Generally, to qualify for workers' compensation benefits, a person must be established as an employee by receiving some form of payment from the employer for his or her services.

So, when someone is injured while volunteering, they're usually not eligible for workers' compensation benefits, but there are exceptions. For example, volunteers who are paid in kind or who fall into particular classes specifically mentioned in state law can be considered employees.

Non-monetary compensation

Someone who is being paid in kind for their services — through free meals from a restaurant or reduced rent from a landlord, for example — could be considered an employee if the parties had entered into an agreement about compensation. There must be some intent to enter into this relationship — receipt of a mere tip or gift doesn't make someone an employee.

Protected classes of volunteers

In some cases, state law defines certain classes of volunteers as employees for the purposes of workers' compensation.

Minnesota law  defines the following types of volunteers as employees:

• Volunteers working in state institutions, such as correctional facilities, under the supervision of the commissioner of Human Services or the commissioner of Corrections.
• Volunteers participating in programs established by local social service agencies , such as a county health and human services department. In this case, "local social services agency" means any agency established under Minn. Statutes section 393.01 , with each county in the state typically having a social services agency that includes the board of county commissioners.
• Volunteers in the building and construction industry who are working for joint labor-management nonprofit community service projects.
• Volunteers serving at a Minnesota veterans home.
• Volunteer ambulance drivers and attendants.
• Volunteer first responders (such as firefighters).

Wisconsin law also includes certain volunteers in its definition of employees, including:

• Members of volunteer fire squads, rescue squads or diving teams.
• Students in a technical college who, as part of their training, perform services or produce products for which the school collects a fee or who produce a product that is sold by the school.
• Public or private school students performing services as part of school work training, work experience or work study program, if certain conditions are met.
• Employees, volunteers or members of emergency management units and certain regional emergency response teams.

Good Samaritans

So-called Good Samaritans are almost always ineligible for workers' compensation benefits because there's typically no intent to establish an employment relationship and they're not usually compensated for their services. For example, in a 1969 Minnesota case (Huebner v. Farmers Co-op)  where a tractor driver was seriously injured while helping a grain elevator operator who had asked for assistance, the Minnesota Supreme Court ruled that the driver wasn't eligible for workers' compensation.

Things to consider when using volunteers

Since volunteers typically aren't entitled to workers' compensation benefits, organizations should think about the likelihood of an injury, and the potential legal and financial consequences if one occurs. If an injured volunteer files a lawsuit, who will pay the damages?  Will a general liability or some other insurance policy defend against the claim and pay resulting damages?  An employer's potential liability may well exceed the value of the volunteer's services.

For more information, see our Volunteers in the Workplace Legal Advisory – Minnesota and Volunteers in the Workplace Legal Advisory – Wisconsin .

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.