In general, California’s Workers’ Compensation Act excludes benefits to “volunteers” who are injured while rendering services to a business, on the grounds that they are not “employees.” Having written that, and even though the parties may have agreed beforehand that a worker is a volunteer, the situation often changes once an accident occurs and the volunteer seeks medical and indemnity benefits. Such disputes typically result in litigation at the Appeals Board, wherein the Court is guided by the following statutes:
- LC §3352(a)(2) – A person performing services in return for aid or sustenance only, received from any religious, charitable, or relief organization.
- LC §3352(a)(9) – A person performing voluntary service for a public agency or a private, nonprofit organization who does not receive remuneration for the services, other than meals, transportation, lodging, or reimbursement for incidental expenses.
In addition to the above, several other occupations are excluded from compensability under workers’ comp. For a complete list please see LC §3352.
Interestingly, there are four occupations where the word “volunteer” is contained in the job title yet, such workers are eligible for industrial benefits:
- LC §3361 – Volunteer firefighter
- LC §3362 – Volunteer police officer
- LC §3361.5 – Recreation and park districts volunteers
- LC §3364.5 – School district volunteers
For the most part volunteers are not paid wages. However, just because wages are not paid does not necessarily mean the worker is a volunteer. Compensation comes in many forms and need not be in cash. Other types of legal consideration are relevant to the determination:
- earning student credit,
- barter or payment by property of value, including payment to others,
- accomplishing internship requirements for a professional license, and
- performing community service in compliance with a criminal sentence.
Such individuals performing these duties certainly are not volunteers in the true sense of the word.
Often employers will opt to provide coverage for volunteers under their workers’ compensation insurance policy. When coverage is afforded, some employers instruct their claims administrator to limit benefits to providing medical care only; however, this is not allowed. When someone is subject to the Workers’ Compensation Act, they are entitled to all benefits afforded under the Act, not a select few. But there is a silver lining! If a volunteer is covered under workers’ compensation the exclusive remedy for their injury is at the Appeals Board and not in civil court, which may work to the employer’s benefit as it keeps the company out of civil litigation and limits the recovery for pain and suffering damages and more.
Providing work comp insurance coverage to volunteers sometimes causes havoc with insurance companies because premium calculations are partially based on wages. Yet, volunteers have no earnings. As the insurance company is not about to provide free coverage, a formula has been developed to calculate premiums for volunteers. The insurer takes the number of hours each volunteer worked during the policy period, multiplies those hours by the minimum hourly wage applicable by law for that location, reaching a “hypothetical wage” for the volunteer.
You have probably noticed that the interaction of volunteering with workers’ compensation law can at times get tricky, especially following an injury when the injured party attempts to change their status from a volunteer to an employee. Feel free to contact the experts at Friedman and Bartoumian for guidance and assistance on this issue.