The 1997 Federal Volunteer Protection Act:
Limited Protection For Volunteers

By Thomas L. Frenn

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Congress recently adopted The Federal Volunteer Protection Act of 1997.¹ This act partially immunizes individual volunteer workers for nonprofit organizations and governmental entities from liability for acts of ordinary negligence (with some exceptions) committed in the course of their volunteer work. It also limits punitive damages and noneconomic damages for volunteers who are in fact held liable for their actions. The Act does not affect the liability of nonprofit organizations or governmental entities to the person making the claim. The Act specifically preempts the laws of individual states, and significantly changes and expands the protections for volunteers under Wisconsin law.

Congress stated that the purpose of the Volunteer Protection Act is to promote the interest of social service programs, beneficiaries, and governmental entities, and to sustain the availability of such programs for the nonprofit organizations and the governmental agencies that depend upon volunteers contributing to society. The Act reforms laws to provide certain protections from liability relating to volunteers serving the nonprofit organizations and governmental entities.

Congress, as part of the actual Act, made the following findings, which summarize the need for the Volunteer Protection Act of 1997: 1) the willingness of volunteers to work for nonprofit organizations is being limited by liability concerns and it has become harder for nonprofit organizations to find volunteers; 2) the contributions of nonprofit organizations in society are being reduced by the loss of volunteers; 3) the nonprofit organizations must provide insurance for their volunteers and the cost of said insurance materially affects the ability of nonprofit organizations to offer their programs.

Organizations the Act covers

Significantly, the Act applies to the other type of organization, which is any not-for-profit organization that is organized and conducted for public benefit primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action that constitutes a hate crime.

Therefore, an unincorporated nonprofit association or a corporation which has not obtained tax exempt status from the IRS, but which meets the public benefit requirement and operates primarily for charitable purposes, is provided protection under this Act. The Judiciary Committee's comments also indicate that the above definitions are intended to include trade and professional associations and other business-league-type organizations that are exempt from taxation under 501(c)(6) of the Internal Revenue Code in 1986. Examples of this type of organization are industry trade groups, neighborhood organizations, service groups that are not incorporated, and groups that meet to raise money for an injured individual. The language of the Act makes it very clear that the intention is to expand, not limit the coverage.³

Definition of a "volunteer"

The Act defines a "volunteer" as an individual performing services for a nonprofit organization or governmental entity who does not receive compensation for his or her services other than reasonable reimbursement for expenses actually incurred, or any other thing of value in lieu of compensation in excess of $500 per year. This includes voluntary service as a director, officer, trustee, or direct service volunteer.

The Act's definition expands the definition of a volunteer set forth in Chapters 181 and 187 of the Wisconsin Statutes.⁴ These Wisconsin Statutes do not provide for the $500 value in lieu of compensation as a maximum safe harbor. If the volunteer receives anything of value, he or she would lose protection as a volunteer under Wisconsin Law.⁵

Exceptions to federal preemption

The Volunteer Protection Act does not preempt four specific types of state law. They are:

1) state law requiring a nonprofit organization or governmental entity to adhere to risk management procedures, including mandatory training of volunteers. This author is not aware of any such requirements in Wisconsin.

2) a state law that makes the organization or agency/entity liable for acts or omissions of its volunteers to the same extent as an employer is liable for the acts or omissions of its employees. Wisconsin does not have any statutory provisions containing this type of limitation. However, the case of Arsand v. City of Franklin⁶ holds that a volunteer, in this case an airplane pilot, could be considered a servant for the purposes of respondeat superior. Although the term "state law" is not defined in the Act, under the holding in Arsand, Wisconsin organizations probably are liable for acts or omissions of their volunteers engaged in particular acts such as flying airplanes or driving cars in the course of volunteering for the organization.

3) a state law that makes the limitation of liability inapplicable if a civil action was brought by an officer of state or local government, pursuant to state or local law. This is similar to Wis. Stat. section 181.297(3)(1) and certain provisions in Chapter 187 of the Wisconsin Statutes.⁷

4) a state law that makes the limitation of liability applicable only if the nonprofit organization or governmental entity provides a financially secure source of recovery for individuals who suffer harm as a result of actions taken by the volunteer on behalf of the association or governmental entity. There appears to be no Wisconsin law that applies to this restriction.

In addition a state may "opt out" of specific provisions of the Act. As of the writing of this article Wisconsin has not chosen to "opt out" of any provisions of the Act.

Scope of immunity

Section 4(a) of the Act provides immunity for volunteers of nonprofit organizations or governmental entities who are acting within the scope of their responsibilities, provided that, if appropriate or required, the volunteers are properly licensed, certified, or authorized by the appropriate authorities of the organization to do the acts and the volunteer work they are doing. Immunity is limited to the volunteers' acts of ordinary negligence and does not include willful or criminal conduct, gross negligence, reckless misconduct, or conscious flagrant indifference to the rights or safety of the individuals harmed by the volunteers.

In addition, the Act does not protect a volunteer from liability where the damage resulted from the volunteer's operation of a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator of the vehicle, craft, or vessel to possess an operator's license or maintain insurance.⁸

The Act's limitation of liability does not extend to the nonprofit organization or governmental entity. The organization or entity may be held vicariously liable for the ordinary negligence of its volunteers, even if its volunteers are immune from liability under the Act. Under Arsand,⁹ if a volunteer is considered to be a servant of the organization, the organization can be held liable for the volunteer's negligence under the principles of respondeat superior. There also are certain situations in which an organization can be held liable for the negligent acts of its volunteers acting as the organization's agent in the course of their volunteer duties.¹⁰ However, nonprofit organizations and governmental entities will continue to benefit from any other liability limitations provided by state and federal law. For example, the organization itself can still sue a volunteer for damages arising from the volunteer's misconduct.

Limitations on the Act's protections

The Act does not operate to protect an individual volunteer whose misconduct:¹¹

1) constitutes "crime" or "violence," as those terms are defined in 19 U.S.C. 16, or "active international terrorism," as defined in Title 18 section 2331, for which the defendant has been convicted in court;

2) constitutes a hate crime, as that term is used in the Hate-Crime Statistics Act, 28 U.S.C. 534;

3) involves a sexual offense as defined in applicable state law for which the defendant has been convicted in court;

4) involves misconduct for which the defendant has been found to have violated a federal or state civil rights law; and

5) where, at the time of the misconduct, the defendant was under the influence of intoxicating alcohol or any drug.

Note that the Act's restrictions differ from current Wisconsin law. Since the federal act specifically preempts state law the federal law will control unless the state law provides more protection than federal law.¹²

Limitations on damages

Under the Act, punitive damages may not be awarded against a volunteer in an action seeking damages resulting from an act by a volunteer who was acting within the scope of his or her volunteer responsibilities, unless the claimant establishes by clear and convincing evidence that the damage was proximately caused by an action of a volunteer that constitutes willful or criminal misconduct or conscious, flagrant indifference to the rights or safety of the individual harmed.

The Act further states that it does not create a cause of action for punitive damages, and it does not preempt or supersede any federal or state law to the extent that such a law would further limit an award of punitive damages. In other words, even if a person would commit criminal misconduct, the claimant would have to establish under a law other than the Act that he or she has a right to punitive damages. The Act severely limits damages against volunteers available under Wisconsin law.¹³

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