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Understanding and protecting your volunteers' legal rights

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Here’s a statistic many of you may not be aware of: nearly 17 million Canadians have done volunteer work during their lives. Stated differently: about 59% of Canadians aged 15 and older, have volunteered.

That’s a lot of volunteering by a lot of people motivated to help others for a plethora of reasons. Yet this important resource can sometimes be overlooked - or undervalued - by organizations that rely on them to do jobs that may not be done by paid staff. The operative word being: “jobs.” That's an important term to note for any business or charity that engages a volunteer because there are legal requirements and protections that deal specifically with volunteer rights.

Volunployees

Ask Paula Speevak, president and CEO of Volunteer Canada, whether volunteers have the equivalent standing as salaried staff, and her response is unwavering.

"If an employer is responsible for anything done in its name, whether by a volunteer, paid employee, a student placement, an intern, etc., then the answer is yes," she says.

As such, Speevak also notes that by extension, it is also incumbent on employers and organizations to provide “a safe, harassment-free environment that adheres to human rights, whether they’re engaging with paid employees or volunteers. In the broadest sense, there is no difference when it comes to [rights of volunteers]. For me, that is the most useful thing to know."

She adds: "Now, volunteers are not always specified in legislation...regardless, an organization is responsible for employees - paid or otherwise."

"In terms of privacy and access to information (regarding volunteers)...if you have information that is personal, as defined in privacy legislation, then that information, those files, need to be in a safe place with limited access. Secondly, when looking at human resource standards, if you have a file that has all the information that you gathered when engaging a volunteer; and then maybe every so often you add notes of appreciation about those volunteers, or what have you... those volunteers have the right to see their files. They can ask for that. Because it is theirs."

"Requesting to see what's in their file is something organizations should be prepared for. And when you think about all the casual comments and notes [an organization or manager] might write in that file, you have to assume that could be read by the volunteer."

Know the law

Terrance Carter, managing partner at Carters Professional Corporation (Carters), an Ontario legal firm specializing in charity law, tells CharityVillage that his firm has seen a growth of interest in defining the roles and rights of volunteers within nonprofits. He pointed to his organization's widely disseminated Charity Law Bulletin that has contained numerous posts on the subject of volunteers. Of particular note is an October 29, 2014 bulletin that discusses what legal aspects charities need to consider when it comes to volunteers.

As volunteers are essential contributors to the charity sector, it begins, it follows that "a well-drafted volunteer agreement can be essential to limiting potential liabilities" both for the volunteer and the organization that engages them, the bulletin states. "Charities and not-for-profits can be directly as well as vicariously liable for harm caused either by or to a volunteer."

However, Carters makes a critical legal-technical distinction between paid employees and volunteers in the eyes of the law.

"At law, volunteers are generally treated as agents when they are authorized to act on behalf of an organization in some way. However, volunteers are not employees, because they do not receive compensation, and nor are they interns, who are generally understood to be individuals receiving training for a position for which they would then expect to receive pay," according to the bulletin. That said, just because volunteers aren't technically considered employees, they are still entitled to similar legal protections.

As Carter's bulletin reports, the Supreme Court of Canada has ruled that "charities and not-for-profits have the same duty to screen and supervise volunteers as commercial enterprises do in regards to paid employees."

National standards

In its 2012 report on the voluntary sector, the Government of Canada addresses some of the ongoing concerns about treatment and rights of volunteers. The Screening Handbook: Tools and resources to better match people and organizations,improve the safety and quality of programs in communities, and reduce risks and liability, was prepared by Volunteer Canada and Speevak suggests that charity sector leadership go through it for any questions regarding how to embrace and interact with their own organizations' volunteers. However, a disclaimer on the document reminds readers that the report does not offer legal advice.

The document lays out comprehensive sections on human rights, privacy rights, integrated human resource practices and essential screening methods organizations should use when bringing on volunteers. However, questions about personal information-gathering and usage of information given by volunteers, is sometimes a trickier issue.

In general, the handbook advises that organizations create best practices around collection, retention and eventual disposal of the personal information of its volunteers.

"The organization should normally use or disclose personal information only for the purpose for which it was collected, and should keep it only as long as it is needed for that purpose, unless the organization has the volunteer’s consent to do something else with it, or is legally required to use or disclose it for other purposes," according to the handbook.

Share the news, spare the “ask”

Though regulations may vary from province to province, generally speaking, Speevak says that nonprofits and charities can – and should – include volunteers on their internal and external communications vehicles (such as all-staff emails, newsletters, etc.). They are, after all, a part of the team and should be given the same planning, strategic and sundry news that other staff receive to enhance their performance and engagement with the cause.

However, organizations should also act with restraint when thinking about automatically adding volunteers to direct mail lists or other fundraising campaigns.

"When you gather contact info from volunteer applicants, or the volunteers you engage, if your organization's practice is to invite employees to be on an internal mailing list, then you have to invite them as well and they need to agree,” Speevak says. “Contact information is supposed to be used to be in touch with the person during the selection process, and then to be in touch with them on matters that directly relate to their volunteer role. So, while they're a volunteer, it certainly is reasonable to assume they'll want to know what is going on in your organization.

"However, if a volunteer gets a separate request for a donation, then that's problematic. That is likely not why they gave their contact information." Especially with today's increased scrutiny over privacy and email spam, it is important to both be respectful of how you use an individual's email address, as well as remaining legally compliant. When in doubt, provide your volunteers a chance to opt in to any communication they'd like to receive, including fundraising appeals, when they start working with your organization.

Note: For anyone looking for a more in-depth, legal review of volunteer rights, Carter suggests viewing a special webinar, titled: Volunteer Agreements: Managing Volunteer Relations and Reducing Risk. It is hosted on Imagine Canada’s Sector Source webpage.

The 49-minute course, prepared by Carters, is replete with detailed information and could be immensely useful for any organization thinking about addressing their volunteer needs.

Andy Levy-Ajzenkopf is a professional writer living in Toronto. He can be reached at aajzenkopf@yahoo.com.

Please note: While we ensure that all links and email addresses are accurate at their publishing date, the quick-changing nature of the web means that some links to other web sites and email addresses may no longer be accurate.

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wgfleming41@gmail.com wgfleming41@gmail.com
How about the legal status of volunteering in terms of compulsion and coercion? To what extent, if any, can a volunteer be required to do anything in a voluntary organisation? Is mandatory volunteering a legal oxymoron? Can a volunteer sign away her or his voluntary status by signing an organisation's operating agreement which includes mandatory policies?
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