Title:Understanding the Volunteer Protection Act - Created: 24 January 2008

Understanding the Volunteer Protection Act

This article from the Nonprofit Risk Management Center discusses the Volunteer Protect Act, which was signed into law in 1997. Before the last decade, lawsuits against volunteers - although permitted by law - were extremely rare. Beginning in the mid-1980s, suits against volunteers grew in number and attracted the attention of national media. At about the same time, the insurance picture for volunteers and nonprofit organizations darkened. Premiums rose dramatically, coverage exclusions increased, and several types of coverage became unavailable. Due to substantially higher insurance premiums, some nonprofit organizations cut back on services. Other agencies eliminated insurance coverage - increasing the chance that an injured party would sue volunteers in search of a "deep pocket." As publicity about the lawsuits and insurance crunch spread, it raised volunteers apprehension and reduced their willingness to serve. Several surveys conducted during this period reported that many organizations suffered board resignations and volunteer recruitment difficulties. Several federal legislators began proposing ways to remove the liability chill from volunteering. On the national level, Congressman John Porter (R-IL) dramatized the problem by assigning bill number 911 to his proposed Volunteer Protection Act. Congressman Porter designed the federal bill to spur state adoption of volunteer protection laws. In 1990, President Bush released a model act and called for state-by-state adoption. In response to these forces, state legislatures began taking action. Although every state now has a law pertaining specifically to the legal liability of volunteers, the statutes lack uniformity and consistency. In adopting these laws, state legislatures tried to balance the choice of protecting a volunteer from personal liability with assuring compensation to the innocent victim of the volunteers negligence. Only about half the states protect any volunteers other than directors and officers. Moreover, every volunteer protection statute has exceptions. The most common exclusions are those for certain types of conduct, the use of motor vehicles, and federal actions. Most of the laws permit claims based on a volunteers willful or wanton misconduct. Several laws also exclude gross negligence or another category of error above negligence. A few laws even permit suits based on negligence, which nullifies the protection they purport to offer. In addition to the conduct exceptions, current state laws permit actions based on federal law. The Supremacy Clause of the United States Constitution prevents states from cutting off federal claims. Thus, the Internal Revenue Service can sue a volunteer director for failure to comply with tax withholding rules, and wronged employees can sue for civil rights or employment violations. The final version of the Volunteer Protection Act (VPA)- Public Law 105-19 - signed into law by President Clinton on June 18, 1997, preempts state laws "to the extent that such laws are inconsistent with the Act." However, it does not preempt a state law that provides additional protection from liability for volunteers. The state law preemption also does not apply with respect to any of the following provisions that may be incorporated in existing state laws: (a) the requirement that a nonprofit adhere to risk management procedures; (b) laws that make a nonprofit liable for the acts or omissions of its volunteers to the same extent that an employer is liable for the acts or omissions of its employees; (c) provisions that render the immunity inapplicable if an officer of a state or local government brought the civil action; and (d) provisions that limit the applicability of immunity to nonprofits that provide a "financially secure source of recovery," Page 1 of 3 - Print date: 18 July 2011

Title:Understanding the Volunteer Protection Act - Created: 24 January 2008

such as insurance. In addition, the new federal laws protections do not apply to civil actions in which all parties are citizens of the state where the state has enacted a statute declaring that the VPA does not apply. Simply stated, Public Law 105-19 provides immunity for volunteers serving nonprofit organizations or governmental entities for harm caused by their acts or omissions if: * The volunteer was acting within the scope of his or her responsibilities. * If appropriate or required, the volunteer was properly licensed, certified or authorized to act. * The harm was not caused by willful, criminal or reckless misconduct or gross negligence. * The harm was not caused by the volunteer operating a motor vehicle, vessel, or aircraft. Nevertheless, despite the VPA, many volunteers remain fully liable for any harm they cause, and all volunteers remain liable for some actions. The Act only applies to 501(c)(3) organizations and governmental entities. In addition, the VPA does not prevent a nonprofit from bringing an action against a volunteer. Other exceptions to the liability limitation include misconduct that is a crime of violence, hate crime, sexual offense, violation of federal or state civil rights law, and acts committed under the influence of alcohol or drugs. Does the Volunteer Protection Act protect nonprofits in addition to volunteers? The VPA does not affect the liability of nonprofits and governmental entities with respect to harm caused by volunteer actions. According to Congressman Porter, the intent of the Volunteer Protection Act, first introduced in 1986, was to "shield volunteers from being sued except in cases of willful or wanton misconduct." In the Republican Weekly Radio Address delivered on April 19, 1997, Porter explained that "The idea here is that if litigation must arise from volunteer activity, the nonprofit organization itself should be named, not individual volunteers." What are the benefits of federal volunteer protection? Legislative sponsors and nonprofit proponents of federal volunteer protection have argued that the fear of liability has had a negative effect on volunteerism in America. Advocates of the new law have argued that the new law will enhance volunteerism by: Encouraging a comprehensive and consistent approach to volunteer immunity so that volunteers serving in different states will be treated similarly. The new law will fill the gaps created by the divergent and wide-ranging differences in current state volunteer immunity laws. Reducing prospective volunteers fear of liability. This enhancement is required for nonprofit organizations to meet the increasing demand for volunteer services demanded by growing gaps in government and private-sector programs. By reducing the threat of frivolous lawsuits against good-hearted, well-intentioned volunteers, the new law will increase volunteerism and much needed community involvement. Are there any potential negative consequences of federal volunteer protection? The new Volunteer Protection Act has several potentially negative consequences: * Volunteers and nonprofit organizations often serve highly vulnerable populations that are unable to select their volunteer caregivers. Without the fear of being held liable except for wanton or criminal acts, Page 2 of 3 - Print date: 18 July 2011

Title:Understanding the Volunteer Protection Act - Created: 24 January 2008

volunteers may act inappropriately. Volunteers may be more likely to take unacceptable risks or accept assignments and responsibilities for which no one has trained them. In addition, volunteers may not take their responsibility of extraordinary care for vulnerable populations seriously and over time feel less accountable for their actions. * The growing emphasis on risk management may diminish. Risk management provides a means of protecting clients from harm, safely administering volunteer programs, and preventing injuries. In many respects, the fear of liability has been an effective motivator for staff and volunteers to seek training and support in designing risk management programs. * The current tort system provides incentives for volunteers (and others) to exercise due and reasonable care. Most Americans expect the people to whom they have entrusted the care of their children, elderly parents, and others to follow the reasonable person standard. An unfortunate consequence of the states volunteer immunity laws has been the creation of a false impression that volunteers are immune from lawsuits. The new Volunteer Protection Act will further fuel existing misconceptions about immunity and cause some to ignore the continuing possibility of suits against nonprofits and their volunteers. The truth is that many volunteers remain fully liable for any harm they cause, and all volunteers remain liable for some actions. In addition, only a small percentage of the nations 1.4 million nonprofits purchase liability insurance. Those who believe they are immune will not be adequately prepared to deal with the consequences (including the financial burden) of lawsuits when they occur. While suits against nonprofits and nonprofit volunteers remain relatively rare, when they are filed, the impact on small to mid-sized agencies can be devastating, since most are ill-equipped to manage and finance a defense. Copyright 1999. Nonprofit Risk Management Center. For more information about the programs, services, and publications of the Nonprofit Risk Management Center, visit our web site at www.nonprofitrisk.org or contact us at (202) 785-3891 or via e-mail at info@nonprofitrisk.org.

Page 3 of 3 - Print date: 18 July 2011