Volunteer vs. Employee Legal Protections in California

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 Are Volunteers Protected Under California Employment Laws?

Under volunteer labor laws in California, a volunteer is defined as an individual who performs work for charitable, humanitarian, or civic reasons for a public agency or non-profit organization without the promise, expectation, or receipt of any type of compensation for their work.

If an individual does not offer their services for free or is coerced, they will not be considered a volunteer under the law. A volunteer may be provided meals, transportation, lodging, incidental expenses, and non-monetary awards if necessary in order to perform the work, and they will still be considered a volunteer.

In general, this applies so long as none of the items listed above are intended as a replacement form of compensation. Under the California Volunteer Protection Act, volunteers are protected from liability for harm that is caused while they are properly engaged in their voluntary work.

The Act does not protect a volunteer who caused harm by malicious, willful, or criminal conduct or intent. Although a volunteer does not receive as many benefits and rights as paid employees do, the California Fair Employment and Housing Act (FEHA) does extend them a few significant protections.

This includes the right to be free from retaliation, discrimination, and harassment in the workplace. There are also some situations in which volunteers will enjoy immunity from personal injury lawsuits.

For example, if an individual is an architect, engineer, non-profit director or officer, or emergency rescue personnel, they may be immune from such lawsuits. Not all categories of these circumstances or roles, however, will provide immunity.

An individual might be a California resident and would like to learn more about their legal protections as a volunteer. In this case, they can consult with a local California employment attorney for further information. An attorney in California will also be able to answer any questions or concerns an individual may have about being or becoming a volunteer in California.

Distinguishing Between Employee and Volunteer

Under California labor laws, an employee is generally defined as an individual who is under the direction and control of an employer either through appointment or by an oral or written contract. The primary differences between volunteers and employees include:

  • There are more regulations as well as better protections provided for employees than for volunteers;
  • Employees are workers who are paid, whereas volunteers usually perform tasks for free;
  • Employees who are wrongfully terminated may recover damages along with certain other remedies, while a volunteer usually cannot;
  • Employees can receive benefits, such as minimum wage, overtime, and paid sick leave, and vacation days, but volunteers typically do not;
  • Employees tend to have weightier responsibilities and may need to sign confidentiality agreements, but volunteers are typically given simpler tasks and do not have to sign a confidentiality agreement to perform volunteer work;
  • If an employer has five or more employees, they must provide sexual harassment and abusive conduct training under California law;
    • However, this same rule does not mandatorily apply to an organization’s volunteers, meaning volunteers are exempt from this requirement;
  • The majority of employees are required to stick to a strict work schedule, while volunteers can offer their time whenever they want; and
  • Employees are generally permitted to work for any type of business or organization, but volunteers can only work for public and nonprofit companies;
    • If a volunteer is hired by a private, for-profit organization, then they will no longer be considered a true volunteer.

Is Volunteering Considered Employment?

California’s Division of Labor Standards Enforcement (DLSE) provides that a volunteer is generally an individual who performs work for public service, humanitarian, or religious reasons without the expectation, promise, or receipt of compensation for their work. By definition, volunteering is unpaid work.

Can Minors Volunteer?

Whether or not a minor can volunteer will depend on the age of the minor as well as the rules provided by the business or organization. During the school year, volunteer hours may be limited.

How Many Hours Can a Volunteer Work per Day?

How many hours a volunteer can work per day will depend on the volunteer’s age and school restrictions. If the volunteer is an adult, they can work as many hours as they are able or in accordance with the rules of the organization.

Are Volunteers Covered Under Workers’ Compensation?

It may be possible for a volunteer to claim California workers’ compensation in certain situations. Workers’ compensation benefits are a type of insurance policy that provides wages as well as medical benefits to employees if an employee is injured.

In exchange for receiving workers’ compensation benefits, the employee gives up their right to sue their employer for injuries that occurred in the workplace. A California organization may adopt a workers’ compensation policy that applies to volunteers or label their volunteers as employees for the purpose of allowing them to receive workers’ compensation benefits.

An organization or business that adopts these types of policies for its volunteers has to provide the same types of benefits to the volunteers as it does to paid employees. These benefits will be fixed, which means that volunteers who receive these benefits will be limited to disability, medical, and injury-specific rehabilitative costs.

In contrast, if a volunteer is not able to claim workers’ compensation benefits, they may seek legal remedies through the California civil court system, including compensation for pain and suffering, in addition to other damages.

The plaintiff volunteer will only receive civil remedies if they are able to show that the other party was at fault. If the case is successful, civil remedies will usually provide more in damages than the plaintiff would receive under workers’ compensation benefits.

What Are Some Common Legal Issues Volunteer Workers May Face?

California laws extend certain legal protections to volunteers. The first set of rights volunteers in the state received was to be free from harassment by their employer, including sexual harassment and hostile acts, such as bullying.

Initially, volunteers were originally provided the right to be free from age discrimination. The FEHA gradually adopted the section on employment discrimination rules for employees and extended that coverage to volunteers.
This means that California employers may not discriminate against volunteers because of their sex, religion, disability, or race.

Are Volunteers Entitled to Damages in a Lawsuit?

Volunteers may be entitled to certain legal remedies and damages awards if they bring a successful civil lawsuit, including:

  • Economic damages, which may include:
    • Monetary awards for medical expenses;
    • Hospital bills;
    • Pharmacy costs;
    • Future loss of earnings;
    • Other out-of-pocket expenses;
  • Noneconomic damages, which may include:
    • Pain and suffering;
    • Loss of consortium;
    • Loss of enjoyment of life;
    • Emotional distress;
    • Other issues; and
  • Punitive damages.

It is important for an individual to check an organization’s volunteer policies. As previously noted, some organizations or businesses will extend workers’ compensation benefits to volunteers.

Why Seek an Attorney’s Advice?

If you have any questions or concerns related to your status as a volunteer versus an employee in California, it is important to consult with a California discrimination lawyer. In some situations, it can be difficult to distinguish between the two.

Making the determination will require a close reading of the law and being able to apply it to the facts of your case. If you are currently a California volunteer and you believe that you were wronged in some way, your lawyer can provide further legal advice regarding possible remedies.

Your lawyer can assess the details of your case, discuss your options for legal recourse, and explain what rights you have as a volunteer in California. Your lawyer can assist you with preparing and filing your claim, represent you in court, and assist you with obtaining the best possible outcome based on the facts of your case.


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