Maine Supreme Court Case Involving Dispute Over Volunteer vs. Employee Status Could Have Far-Reaching Implications

Under the Maine Workers’ Compensation Act (§ 102(11)(A)), an “employee” is “every person in the service of another under any contract of hire, express or implied, oral or written.”

Generally, volunteers are not covered under the Workers’ Compensation Act. In Harlow v. Agway, Inc., 327 A.2d 856 (Me. 1974), the Law Court held that “[a]n essential element in creating an employer-employee relationship, and consistent with the purposes for which the [Act] was enacted, is payment, or expected payment, of some consideration by an employee to an employee, thus excluding from coverage purely gratuitous workers who neither receive, nor expect to receive, pay or other remuneration for their services.” In Closson v. Town of Southwest Harbor, 512 A.2d 1028 (Me. 1986), an individual who had applied for general assistance was injured while participating in the program’s work requirement. The Law Court found that because a participant in the program neither received nor could have expected to receive remuneration or wages for the services he performs, no employment relationship existed.

On October 12, the Maine Supreme Court heard oral arguments in the case of Huff v. Regional Transportation Program. At issue is whether an individual can be an “employee” for workers' compensation purposes even when treated as a volunteer by a nonprofit organization. 

In Huff v. Regional Transportation Program, Me. WCB App. Div. No. 16-40 (November 15, 2016), in 2011, an employee became a volunteer driver from the Regional Transportation Program (RTP), a nonprofit that provides elderly transportation. In conjunction with serving in this position, the employee signed a memorandum of understanding stating he was a volunteer. He also used his own vehicle to drive people around. The individual was reimbursed for expenses by RTP at the IRS employee reimbursement rate of 41 cents per mile. He generally received $700-$800/week in reimbursements. In 2012, the employee was involved in an accident while driving for RTP. He brought a claim for workers’ compensation benefits as an RTP employee, which the Workers’ Compensation Board (WCB) denied, finding he was a volunteer. 

The WCB Appellate Division affirmed the Board’s decision. The Appellate Division rejected the individual’s contention that the $0.41 per mile that the driver received as reimbursement constituted remuneration. The Appellate Division also rejected the argument that the $0.41 reimbursement rate is an IRS rate specifically set for employees, noting that provisions of the tax code do not dictate interpretations of the Workers’ Compensation Act. Because the individual’s services were without remuneration, he was not an employee under the Act. The Appellate Division found this case distinguishable from Harriman v. EMK, 1998 Me. Super. LEXIS 58 (Mar. 13, 1998), in which a volunteer, in exchange for services, was allowed to ski at any time without charge, received free beverages and was able to earn free ski passes for friends based on number of hours she worked. The key difference was that, in Harriman, that individual did not provide services on a purely gratuitous basis, but exchanged her services for valuable remuneration that was not fixed.

The decision may have significant implications for nonprofit employers.