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FREE LABOR Not So Much

Learn how Utah Volunteer Government Workers Act classifies volunteers as employees, affecting workers' compensation, liability protection, and auto liability. Get insights on compensatory service worker exceptions and authorizing volunteers.

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FREE LABOR Not So Much

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  1. FREE LABORNot So Much Managing the Risk of Volunteers

  2. Volunteers in General Generally, volunteers are just that, they volunteer their time, effort, equipment… at their own cost and at their own risk. Under the Utah Volunteer Government Workers Act (U.C.A. 67-20-1) volunteers to government agencies are considered employees for liability and volunteer related injuries.

  3. Volunteers Considered Employees for: • Workers Compensation medical benefits; • Liability protection and indemnification normally afforded a paid government employee; • Auto Liability if licensed and authorized to use government vehicle.

  4. Workers Compensation • Sole Remedy against employer • Volunteer cannot sue employer for damages arising out of injury • Limits risk to impact of claims on employer’s WC premium • Limited to medical benefits only • Reduces impact on Experience Modification Factor and premium costs • Solves problem of “Return to Work” for volunteers

  5. Exceptions to Lost Time Benefits • Volunteer Safety Officer • Exercises Peace Officer Authority under supervision of agency; or • If agency is a fire department the volunteer is on the rolls of agency and not regularly employed as a firefighter by the agency • Benefits paid based on Statewide Average Weekly Wage • Volunteer Search and Rescue Team Member • Certified as a member of a county sheriff’s search and rescue team; and • Acting in the capacity of a member of the supervising county sheriff’s team • Creates issues with non-county teams and volunteers from other counties • Benefits paid based on starting wage of a deputy THESE VOLUNTEERS CAN SIGNIFICANTLY IMPACT YOUR WC PREMIUM COST

  6. Compensatory Service Worker Exception • Compensatory Service Worker is employee for WC medical benefits only, not for liability and auto liability • Person performing public service with or without compensation for an agency as a condition or part of the person’s: • Incarceration; • Plea; • Sentence • Diversion; • Probation; • Parole. • But what about those ordered by the court to perform Community Service hours?

  7. Liability • “Protection and Indemnification normally afforded a paid government employee” • U.C.A. 63G-7-902 requires agency to defend and pay judgements against employees – and government volunteers • Volunteer actions afforded immunities and limitations on judgments

  8. Auto Liability • Treated like an employee • If driving an agency vehicle, covered like any other person using vehicle with permission • If driving personal vehicle, personal insurance is primary and agency insurance is excess • Like Liability, volunteer is provided immunity and limitations on judgements for driving activities

  9. Let’s Review • General Volunteer • WC Medical Benefits • Liability including Auto Liability • Volunteer Safety Officer • WC Medical and Lost Time Benefits (SWWW) • Liability including Auto Liability • Search and Rescue Team Member • WC Medical and Lost Time Benefits (Starting Deputy) • Liability including Auto Liability • Compensatory Service Worker • WC Medical Benefits Only

  10. Authorizing Volunteers • Because government volunteer’s are protected by immunities and tort limitations, plaintiff’s attorney’s may argue they were not a government volunteer • U.C.A. 67-20-4 “… a volunteer may not donate any service to an agency unless the volunteer’s services are approved…” • Must be approved by: • Chief Executive of the agency or an authorized representative; AND • The office of personnel having jurisdiction over that agency. • But: • If sheriff determines a search and rescue emergency exists, sheriff may approve a volunteer to provide law enforcement related activity in response to the emergency situation.

  11. Others That Don’t Clearly Fit in the Volunteer Definition • Student interns (see U.C.A. 53B-16-402, employee of school for WC) • Explorer Type Programs • Ride-a-longs • Jurors • (just kidding, jurors are defined as government volunteers!) • School or community group volunteers

  12. Volunteer Facilitator • A business or non-profit organization that provides employees or members to an agency or facilitates volunteer services with an agency • Volunteer Facilitators are immune from liability from damages or injuries arising out of or related to the volunteer service, unless: • The action of the volunteer is grossly negligent, not made in good faith, or made maliciously, and causes harm to a person or property; or • The Volunteer Facilitator fails to exercise due diligence in determining the fitness of a volunteer to provide voluntary service to the agency if the failure to exercise due diligence rises to the level of gross negligence, not in good faith, or malicious.

  13. Compensation • Volunteer defined as “a person who donates service without pay or other compensation… • …except expenses actually and reasonably incurred as approved by supervising agency.” • Many agencies provide per-diems, lunches, tickets, and other compensation • Providing any compensation that is not reimbursement of actual expenses opens the door to: • A plaintiff successfully arguing the volunteer’s actions are not protected by immunities and tort limitations; or • Having to recognize the volunteer an employee of the agency in all respects.

  14. Classifying Those Who Provide Service • Volunteer • Donated service with no compensation (other than expense reimbursement) • Independent Contractor • Written contract for service • Advertises and performs similar service to others • Provides their own equipment • Paid for service, not by the hour – profit is a gamble • Control of how work is performed is left to contractor • Professional Employee Organization (PEO) contractors • Employee • Anyone that provides service for compensation that is not an Independent Contractor. Employee may have a contract for employment, but during term of the contract, they are an employee

  15. Best Practice Volunteer Policies • Have all volunteer programs approved by governing body • Assign all volunteers to an approved program • Authorize volunteers for a specific time period, or you will need to regularly review rosters to remove inactive volunteers • Determine back-ground check policy based on service provided • Policy for authorizing volunteers quickly when necessary • Restrict high risk activities • Add “volunteers” to personnel policies, be sure to include: • Drug testing • Discipline • TRAIN

  16. Training • Claims occur more frequently when there is a lack of training and experience • The agency is responsible for the actions of the volunteers, so they should receive the same level of training an employee would receive • Sexual harassment • Ethics • Defensive Driving • Use of safety equipment • And others dependent on service to be provided

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