When Volunteers Expect Wages: Legal Considerations for Nonprofits

The Voris v. Lampert Decision: Key Takeaways

California courts have wrestled with what is a volunteer, and when does that relationship change such that the volunteer is owed a wage. In the Voris v. Lampert decision the court lays out the law governing the business and volunteer relationship. The Voris Court states:

The employment relationship … is “fundamentally contractual,” meaning it is governed in the first instance by the mutual promises made between employer and employee. The promise to pay money in return for services rendered lies at the heart of this relationship. Historically, when that promise has been broken, the “usual remedy” has been an action for breach of contract. Even in the absence of an explicit promise for payment, the law will imply one, and thus authorize recovery, when circumstances indicate that the parties understood the employee was not volunteering his or her services free of charge. (internal citations omitted).

Therefore, absent an agreement, a business or nonprofit is generally not liable for wages to a volunteer. However, if the relationship changes such that the volunteer has reason to believe that they would be compensated for their services, liability for unpaid wages can be implied under a theory of unjust enrichment.

Importance of Written Agreements and Waivers

For a business or nonprofit to protect themselves against potentially being liable to a volunteer for wages, it is advisable to obtain in writing a release and waiver of liability. The release should include the waiver and release to hold the organization harmless for their volunteer service. The waiver should also include clauses dealing with issues such as what is agreed upon in case the volunteer is injured in the course of their activity and whether or not they have medical insurance. It is also advisable to have an assumption of risk clause stating that the volunteer assumes the risk of any injury that could result from the volunteered activity. Other clauses may also be advisable depending upon the circumstances of the activity to be undertaken. Further, it is also advisable to develop a separate written description of the services to be provided by the volunteer and explicitly state what the scope of the volunteer’s service is limited to.  The combination of these two documents should sufficiently help to avoid any potential claim of a volunteer being owed an hourly wage.