The Law of Volunteers and Gratuitous Employees

• Publication year: 2004
• Pages: 115

33 Colo.Law. 11 Colorado Lawyer 2004.

2004, August, Pg. 115. The Law of Volunteers and Gratuitous Employees

Vol. 33, No. 8, Pg. 11

The Colorado Lawyer
August 2004
Vol. 33, No. 8 [Page 115]

Specialty Law Columns
Labor and Employment Review
The Law of Volunteers and Gratuitous Employees
by Bradley S. Abramson

This column is sponsored by the CBA Labor Law Forum Committee to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado

Column Editor

John M. Husband of Holland & Hart LLP in Denver - (303) 295-8228, jhusband@hollandhart.com

About The Author

This month's article was written by Bradley S. Abramson, Denver, an attorney with Thomas N. Scheffel & Associates, P.C. - (303) 759-5937, BAbramson@ tnslaw.com.

This article discusses the legal concept of gratuitous employment and how that concept differs from the concept of volunteer labor. In doing so, it discusses both Colorado and sister state cases. It concludes with a discussion of certain liability issues attendant on the use of unpaid labor, including the applicability of workers' compensation insurance.

Many organizations, particularly nonprofits, use unpaid workers in addition to or in lieu of paid employees. However, few organizations consider the legal consequences of having unpaid workers perform services for them. These consequences include possible liability on the part of the "employer" if the unpaid worker is injured or causes harm to third parties.

This article provides an overview of the law as it applies to unpaid workers in Colorado. It distinguishes between "volunteer" and "gratuitous employee" and discusses how laws apply to these two categories of workers.

Concept of "Volunteer"

A volunteer undertakes to do something he or she is "not legally or morally obligated to do" and not pursuant to or in protection of any of his or her personal interests.1 A volunteer is commonly perceived to be someone who performs a service without any expectation of compensation. Nevertheless, a worker who receives little or no compensation or has no expectation of compensation can still legally be an employee of the person or entity on whose behalf he or she provides services.

In addition to providing services for little or no compensation and without expectation of compensation, a true volunteer usually must perform services that meet two criteria. These are: (1) without having been requested to do so and (2) without being directed or controlled by the person or entity on whose behalf he or she provides services as to how the work is performed.

Concept of "Gratuitous Employment"

It is not a new idea that a person who provides services with little or no compensation or formal hiring may be an employee of the person or entity for whom the unpaid services are rendered. This concept was recognized as early as the 1940s. In the 1945 California case of Edwards v. Hollywood Canteen,2 the court held that a young woman who volunteered as a "junior hostess" to entertain U.S. servicemen in a dance hall was an employee of the dance hall for purposes of injuries she suffered while dancing the "jitterbug" with a marine. The court reasoned that, despite the fact that she received no compensation for her services, she performed the services for the dance hall's benefit and, while performing the services, was subject to the control of the dance hall.3

The Colorado Case

Although never addressed in detail by either the Colorado Court of Appeals or the Colorado Supreme Court, the concept that an unpaid worker may be a "gratuitous employee" has emerged in Colorado. In Cottam v. First Baptist Church of Boulder,4 the U.S. District Court for the District of Colorado, anticipating how the Colorado Supreme Court would rule if called on to do so, recognized that an unpaid worker may be a "gratuitous employee" of the person or entity for whom the unpaid worker is providing labor or services.

The Cottam court specified two criteria for identifying a gratuitous employee. These key elements are: (1) whether the unpaid worker submitted to the direction and control of the person or entity for whom the service was provided; and (2) whether the primary purpose underlying the performance of the service was to serve another.5

In Cottam, the plaintiff chose to vacation at church camp facilities owned by the First Baptist Church of Boulder. When the camp facilities were not being used for official church functions, individuals sometimes rented the site for a nominal fee. The plaintiff and other individuals were vacationing at the camp under such an arrangement.

During his stay at the camp, the...