LEGAL STATUS OF A VOLUNTEER

This section describes several kinds of legal relationship that a volunteer can have with an organization and explains why the nature of the relationship matters.

A volunteer can be defined as an individual who, with or without special training, provides services or assistance without any payment of fees, wages, or salary, and without any expectation of any kind of compensation. Many nonprofit organizations and charities will have volunteer workers, paid staff, and volunteer directors.

I. THE LEGAL NATURE OF THE RELATIONSHIP

The working relationship between a volunteer and the organization to which time is donated is governed by an agreement, which may be oral or written. The volunteer agrees to provide time, skill, and energy to the organization, and the organization agrees to accept the volunteer on this basis.

This association, known as a gratuitous or consensual relationship, is important in its own context, but it is not binding in law in the way that a contract would be. This has certain implications. For example, the volunteer would not be able to sue the organization on the basis of their agreement if it provided him with only three hours per week instead of four. Similarly, the organization would not be able to sue if the volunteer never appears. This does not mean, however, that a consensual agreement is without value. It is very important because it should set out the terms and scope of the role the volunteer and organization will play. Ideally, when a volunteer is recruited or is being trained, a ‘placement agreement’ will be put in writing and signed by both parties. Such a formal agreement that sets out exactly what the volunteer will do and how he will do it will prevent problems from arising. Should disagreements occur, the agreement may help to provide a resolution. In addition, if a lawsuit for accident or liability is brought against the organization, the agreement may be consulted to determine whether the volunteer was acting within the scope of his agreed-upon duties.

II. CATEGORIZING THE RELATIONSHIP

As pointed out above, the legal issues that may arise for organizations or their volunteers depend on the kind of work the volunteer does and the relationship of the volunteer to the organization. The law recognizes three common categories that describe the relationship of an individual to an organization: employee, agent, and servant. Although these aren’t categories of volunteer, the law may view a volunteer as similar to these categories and so treat the volunteer in a similar way.

A. Employee

Since volunteers receive no compensation and expect no compensation for their work, they are not employees. In rare circumstances, the Workers’ Compensation Act may apply should a person be injured in the course of her duties as a volunteer. In such a case, the compensation she might receive would be based on what she would have been entitled to under the Workers’ Compensation Act had she been an employee. However, in general, organizations should consider having their own insurance to cover injuries to volunteers (see Section 6).

B. Agent

Often, a volunteer may be seen as an ‘agent’ of the organization. For example, suppose the XYZ Society (through a proper resolution by its Board of Directors) decides to buy a building to use as a youth centre. The volunteer President and volunteer Secretary from the Board of Directors negotiate the terms of the purchase with the owner of the building, negotiate the terms of a mortgage with the bank, and sign all the papers. In this situation, they are acting as agents for the XYZ Society and XYZ is considered to be the ‘principle’. In an agency relationship, the principle (XYZ) will be legally responsible for the actions of its agents.

Sometimes a volunteer may appear to the community to represent the organization to which he donates his time. However, unless the volunteer is authorized by the proper procedures of the organization to contract in the name of the organization, it is unlikely that a volunteer will be considered an agent in law. Check out Section 5 Volunteer Board Members for information regarding the proper authorization of Board Members to carry out acts such as signing contracts.

C. Servant

A servant is one who provides service to the organization or its clients. This may be done in a paid or voluntary capacity. The master — in this case, the organization — has an obligation to supervise all of its servants and protect them from unreasonable risk. The master is also liable for the authorized acts of its servants.

III. ‘SPECIAL’ VOLUNTEERS

All kinds of different people, with different gifts and different challenges, work as volunteers. Common sense tells us that an organization should make sure that its volunteers are able to carry out the tasks they are given. The organization also needs to adjust the level of supervision it gives to volunteers depending on the volunteers’ abilities.

There are a few categories of volunteers who require special consideration: e.g., developmentally challenged volunteers, offenders who volunteer, youth volunteers, clients who volunteer, and immigrants or refugees who volunteer.

A. Children under 18

Signed consent from a parent or guardian should accompany a volunteer who is under the age of 18. The parent should be completely aware of the nature of the organization and the duties expected of the child. This is another situation where a written agreement is useful, setting out the responsibilities of the child. If the child does not live with both parents, then the consent of the custodial parent or guardian should be satisfactory.

B. Offenders

Organizations approached by an offender who wants to volunteer as part of his or her sentence should take the following steps:

• Speak to the probation officer or person in charge;
• Be aware of the nature of the offence;
• Consider the suitability of the volunteer;
• Make a written agreement, and
• Conduct a regular follow-up.

The organization should also ensure that the volunteer is not prohibited from volunteering with an organization pursuant to a court order. In the case of court mandated community service, if a court directs the person to volunteer in a specific position, the organization cannot impede that direction or they may be found in contempt of court. However, generally there will be a Supervisor or Parole Officer that will be involved in the arrangement of appropriate community service. For example, a court may prohibit a sexual offender from volunteering for XYZ Society because the open volunteer position may rely on the trust or authority towards a person under the age of ten years. At the very least, any organization that has involvement with children should ask a prospective volunteer whether he or she has a court order that prevents him or her from working in a position of trust or authority towards a child.

The organization’s first responsibility is to its clients, and it must ensure that they are protected from possible harm. This requires that the organization have the knowledge and ability to assess whether the offender, youthful or not, is a suitable volunteer for the organization and for the position in question.

C. Volunteers with Disabilities

As in any volunteer placement, it is important that the abilities of the volunteer match the tasks required in the volunteer position. There does not appear to be anything in the law that would prevent someone with a disability to volunteer. On the other hand, there is nothing in law that requires an organization to accommodate a volunteer with a disability. Procedures for including someone with a disability will vary depending on the needs of the organization and the abilities of the volunteer.

D. The Client as a Volunteer

Clients of organizations often become involved also as volunteers; in fact, it is often helpful for an organization to have clients as volunteers because of their personal experiences with the organization. Many organizations make a point, for example, of having clients as volunteers on the Board of Directors. When the client acts as a volunteer, it is important that the volunteer role is described clearly so that everybody can understand when he is a client and when he is a volunteer. Particular care would need to be taken in preserving client confidentiality (see Section 7).

E. Immigrants, temporary resident visa holders and refugees

Permanent Residents

Permanent residents (formerly known as landed immigrants) can work and volunteer in any type of situation as would Canadian citizens.

Temporary Visa Holders

Persons who are in Canada for a temporary peiod of time (foreign students, visitors, temporary foreign workers and refugees claimants)can volunteer as long as they are not doing an activity for which one would normally be paid. Examples include sitting on a board of directors, being a big brother or big sister or being on the telephone line at a crisis call centre. This activity would be part time and secondary to the main reason that a person is in Canada.

Refugees

A refugee resides here legally until his/her claim for refugee status is a) approved (in which case he/her can continue to live in Canada or b) denied (in which case the individual would have to leave the country). During this time while waiting for approval, the individual can certainly volunteer.

If you are unsure whether the position is a volunteer position or would normally be a paid position,  you may want to contact Human Resources and Skills Development Canada and/or Citizenship and Immigration to inquire further.

Screening Immigrant Volunteers

Most temporary resident visa holders and all permanent residents have been screened by Citizenship and Immigration Canada and CSIS (Canadian Security Intelligence Service) to ensure that they do not pose a security risk to Canada.

If a check is completed and their background involves criminal convictions they will be refused admission into Canada. When an individual applies to enter Canada they must provide police certificates from all the countries where they had lived for six consecutive months or more since they were over the age of 18.

Screening temporary visa holder volunteers may be different from screening a Canadian or a permanent resident. References provided by temporary visa holders may be difficult to obtain, and contacting them maybe be a challenge if they are from another country. Your organization may wish to utilize other screening methods, such as conducting an interview or contacting contacts that the volunteer has made while in Canada.

For more information on the volunteer screening process, visit http://www.volunteeralberta.ab.ca/screening.