April 19, 2023
"Volunteering is the ultimate exercise in democracy. You vote in elections once a year, but when you volunteer, you vote every day about the kind of community you want to live in." - Unknown
Nebraskans regularly vote for the kind of communities they want to live in by volunteering. There are more than 13,300 nonprofit organizations in our state and more than 750,000 Nebraskans volunteer with these organizations annually, contributing over 53.8 million hours of impactful service.
These volunteers carry out a wide variety of roles, from adult mentors and food bank servers to volunteer directors and officers. During this National Volunteer Week, we celebrate their contributions to the Good Life! At the same time, nonprofits should use this week to focus on the potential for liability that can arise with volunteers.
Who is a volunteer? The Nebraska Court of Appeals has said a volunteer is “someone who performs services without expecting to be paid.” (Thomas v. Kearney Little League Baseball Assn., 5 Neb. App. 405, 407 (1997). Federal law defines a volunteer as “an individual performing services for a nonprofit organization or a governmental entity who does not receive (A) compensation (other than reasonable reimbursement or allowance for expenses actually incurred); or (B) any other thing of value in lieu of compensation, in excess of $500 per year, and such term includes a volunteer serving as a director, officer, trustee, or direct service volunteer.” 42 U.S.C. § 14505(6).
That they are not paid, however, does not change the fact that volunteers, like employees, are agents who can create liability for the principal, in this case, the nonprofit they serve with. Their acts and omissions, and the care or negligence they use in carrying out their volunteer duties, can be attributed to the nonprofit they are serving at the time. Despite what many may believe, there is no “charitable immunity” that exempts a nonprofit from liability that may arise from the acts of a volunteer.
To the contrary, volunteers can create liability for a nonprofit when they act with gross negligence or reckless misconduct, when they lack the special qualifications required for the duty, and when the risk from using volunteers for the activity could be reasonably foreseen by the organization. Given the many roles that volunteers undertake for nonprofits – from board members overseeing paid staff to front-line providers directly interacting with recipients of services – nonprofits need to think intentionally about their volunteers.
There are several initial steps a nonprofit should take. First, it should identify the work that can be conducted by volunteers and the work that should only be done by paid staff. Second, it should evaluate its processes for volunteer recruitment, selection, and management. Third, it needs to know which of its programs and operational areas are actively using volunteers.
With these completed, an organization’s leadership can then begin to evaluate its exposure and design process and procedures to protect the people the nonprofit serves, its volunteers, and the organization itself. Ranging from insurance to indemnification, creation and use of policies to background checks for certain volunteer positions, the steps the nonprofit takes in response to its findings will position it to best carry out its mission for years to come. If your organization wants assistance in this process, engage lawyers experienced in the nonprofit sector and employment law to advise you.
We enjoy the Good Life thanks to the volunteer spirit of Nebraskans. By intentionally thinking about their use of volunteers, Nebraska nonprofits will ensure that this spirit continues to create the communities that we all want to live in.
This article is provided for general information purposes only and should not be construed as legal advice. Those requiring legal advice are encouraged to consult with their attorney.
