Distracted driving has been in the news in Maine. In August, the Legislature just missed overriding Governor LePage’s veto of a bill that would have banned handheld devices while driving. Expect some version of this bill to pass sooner or later, especially once we have a new governor. Texting-while-driving is already prohibited by Maine law. Meanwhile, also in August, the Maine Supreme Court issued a decision that makes it easier for the police to enforce existing distracted driving laws. The Court ruled that for civil actions (as opposed to criminal matters) law enforcement officers do not have to prove what specifically distracted a driver, only that she was distracted.
What does any of this has to do with your nonprofit organization? Well, potentially quite a lot if your organization owns vehicles. Or even if it has employees who conduct business while driving their own vehicles (which is just about every organization, right?). There’s a doctrine of tort law called vicarious liability, by which an employer can be liable for the acts of an employee conducted while that person is working. Keep in mind that most commercial general liability policies, the most common kind of insurance protection for nonprofit organizations, do not cover auto accidents. And separate from liability concerns, there’s a more fundament reason to have a distracted driving policy: to prevent accidents.
The federal Occupational Safety and Health Administration (OSHA) encourages all employers to enact distracted driving policies, and more and more businesses and nonprofits are doing so. Nowadays whenever I draft or review an Employee Handbook, I strongly urge my clients to include a policy prohibiting distracted driving. At the very least, such a policy should prohibit texting and other handheld devices. And ideally even hands-free devices should be prohibited. Studies indicate that the use of a hand-held phone, especially if it is being used to text, can increase the crash risk by a factor of 23, but even hands-free devices increase risk by a factor of four.
According to the federal Department of Transportation, 3,477 people in the U.S. were killed and 391,000 injured in motor vehicle crashes involving distracted drivers in 2015, with the numbers increasing every year. Don’t let your nonprofit become complicit in one of these tragedies: enact and enforce a distracted driving policy.
Devoted readers of this E-Bulletin will of course remember my June 2017 write-up of the Huff v. Regional Transportation Program case before the Maine Supreme Court. This case addresses the question of whether an individual who was treated as a volunteer by a nonprofit organization could nevertheless be deemed an employee for the purposes of Maine’s workers’ compensation law. Although the court proceeding is still pending, the Maine Legislature has clarified the issue in P.L. Ch. 117 (LD 1530).
This bill clarifies that a “nominal fee or stipend” as well as “reasonable benefits” paid by an employer (whether nonprofit or for-profit) for charitable volunteer service are not wages for the purposes of Maine’s unemployment compensation law. To qualify as a volunteer, the person must be serving for “civic, charitable or humanitarian reasons,” must offer her services “freely and without pressure or coercion, direct or implied, from an employer,” and must not “be otherwise employed the same employer or governmental entity to perform the same type of services as those for which the individual proposes to volunteer.”
The new statutory language is similar to the federal Fair Labor Standards Act and is consistent with Maine’s wage and hour laws. This change protects Maine’s nonprofits and businesses when they provide a stipend for volunteers. Without this clarification, employers that pay a stipend to volunteers might have been required to pay unemployment taxes in certain circumstances.
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