilmore Supreme Court of ColoradoNo. 00SC950; April 22, 2002

What Result?What Result?

Brian Gilmore, a minor, was ordered by the Pueblo County Court to participate in the Juvenile Offender Redirection Program (“JORP”) offered by Concerned Parents. Gilmore was assigned to a JORP work crew to clean a creek near Pueblo. Because Gilmore was misbehaving, a supervisor ordered him to remain near the van that had transported the crew to the creek.The van contained gasoline containers that were unsecured. Gilmore's pants got soaked with gasoline which subsequently ignited, resulting in injury to Gilmore.Gilmore's parents brought suit on his behalf, asserting a claim of negligence against Concerned Parents. No claims were brought against any of the individual volunteers who staffed the work crew at the time of Gilmore's injury.Concerned Parents filed a motion to dismiss, arguing that it was entitled to immunity under State Immunity law (13-21-116(2.5), 5 C.R.S. (2001) and 19-2-404(2), 6 C.R.S. (2001).

ResultsConcerned Parents v. GilmoreResultsConcerned Parents v. Gilmore

The Supreme Court held that statute granting immunity to volunteers working with young people did not extend to non-profit organization itself.This court determined that although a volunteer is protected by state statute, a non-profit corporation is not immune from liability. The court held that state law section 13-21-116(2.5)(a) protects people who work as volunteers for designated types of organizations from liability. It does not, however, insulate those organization themselves from liability.

Legal FrameworkLegal Framework

Specific LawsSpecific Laws

Federal Tort Claims Act (FTCA)Federal Tort Claims Act (FTCA)

The FTCA is a statute enacted by Congress in 1946 permitting private parties to sue the United States in federal court for most torts committed by persons acting as agents of the United States.

Liability under the FTCA is limited to “circumstances where the U.S. would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

The FTCA exempts claims based upon the performance, or failure to perform, a “discretionary function or duty.”

FTCA is the predominant coverage under medical malpractice for health centers across the country. 880 of 1,200 health centers are “deemed” under FTCA.

Federal Tort Claims Act (FTCA)Federal Tort Claims Act (FTCA)

Who Is Covered Under FTCA? Officers, the governing board, and employees of the covered entity, and volunteer free clinic health care professionals and/or individual providers.

Who Is Not covered Under FTCA? Corporations, volunteers, residents who are not employees, providers billing directly, part-time contractors not in the primary care specialties, sub-grantees, third parties, and activities outside the scope of project or employment agreement.

American Tort Reform AssociationAmerican Tort Reform Association

According to the American Tort Reform Association, between 1986 - 1999, 30 states enacted restrictions on punitive damages capping amounts that can be awarded.

Seven states also capped non-economic damage awards. Recently, 20 states passed laws restricting citizens' ability to hold corporations and other individuals accountable in court.

In 1997, Congress passed the Volunteer Protection Act, immunizing volunteers from lawsuits for negligence.

Case Study #2Case Study #2

Avenoso v. Mangan

Superior Court of Connecticut

No. CV054009152; Feb. 14, 2006

What’s the Expected Outcome?What’s the Expected Outcome?

On the evening of June 5, 2003, Michael Avenoso was participating in a soccer practice coached by Mangan, who was the agent of the soccer club. As part of the practice activities, Mangan ordered Michael Avenoso to “run the soccer field.” Michael Avenoso was injured when Mangan, who was running alongside him, tripped and fell on top of him. Avenoso files negligence action against Mangan.On August 12, 2005, Mangan filed a motion for summary judgment on the grounds that (1) the plaintiffs' claims against Mangan are barred by the federal Volunteer Protection Act (2) the plaintiffs' claims against Mangan are barred by our Supreme Court's decision in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), and (3) the soccer club cannot be held liable if the court grants summary judgment on behalf of Mangan, because the claims against the soccer club are based solely on vicarious liability.

ResultsAvenoso v. ManganResultsAvenoso v. Mangan

Soccer coach was immune from liability under federal Volunteer Protection Act regarding personal injuries that soccer player allegedly sustained when coach purportedly tripped and fell on top of player during practice. The soccer club was a nonprofit organization, coach was a volunteer and never received compensation for coaching activities, and the injuries allegedly occurred while player and other players were engaged in game as part of soccer practice. Volunteer Protection Act of 1997, §§ 4(a), (6)(4)(B), (6)(6), 42 U.S.C.A. §§ 14503(a), 14505(4)(B), 14505(6).

Volunteer Protection ActVolunteer Protection Act

On June 18, 1997, the Volunteer Protection Act of 1997 was enacted into law by Congress to limit lawsuits against volunteers serving governmental agencies.

Drafted in response to the withdrawal of volunteers from service to nonprofit organizations because of concerns about possible liability.

By limiting lawsuits against volunteers, governmental entities could promote and provide its services at reasonable costs because volunteer service would increase.

Volunteer Protection ActVolunteer Protection Act

The Act generally provides that, if a volunteer meets certain criteria, he or she has a complete defense and has no liability.

Even when a volunteer does not meet the criteria, he or she may still have some protection against awards of non-economic and punitive damages, as long as the volunteer has not engaged in specific types of prohibited conduct.

However, the Act does not prohibit lawsuits against volunteers. At best, it provides a defense for the volunteer, if and when he or she is sued.

Volunteer Protection ActVolunteer Protection Act

The Act does not apply where the volunteer action: (1) constitutes a crime of violence or terrorism, (2) constitutes a hate crime, (3) involves a sexual offense, (4) has been found to violate a Federal or State civil rights law, or (5) was under the influence of drugs/alcohol at time of misconduct.

Preemptive Effect. The Act generally preempts the laws of any State. The Act applies to all volunteers unless State law provides more protection, or unless the State specifically eliminates the applicability of the Act to its citizens.

Exception: Act does not: (1) apply to actions brought by government against the volunteer; or (2) limit liability of the government unit.

Volunteer Protection ActVolunteer Protection Act

A volunteer is not liable for harm if the volunteer:

• was acting within the scope of responsibilities at the time of the act or omission.

• is properly licensed, certified or authorized by the appropriate authorities of the State for activities taken,

• is not guilty of willful or criminal misconduct, gross negligence, reckless misconduct, or "a conscious, flagrant indifference" to the rights or safety of individual harmed.

• harm was not caused by the operation of a vehicle, vessel or aircraft where the State requires a license and insurance.

Good Samaritan LawsGood Samaritan Laws

Good Samaritan laws in the United States are laws protecting from blame those who choose to aid others who are injured or ill. They are intended to reduce bystander hesitation to help for fear of being prosecuted for unintentional injury or wrongful death.

No person is required to give aid of any sort to a victim unless a caretaker relationship exists (parent-child or doctor-patient).

First aid provided cannot be in exchange for reward or money. Thus, medical professionals are not protected by Good Samaritan laws when performing first aid during employment.

The responder is not legally liable for the death, disfigurement or disability of the victim as long as he acted rationally, in good faith, and at their level of training.

Good Samaritan Laws are very specific to states.

Good Samaritan Liability Improvement & Volunteer Encouragement Act 2005Good Samaritan Liability Improvement & Volunteer Encouragement Act 2005

On September 23, 2005, Good Samaritan laws were expanded to protect disaster relief volunteers, medical professionals and non-profit organizations from liability and the fear of litigation during disaster recovery efforts.

Disaster relief volunteers will not be held liable for harm caused in carrying out their volunteer activities in connection with disaster relief unless their act constitutes willful, knowing or reckless misconduct;

Medical and other professionals can volunteer their services for disaster relief services if licensed in their home state regardless of where the declared disaster occurred;

Good Samaritan Liability Improvement & Volunteer Encouragement Act 2005Good Samaritan Liability Improvement & Volunteer Encouragement Act 2005

A disaster relief volunteer is protected from liability even if volunteer is not working for a specific government unit;

Disaster relief volunteers can offer their services without subjecting their business partners or employers to liability;

Disaster relief volunteers are protected from punitive damages if actions are not willful, knowing or reckless;

Government is not liable for the acts or omissions of their volunteers unless it has willfully disregarded or is recklessly indifferent to the safety of the individual harmed.

Special Disaster LegislationSpecial Disaster Legislation

S.B. 1638 - Hurricane Katrina Emergency Health Workforce Act of 2005 (Refer to Handout)

H.R. 3736 - “Katrina Volunteer Protection Act (Refer to Handout)

State LawState Law

Liability is a highly complex area of law. Each state has different legal liability laws and standards. • For example, on May 19, 2008 the Governor of Georgia signed into

law a bill that has been informally named the "Corporate Good Samaritan Act" giving businesses and non-profit organizations additional liability protection when performing "Good Samaritan" acts in a time of emergency or crisis.

Understanding and interpreting liability is based on individual cases and varied interpretations of statutes in specific states. Some States offer greater volunteer protection than others.

Even given specific jurisdiction and specific set of facts, no one can predict with certainty lawsuit success.

Additional California Liability Protection Additional California Liability Protection California Emergency Services Act - provides statutory protection to certain medical volunteers who render services during a state of local emergency. Specifically, the Emergency Services Act mandates that physicians, nurses and other specified health care professionals, who render services during a time of war, state or local emergency, shall not be liable for any injury sustained as a result of that service except where the injury is caused by a willful act or omission. (California Government Code § 8659)

Emergency Services Act - also affords immunity to non-licensed medical volunteers in emergency situations. It provides that Disaster Service Workers volunteers and unregistered volunteers that are “duly impressed into service during a state of war emergency, a state of emergency or a local emergency” have the same degree of responsibility for their actions and enjoy the same immunities as officers and employees of the state and counties performing similar work for their respective entities. (California Government Code § 8657)

Additional California Liability Protection Additional California Liability Protection CA Business and Professions Code - has two provisions that specifically protect doctors who render emergency aid from liability for civil damages under specified circumstances. Good Samaritan immunity also extends to licensed registered nurses and vocational nurses who render emergency care “outside both the place and the course of that person’s employment.” But Immunity is lost if the nurse is grossly negligent. (California Business and Professions Codes § 2395-2396, 2727.5, and 2861.5)

California Health and Safety Code - provides protection against liability for individuals who render emergency care at the “scene of an emergency:”• “No person who in good faith, and not for compensation, renders emergency care at

the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered.” (California Health and Safety Code § 1799.102)

Updated Legislation: 2008 Session Updated Legislation: 2008 Session AB 880 NAVAExisting law assigns liability for an injury occasioned to another by his or her want of ordinary care/skill in the management of his/her property or person, exempting certain health care providers who render services during a state of emergency. This bill would additionally exempt a private business entity or nonprofit organization that is duly enrolled or registered with OES or a responsible county/city emergency management entity.

AB 2796 – Disaster Liability indemnification Provides limited immunity from liability for businesses and nonprofit organizations that voluntarily, without compensation or expectation of compensation, provide resources, facilities and services in response to a declared emergency at the request of public emergency responders.

SB 546, Dutton. Office of Emergency Services: public-private partnerships. Provide guidance to business and nonprofit organizations representing business interests on how to integrate private sector emergency preparedness measures into governmental disaster planning programs.

Updated Legislation: 2008 Session Updated Legislation: 2008 Session

H.R. 2067: Good Samaritan Protection for Construction, Architectural, and Engineering Volunteers Act - To provide construction, architectural, and engineering entities with qualified immunity from liability for negligence when providing services or equipment on a volunteer basis in response to a declared emergency or disaster.

California to adopt the Uniform Emergency Volunteer Health Practitioners Act - The legislation would allow doctors, nurses, pharmacists, coroners, emergency medical technicians and veterinarians who aren't licensed in states struck by disaster to get quick authorization to offer medical help.

Case Study #3Case Study #3

Elliot v. La Quinta Corporation U.S. Dist. Court, N.D. Mississippi

Delta Division; No. 2:06CV56March 8, 2007

Expected Outcome?Expected Outcome?

16 year old Christopher Elliot was swimming in the pool at the La Quinta Inn while on a trip with a community youth basketball team. Several hours later he was found dead due to drowning.His parents filed a wrongful death lawsuit alleging that Defendant, Jeanette Ollie (Shaw Athletic Youth Association), undertook and assumed a duty to supervise the minors in the group while in Jackson, Mississippi, but negligently failed to do so. Ms. Ollie claims defense under the Volunteer Protection Act.Parent’s claim that the Volunteer Protection Act does not apply to Ollie or the Shaw Athletic Youth Association because the organization has not received any federal designation as a qualifying nonprofit exempt organization under 26 U.S.C. § 501(c)(3).

ResultsElliot v. La Quinta Corporation ResultsElliot v. La Quinta Corporation

“Organization” has an extremely broad definition under the Volunteer Protection Act. In addition, the youths traveled to Jackson together as a team to engage in recreational sport. Thus, the court finds that the group constitutes an organization for the purposes of the Volunteer Protection Act. Under this Act a volunteer is not liable for simple negligence. The plaintiffs have only alleged simple negligence against defendant Ollie. Accordingly, the plaintiffs have no possibility of recovery against Ms. Ollie.

Risk ManagementRisk Management

Mitigating Legal & Economic LossMitigating Legal & Economic Loss

Important Risk Management RemindersImportant Risk Management Reminders

Within certain limits, anyone can file suit against anybody at any time.

Laws can give you a defense, and insurance policies can help pay for legal defense and for loss or damages, but they do not replace a common-sense approach to protecting your volunteers.

Understanding Risk ManagementUnderstanding Risk Management

Why is Risk Management Important? Activities undertaken by volunteers involve some specific risks. An agency cannot remove all risks, but it can reduce the risk.

Purpose of Risk Management Plan is to reduce:

• (1) the risk of harm to volunteers and the individuals they serve;

• (2) the risk of financial loss to volunteers and the agency they serve;

• (3) the potential for damage to the agency’s intangible assets such as its reputation, its partnerships, and its ability to recruit volunteers and raise funds.

General Principles of Risk Management in Volunteer ProgramsGeneral Principles of Risk Management in Volunteer Programs

View every volunteer interaction as chance to manage risk.

Selecting volunteers: Recruiting and screening volunteers ensure they are suited for their roles. Recruiting materials can manage risk by helping potential volunteers determine whether serving in your government unit suits them. Not every volunteer will be a good fit for you.

Preparing Volunteers for Roles: The better prepared volunteers are to fill their roles, the smaller the chance of unintended harm. Volunteers need to know what they should and should not do. Your agency’s volunteer position descriptions, code of conduct, training, and exercises are part of this strategy.

General Principles of Risk Management in Volunteer ProgramsGeneral Principles of Risk Management in Volunteer Programs

Proper volunteer utilization: A clear plan for activating the volunteer can help ensure that volunteers have a clear mission and provide for their physical and emotional well-being.

Protecting safety and well-being: Providing volunteers with protective equipment to safely fulfill their roles, ensuring the areas they work in are safe, and protecting the physical and emotional well-being are ways of protecting your volunteers.

Waivers and Consent forms: Waivers and informed consent forms can help decrease the likelihood of lawsuits and improve the legal defense of your government unit if a lawsuit is filed.

Risk Management ChecklistRisk Management Checklist

Position descriptions: Each position or volunteer role should have a written description with as much detail as possible, to include: Purpose of the position, Title, Location (if known), Key responsibilities, Sample tasks/activities, Who the volunteer reports to, Length of appointment/time commitment (if known/applicable), Qualifications (including required training), and Support provided (what the volunteer can expect from the organization).

Documented screening policy: Consistent application review, Standardized Interviews based on position description, Standard Reference checks, Verification of licensure and credentials, and Criminal background checks.

Risk Management ChecklistRisk Management Checklist

Orientation & Training: (1) Clarify expectations of your volunteers & what is not allowed even if intuitive; (2) Provide written policies as a reference; (3) Give orientation to agency mission and policies; (4) Give training appropriate to roles, safety and protective equipment.

Additional policies: (1) Confidentiality of personal information; (2) Fundraising/handling funds; (4) Alcohol and drug use; (5) Safety guidelines; and (6) Activation/deployment and deactivation procedures.

Policy for termination of volunteers: (1) Clarify which actions warrant dismissal; (2) Document decisions; (3) Do not fail to act; and (4) Apply policies consistently.

InsuranceInsurance

Buying insurance is NO substitute for practicing risk management.

When losses occur, insurance is one of many methods available for financing losses. But insurance does not prevent a loss from occurring.

ConclusionConclusion

Volunteers are needed. Volunteers offer a significant positive economic impact to agencies and nonprofits.

But volunteers pose risks. Knowledge of the relevant law and taking certain risk management action steps will mitigate liability.

Lack of funding and fear of liability should not hinder philanthropies.

Nonprofit work and the law can go together and work hand-in-hand.

Edward Anderson, MA, MBA, JD-C, CEM

EAnderson@cityofpasadena.net