Legal Considerations for the Use of Volunteers

One of the perks of living in an active community association is getting to know your neighbors.  And what better way to foster a sense of camaraderie than by volunteering alongside others to better your neighborhood.  Volunteer opportunities can come in many forms: from planned day events tidying up the landscaping on the common property to weekly impromptu gatherings picking up trash on the grounds.  While volunteers can be an enormous boon to a community association, it is important that a board ensure that participation and activities are handled in a safe and legal way so that neither association nor owner incur any unwanted liability.

Starting with the Basics:  Volunteer or Employee

When considering the use of volunteers, it is important to understand whether they will be considered employees or volunteers when they work on association tasks.  This might seem like a simple distinction:  employees get hired, paid and fired while volunteers… well… volunteer.  In Georgia, the determination is not quite so simple.  In a 1997 opinion, the Georgia Court of Appeals decided that a man who volunteered his time without pay for the Housing Authority of Cartersville was actually an employee, not a volunteer, because: (1) he performed a valuable economic service to the City, and (2) the City could direct the “time, manner, method, and means” of his job duties.  Housing Authority, City of Cartersville v. Jackson, 226 Ga. App. 182, 486 S.E.2d 45 (1997).  As an employee, the man was entitled to certain protections and coverage under the City’s workers’ compensation policy when he was injured on the job.

The Housing Authority case is an extreme example of a volunteer acting like an employee.  Owners who participate in one-off volunteer events will almost certainly not count as employees.  However, the determination might change if a volunteer performs a more valuable service like regularly mowing the common property or cleaning the entry sign and clubhouse.  The easiest way to avoid having a volunteer labeled as an employee is to ensure that the volunteer is given wide latitude in how they perform the work and that the association does not try to have them take the place of a paid contractor or employee (e.g. we had a landscaper, but to save money the association took Johnny Lawn up on his offer to mow weekly for free).  If an association is unsure whether a particular service or event will result in volunteers becoming employees and, therefore, potentially requiring workers’ compensation insurance, the Board should reach out to its attorney and insurance agent to determine the risks.

Watch out for that Tree!  Volunteers and Injury

An association generally owes its members, owners or occupants a duty of care to avoid injuring them while on association property and to protect them from hidden dangers on the property that the association has knowledge of (or should have knowledge of through reasonable inspection).  This duty can be heightened significantly if an association invites third parties on its property.  The first thing an association should consider when planning a volunteer event is who will be invited:  owners only or “outside” volunteers?  If outside volunteers will be involved, the association must remember that they may be owed a higher duty of care than owner volunteers.

There are several things an association can do to limit its exposure to liability to volunteers who are injured on association property.  The first is to make sure that the property where the volunteer event will be held has been recently inspected to insure that there are no hidden dangers or “mantraps” that might cause injury.  The board should also check the language of the governing documents, which often includes provisions restricting an owner’s right to sue an association for injury while on common property.  Finally, having all volunteers sign a brief indemnification or waiver document providing that they will not sue the association for injuries obtained while volunteering on its behalf will further limit the association’s exposure if someone is injured.  It is also a good idea to check with an association’s liability insurance provider to ensure that the event will be covered under its policy.

When the potential legal issues associated with volunteer use are investigated and accounted for before problems arise, the association will have put itself in the best possible position.  If a board ever has questions about the use of volunteers and potential risk to the association, it should contact its community association attorney to ensure that the association will reap the rewards of volunteer service while avoiding the pitfalls.