What is a Volunteer Agreement?
A volunteer agreement is, quite simply, an agreement between an organization that has volunteers and the volunteer. The purpose of an agreement is really a two-way street. By outlining the rights and liabilities of both parties when things go according to plan, it ensures that both the organization and the volunteer clearly understand how things will work out, good, bad, and otherwise. In addition to this protection, an agreement may be used to establish the level of expertise held by the volunteer . It can also be used to confirm that the volunteer is not an employee of the organization, expressly debunking any such possibility. We’ll expand on this a bit later in this article. The kind of information contained in a volunteer agreement will obviously be similar in content to the articles of incorporation and bylaws of a corporation or perhaps the partnership agreement of a partnership. All of these agreements help define the relationships between the parties involved, the rights and liabilities of each, and a bit of a road map when the relationship goes south. A volunteer agreement can cover such topics as:
Essential Elements of a Volunteer Agreement
While state volunteer protection legislation and federal law provide varying degrees of protection for organizations that utilize volunteers, those laws do not address many important issues. For instance, do your volunteers understand their role within your organization? Do they know what is expected of them and what they can expect from you? Do your volunteers have any say about whether they are assigned a particular task? If the answer to these questions is no, you may want to consider adopting a volunteer agreement. Volunteer agreements can encourage volunteers to think carefully about the commitment they are making to your organization, help make your policies and procedures clear to your volunteers, and minimize conflict down the road.
Unlike employment contracts, volunteer agreements do not have to be written. However, a written agreement signed by both the volunteer and an agent of the organization can help reduce any potential misunderstanding on the part of either party. The agreement should clearly and specifically describe the role of the volunteer, along with the responsibilities and scope of authority. While the agreement should include any time commitments (for example, if the organization is serving food to the homeless on Wednesdays and the volunteer wants to know if that means it’s from 2-4 p.m., 4-6 or some other time altogether), the agreement should make clear that the time commitment is voluntary. The agreement should also include information on how either party can terminate the relationship. Can the volunteer walk away at any time? And if so, will the organization require the volunteer to give advance notice? Similarly, does the organization have the right to terminate the relationship without advance notice?
Legal Considerations and Protections
A volunteer agreement, while mostly a moral and ethical commitment between the organization and the volunteer, does have some legal implications and promises that both parties must consider. A written agreement concerning the important areas of insurance, confidentiality and other sensitivity matters, accident and injury liability, and volunteer rights and protections under the law, will go far in ensuring that the organization and the volunteer understand their respective responsibilities and obligations.
Such an agreement may help clarify what protections an organization may have pursuant to an insurance policy in case volunteer is injured while working or is being held liable for damages arising out of acts on behalf of the organization.
If a volunteer agrees to maintain confidentiality over specific matters, it’s good practice to have such an agreement in writing.
There are also various statutory and common law protections to consider when dealing with and entering into an agreement with volunteers. For example, there may be some statutory limitations on how far an organization can go in making a volunteer promise not to sue in case he or she is injured while volunteering their time. Also, while it is generally acceptable and common for an organization to seek indemnification from volunteers who cause damages to the organization itself, much more debate exists regarding whether it is acceptable and in compliance with the law for an organization to seek indemnification for personal injuries to third parties. Moreover, there may be some common law limitations that an agreement seeking to limit a volunteer’s liability under tort law will not be enforceable, as opposed to general contract law.
Finally, while some laws may provide some level of protection to unpaid volunteers (such as prohibiting employment claims under certain federal and state employment laws), there are certainly some limits to those protections and remedies available to volunteers who are injured.
Drafting a Strong Volunteer Agreement
Volunteer agreements should be kept clear and concise. A poorly written agreement could result in confusion regarding the respective obligations of the parties, which may bring about discontent. In our experience it is best to try to keep the agreement down to a single page or two. Four simple questions serve to capture the essentials:
(i) What type of services will the volunteer be engaged to provide?
(ii) Does the organisation have an operating name that the volunteer is prepared to utilise whilst delivering those services?
(iii) What are the arrangements for reimbursement of expenses (if applicable), such as public transport or parking costs while providing the services?
(iv) How many hours per week will the volunteer be required to perform the services?
Although these questions provide a basic framework for a volunteer agreement, each organisation will have its own operational requirements. For example, organisations may wish to have a volunteer agree to observe confidentiality , comply with their internal grievance processes or agree to perform only the services as directed by the organisation.
It is important to seek legal advice before entering into a volunteer agreement, particularly if the agreement contains clauses dealing with confidentiality, intellectual property or restraint of trade. It is also essential if the agreement has the potential to affect the employee’s terms of employment or an employee’s entitlement to make a claim for unfair dismissal.
The law does not require organisations delivering services on a volunteer basis, either in the for profit or not-for-profit sector, to have a formal written agreement in place. An organisation will legally be bound by a written agreement if both parties have signed it. However, even if the organisation does not insist on having a formal written agreement in place, both parties should have a clear understanding as to the volunteer’s endeavours and the parameters of that engagement.
Also, it is important to note that obligations under a volunteer agreement are not enforceable until both parties have signed the agreement.
Advantages of a Volunteer Agreement
For both the organisation and your volunteer, the benefits of a volunteer agreement are significant:
Clarity: Drafting a volunteer agreement provides an opportunity to ensure both the volunteer and the organisation have a clear understanding of the aim and purpose of the role. The volunteer will be more motivated and therefore more productive if they are aware of the specifics of their role.
Protection: A volunteer agreement is a tool to protect both the volunteer and the organisation. If a volunteer fails to undertake the required tasks or behaves inappropriately, the agreement gives the organisation a basis on which to terminate the volunteer’s engagement. Conversely, if the organisation fails to meet its obligations to the volunteer, the volunteer can use the agreement to enforce those obligations.
Enhanced commitment and engagement: A volunteer agreement provides commitment from both the organisation and the volunteer, as it is a ‘formal’ document. Preparing a written agreement will ensure you have given the matter appropriate consideration and will give the volunteer a sense of both responsibility and security.
Consistency: A volunteer agreement can lay out the terms of a range of volunteers’ duties in a consistent manner for each different volunteer undertaking that role. This is particularly useful when the role can be undertaken by a number of different volunteers. It will also be useful to other staff and volunteers, as it shows consistency and gives a point of reference for the role and its obligations.
Professionalism: Drafting a volunteer agreement will enhance the professionalism of your organisation. It shows that your organisation is appropriately considering the roles of volunteers and gives the impression of an organisation that will take the same approach to staff.
Pitfalls to Avoid
Common Avenues of Pitfalls to Avoid
While it’s important for organizations to include protective provisions in their volunteer agreements, some overly broad protections could backfire if the courts were to determine that a particular clause impedes an individual’s ability to earn a living in a certain field or profession. In California, Section 16600 of the California Business and Professions Code states that "[e]very contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void, except as provided in this chapter." Common pitfalls that come up in volunteer agreements include:
Organizational brand or property as collateral. Organizations vary in how they structure their membership and supporter relationships, with some requiring a paid, formal membership or greater donations in order to acquire more benefits than the general public . Provided there is clear consideration and the terms of the collateral are limited and reasonable, making a supporter’s brand or community status as collateral can be a helpful tool for ensuring compliance.
Personal liability due to negligence or intentional misconduct. This is one of the most common pitfalls. While many organizations seek to limit liability exposure for every action a volunteer may take, it is important to remember that there will always be persons or activities over which the organization cannot provide guidance. Therefore, the incorporation of an indemnification clause within a volunteer agreement should be limited to issues arising from gross negligence, fraud, or mismanagement.