Under Massachusetts General Laws 152 which is the worker’s compensation statute, 1 “employees are described as every person in the service of another under any contract or hire, expressed, or implied, oral or written excepting…” As to the exceptions the key exception is that there must be an employer, employee relationship and there must be a contract for hire. In order for there to be a valid contract for hire there must be an offer of employment, acceptance of the offer and consideration for the services rendered. Arguably, in a volunteer situation there is no offer of employment no acceptance, and no consideration, i.e., no salary. So under that analysis the volunteer would not be eligible to collect worker’s compensation.
However, there are exceptions to that rule. A student offered a job as a volunteer may be an exception. An employer has the benefit of that work. The volunteer has the benefit of obtaining experience and knowledge in that field. Currently in Massachusetts, there is a clear exception for high school students in this volunteer role. There is not a clear written exception for college or law school students.
On the backside of that argument is the fact that if the employee is not protected by worker’s compensation the employer is not protected by the exclusivity of worker’s compensation. As a result, a volunteer/student could sue the employer under a direct negligence theory.
The solutions to this dilemma are multiple. They can be simple as:
- paying the volunteer;
- Having the volunteer sign a hold harmless agreement;
- Purchasing a separate insurance policy for volunteers to be covered under worker’s compensation.
If you have an accident and feel you may fall under this unique situation, the attorneys of Keches Law Group will be able to discuss your situation with you and can assist you in your recovery.