4-17-12; Volunteer remains a volunteer when our Appellate Court refuses to read an “employment relationship” into a volunteer agreement

In McKinney v. The Salvation Army, claimant was injured while participating in the Salvation Army’s rehabilitation program. Participants of the program were required to sign two documents as a condition of admission. The first document contained an exculpatory agreement clause and indicated participants were not considered employees of the Salvation Army but were expected to voluntarily perform assigned duties. The second document provided that work therapy was essential to participants’ rehabilitation and was never to be considered employment.


Four month after gaining admission to the program, the claimant suffered wrist injuries when he fell from a ladder while performing tasks as part of his work therapy. He subsequently filed a workers’ compensation claim against the Salvation Army. An arbitrator denied the claim finding the claimant was not an employee of the Salvation Army.


The claimant was involuntarily discharged from the rehabilitation program after filing his workers’ compensation claim. He then filed a civil complaint alleging harm from the Salvation Army’s negligence and his retaliatory discharge from the program after filing the workers’ compensation claim.


The Appellate Court, Fourth District, upheld the trial court’s entry of summary judgment as to the negligence counts in favor of the Salvation Army reasoning the exculpatory clause was enforceable and not against public policy as claimant was neither an employee of the Salvation Army nor did he suffer a lack in bargaining power which would have prevented him from negotiating around the exculpatory clause.  


Also interesting, are the Salvation Army’s arguments for its motion to dismiss the retaliatory discharge complaint at the trial court level. The Salvation Army argued claimant could not prove retaliatory discharge because he at no time was an employee of the Salvation Army. As “employment” was an essential element of retaliatory discharge, the Salvation Army argued claimant could not carry his burden of proof because he was barred by res judicata from relitigating the issue of whether there was an employment relationship after the workers’ compensation arbitrator found conclusively against the claimant on the issue.


Although the trial court made no specific findings when it dismissed claimant’s retaliatory discharge claim and the issue was not appealed, we think it was a creative argument that can and should be advocated in similar cases where a workers’ compensation arbitrator has found an employment relationship did not exist and there is a related retaliatory discharge claim.


We appreciate your thoughts and comments. This article was researched and written by Sean C. Brogan, J.D. Sean can be reached at sbrogan@keefe-law.com.