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Is Your Volunteer An "Employee"?

July 03, 2008 BY John Adkisson

            The question of whether a volunteer is covered under an employer’s workers’ compensation policy seems like an easy question.  Most would think that a volunteer is not an employee and therefore is not covered.  Unfortunately, the answer is not always that simple.  Multiple factors affect whether a volunteer may receive benefits under the Georgia Workers’ Compensation Act (“Act”).  This article examines the factors that determine whether a volunteer is deemed an “employee” for purposes of the Act and the factors that play into the determination of the volunteer’s right to workers’ compensation benefits (both medical and indemnity).

True volunteer or “employee”?

            An “employee” under O.C.G.A. § 34-9-1(2) is “every person in service of another under any contract of hire or apprenticeship, written or implied.”  The code section implies that in order to be considered an “employee” the individual should be paid.  Therefore, if the individual is not paid they are generally not an employee and are not eligible for workers’ compensation benefits.  Instead a non-paid individual would generally be considered a gratuitous worker or volunteer.  There are some special categories like volunteer firefighters, volunteer law enforcement personnel, volunteer emergency response personnel, and volunteer medical first responders which are specifically set forth in O.C.G.A. § 34-9-1(2) as covered individuals despite volunteer status.  In addition, under a special code section enacted prior to the 1996 Atlanta Olympics volunteers that were part of the Olympics were  specifically deemed covered under O.C.G.A. § 34-9-2.4.  Beyond these statutory exceptions, a volunteer may be deemed an “employee” based on employer election or actions.  These exceptions will be explored below.

            An employer has the right to elect to insure classes of workers who would otherwise not be covered by the Act.  An employer may elect to include a partner or sole proprietor (both of whom are generally not covered) under its workers’ compensation policy.  Likewise, an employer can also elect to include volunteers as part of its workers’ compensation policy.  This means the insurer includes the volunteers’ employment numbers in the calculation of policy premiums.  If an employer chooses to insure a volunteer the volunteer becomes an "employee by estoppel.”  Therefore, the volunteer falls within the auspices of the Act and the volunteer is eligible for workers’ compensation benefits.
            A worker may also be covered by the Act even if they are not paid, do not fall into a  special statutory category, nor have an employer that elects to bring the worker within the provisions of the Act.  In Housing Authority, City of Cartersville v. Jackson, 226 Ga. App. 182, 486 S.E.2d 45 (1997),  Jackson, a member of the Cartersville Board of Housing Authority, agreed to be the interim executive director while the Board searched for a new permanent executive director. The job normally paid $49,500 per year, but Jackson told the Board he would work for a salary of zero.  Jackson had a motor vehicle accident while driving an Authority car and performing Authority business.  The accident resulted in medical bills of over $172,000.  Jackson hired an attorney who asserted that Jackson should be considered an "employee" for purposes of the Act.   The City of Cartersville argued that Jackson was a volunteer with no contract of hire as required by O.C.G.A. § 34-9-1(2). The Administrative Law Judge, the Appellate Division of the State Board of Workers’ Compensation, the Superior Court, and the Georgia Court of Appeals all ruled that Jackson was an "employee" for purposes of the Act.  The Court specifically notes that whether an individual is paid is not irrelevant to making the employee decision, but is also not controlling.  The Court based its decision on the fact that: (1) Jackson performed a valuable economic service for the City in performing all the executive director duties and more importantly, (2) that the City had the right to terminate Jackson and to direct the time, manner, method, and means of his job duties.  The element of the City’s right to control was the deciding factor in the Court’s decision. Because Jackson was deemed an “employee” he was covered by the Act and covered under the City’s workers’ compensation policy. Therefore, he was awarded medical benefits.  Note that Jackson apparently did not seek and the Court did not award indemnity benefits.

            Jackson demonstrates Georgia’s use of the common law standard regarding the master’s right to control time, method, manner, and means of executing work.  If a volunteer’s service is not truly “voluntary” they may be considered an “employee” for workers’ compensation purposes.  If the employer does not wish to have volunteers covered under the Act they should be sure that the volunteer has at least some measure of freedom in performing job functions.  There is no clear cut answer as to the amount of control required.  Much like the decisions regarding classification as an independent contractor or employee, the answer will depend on the facts and circumstances of each case. 

Entitlement to Benefits

            If a volunteer is not covered by the Act and the employer’s workers’ compensation policy they are not eligible for workers’ compensation benefits.  Once the volunteer is determined to be a covered “employee,” the question becomes what type of benefits (medical and/or indemnity) the volunteer is entitled to receive.  Barring an unusual fact situation or some type of creative lawyering by the volunteer’s lawyer, the volunteer should be covered for medical benefits, but not indemnity benefits.   

            The volunteer has lost no wages and the lack of wages makes the calculation of an average weekly wage of anything other than zero impossible.  Hence, there is no way to apply the two-thirds formula for the calculation of indemnity benefits.  In addition, an injured volunteer that received indemnity benefits would in essence receive a windfall because zero income would be replaced with some income.   This is the case even if the volunteers are elected to be included in the workers’ compensation policy by the employer or if the courts decide that the volunteer is actually an “employee” due to control exerted by the employer.  There has been no Court of Appeals or Georgia Supreme Court decision of which the writer is aware that has awarded indemnity benefits to a “normal” volunteer.

            The Act does spell out specific calculation of average weekly wage for volunteer firefighters and volunteer law enforcement officers under O.C.G.A. § 34-9-260(5).  According to the code section, the average weekly wage of these employees is the "Georgia average weekly earnings of production workers in manufacturing industries for the immediately preceding calendar year, as published by the Georgia Department of Labor."

            In addition, O.C.G.A. § 34-9-260(6) creates a special way of calculating average weekly wage for members of the Georgia National Guard or State Defense Force that are injured while on active duty.  There is both a percentage to calculate for the active duty pay and a portion to calculate using any other employment that the member may have been working in at the time of his or her active duty.   Therefore, an average weekly wage is statutorily created for these special classes of volunteers, allowing the calculation of an indemnity compensation rate.

Conclusion

            The determination of whether a volunteer is an “employee” and therefore covered by the Act turns on several factors.  First, does the volunteer fit within one of the statutory exceptions or has an election been made by the employer?  Next, how much control does the employer have over the volunteer?  After the “employee” determination is made, remember that generally a volunteer deemed an “employee” will generally receive only medical benefits under the workers’ compensation system.

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

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H. Michael Bagley
(Editor-in-chief)