Vol. 71, No. 12,
December 1998
The 1997 Federal Volunteer Protection Act:
Limited Protection For Volunteers
By Thomas L. Frenn
Editor's Note: To view Wisconsin statutory materials
referenced in this article you must have and/or install Adobe
Acrobat Reader 3.0 on your computer.
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
The 1997 Federal Volunteer Protection Act takes great strides forward
in protecting volunteers of nonprofit organizations and governmental entities
from liability. |
The Act protects two different types of organizations. One is the nonprofit
organization described in 501(c)(3)
of the Internal
Revenue Code of 1986, which is exempt from taxation and does not practice
any action that constitutes a hate crime.2
This type of organization includes most nonstock corporations that have
a tax exempt status under 501(c)(3) IRC, such as nonprofit hospitals, nonprofit
nursing homes, and various charities formally organized as a nonprofit nonstock
corporation.
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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