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State Volunteer Program

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• INTRODUCTION

There are many persons who volunteer their time and services in support of the CSU mission. How they are treated under the law, when they are injured, or they cause injury to others, raises a complicated set of questions. The rules which govern the university's responsibility to its employees are reasonably clear. The core question for volunteers is when they will be regarded in the law as university employees, and when not.

At the outset, it should be noted that the legal definition of "employee" is not the same for all purposes. In other words, an employee for purposes of defense and indemnification may not be an employee for purposes of workers' compensation law. This makes even more complex the determination of how university volunteers are to be treated.

It is also necessary to recognize that the body of case law interpreting the treatment of volunteers in various settings is scant. As a result, there are not always clear answers to all of the questions.

The effort here is to present the fundamental concepts. To the extent that a campus has specific questions that arise in a particular set of circumstances, they should be discussed with University Counsel assigned to the campus.

• THE STATE GOVERNMENT VOLUNTEERS ACT

Government Code Sections 3110, et seq., entitled the "California State Government Volunteers Act," sets out some general parameters which define the state's relationship to those who volunteer on its behalf. The Act first defines a volunteer as:

"Any person who, of his own free will, provides goods or services, without any financial gain, to any state agency." Cal. Gov. Code § 3111(a).

It then requires that volunteers comply with the rules and regulations applicable to the public agency for which they volunteer and places responsibility on the agency to ensure that they do so:

"All volunteers shall comply with applicable department and other state policy and regulations. It shall be the responsibility of the state department in which a volunteer participates to insure this compliance." Cal. Gov. Code § 3118.

The responsibility of the public agencies to ensure the appropriate behavior and conduct of their volunteers is underscored by the following section:

"Each state department or division utilizing the services of volunteers shall:

(a) Provide sufficient staff for the effective management and development of volunteer
programs.

(b) Develop written rules governing job descriptions, recruitments,
screening, training, responsibility, utilization, supervision, and insurance of volunteers.

(c) Take such actions as are necessary to insure that volunteers understand their duties
and responsibilities." cal. Govt. Code § 3119.

• WHEN VOLUNTEERS ARE INJURED

The key question when volunteers become injured while performing service for the university is whether they will be covered by the workers' compensation laws, which provide medical coverage for the injury and limit the amount of recovery that is available for personal injuries. The balance struck and to benefit the employer by limiting the amount of recovery available to a much greater extent than it would be available under the tort system of recovery.

The definition of who is an "employee" under the workers' compensation law is very broad. It includes every person in the service of an employer under any appointment or contract of hire, express or implied, oral or written, whether lawfully or unlawfully employed, Labor Code § 3351, (the definition specifically includes minors.) This section is immediately followed by another, which specifically excludes from the definition of "employee" the following:

"Any person performing voluntary service for a public agency or a private, nonprofit organization who receives no remuneration for the services other than meals, transportation, or reimbursement for incidental expenses." Labor Code § 3352(i).

Labor Code section 3363.5, however, allows the governing board of any public agency to adopt a resolution declaring its volunteers to be employees for purposes of workers' compensation coverage, in which case the above exclusion does not apply. In November 2000, the CSU Board of Trustees adopted a resolution that CSU volunteers, while performing services for the CSU, are employees for purposes of workers' compensation coverage. This resolution does not cover volunteers of auxiliary corporations. The boards of CSU auxiliaries are free to adopt their own resolutions which will result in workers' compensation coverage for their volunteers. When CSU volunteers are injured in university service, they are therefore covered under the workers' compensation laws.

• WHEN A VOLUNTEER INJURES ANOTHER

The law requires a public agency to be responsible to others for the injuries caused by its employees. Again, the key question for volunteers is whether they will be treated as employees and therefore qualify for the same protection.

Government Code section 810.2 defines an employee for purposes of claims and actions to include:

". . . [an] employee, or servant, whether or not compensated . . ."

Thus, while there is little case law on the subject, volunteers should qualify, like employees, for a defense and indemnification for any injuries they may cause to others during the course of the services they perform.

In Munoz v. City of Palmdale, 75 Cal.App.4th 367, 89 Cal.Rptr.2d 229 (1999), however, The court reasoned that an unpaid volunteer, who spilled hot coffee on another visitor to the center, was neither an employee nor a servant of the municipality as those terms are used in the Government Code. Since the claim involved the liability of the municipality only, and not the volunteer personally, the case did not squarely hold that the volunteer would not be protected under Government Code section 810.2. Its logic, However, suggests this conclusion.

Notwithstanding Munoz, it is unlikely that any public agency would allow its volunteers to suffer personal liability for injuries caused during the good works of volunteers on behalf of the agency. Therefore, whether required as a matter of law or not, it would be most likely to expect that most public agencies will protect their volunteers from any personal liability caused by their injury of others, although the decision may relate to the specific factual circumstances.

• VOLUNTEERS PARTICIPATING IN ACADEMIC PROGRAMS

Some persons regarded as "volunteers" are performing service as a required part of an academic program - e.g., student teachers or interns or service-learners. Although they come to be volunteers from their academic program rather than members of the public who donate services without receiving anything in return, students performing services without compensation are considered to be volunteers.

CSU student volunteers who provide services in connection with a required academic program have the same protections as other CSU volunteers. They are covered by workers' compensation, and they are entitled to defense and indemnification when they are sued. Campuses should develop agreements and relationships with the community organizations and other entities where students perform the service-learning component of their academic requirements. Normally, workers' compensation coverage and responsibility for defense and indemnification should be borne by the community agencies, since they control the work conditions and receive the benefit of the students' work.

• SUMMARY

1. The CSU is responsible to ensure that its volunteers comply with appropriate rules
and regulations.

2. CSU volunteers come under workers' compensation coverage as a result of the
November 2000 resolution by the Board of Trustees.

3. The CSU would most likely decide to defend and indemnify volunteers for injuries
they cause to others, whether the indemnification is required by law or not.

    4. Volunteers who provide service as a required part of an academic program are
        treated differently than true volunteers. They are entitled to workers' compensation
        coverage, whether they are paid or not. Responsibility for that coverage whether by
        the CSU or the agency for which they provide the service, should be thought out
        and negotiated in advance.

These rules are complex. Individual situations should be discussed with University Counsel.

Please contact the Risk Manager at (818-677-2079) for additional information.