HR Tip: Make sure volunteer workers Carry Workers' Compensation

The California case of Diane Minish v. Hanuman Fellowship carries a valuable lesson for anyone involved with nonprofit organizations. After Diane Minish, a volunteer worker with the nonprofit Hanuman Fellowship, was accidentally thrown from a forklift; she sued the organization for negligence. Hanuman argued the exclusivity of Workers' Compensation as a remedy, claiming that its Comp policy covered the plaintiff. Although Minish did receive comp benefits, she felt they were too low - and so she sued for more. As in many states, under California law, "private, nonprofit organizations are not required to provide [Workers' Compensation] coverage for volunteers (see §§ 3700 [requiring coverage for employees]; 3352, subd. (i) [volunteers are not employees]), section 3363.6 allows them to do so if they choose." Although the statute is awkward and disjointed, it provides, in essence, that a volunteer becomes a covered employee if the board [of the nonprofit] so declares in writing before any work-related injury.

Minish argued that she had not agreed to this arrangement:
"Plaintiff contends that under section 3363.6, a declaration rendering volunteers covered employees does not become effective unless and until an affected volunteer has notice of the declaration and voluntarily accepts Workers' Compensation coverage before any injury. Thus, because the undisputed evidence establishes that she did not receive such notice and did not voluntarily accept Workers' Compensation coverage before the accident, the Act was inapplicable."

The court disagreed, ruling that "Here, of course, without the slightest advance warning, Hanuman plunged Minish into the toils of the Workers' Compensation system not only without her knowledge, but - as soon as she learned of it - very much against her will. Section 3363.6 does not explicitly require notice to volunteers that they have been deemed volunteer/employees. Nor does the statute provide that such status must be accepted by each volunteer individually... In short, we reject the plaintiff's claim that section 3363.6 imposes a notice and acceptance requirement."

However, the court dismissed the argument that Minish was "estopped" from denying the exclusivity because of the fact that she used the Workers' Comp system. So, although the suit will go back to court, chances are that she will lose in her attempt to claim negligence.

The bottom line: Whether you sit on a non-profit board, run a non-profit, or advise one, do what's required under state law to make sure that your volunteers: a) sign liability waivers and b) get Workers' Comp coverage. Doing so will help avoid an ultra-expensive negligence claim. Also, make sure your insurance coverage addresses such claims where the doctrine of Workers' Comp exclusivity does not apply.

Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.