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Municipal Technical Advisory Service (MTAS)

Original Author: Ashburn, Melissa
Date of Material: 09/22/2004

Insurance--Workers compensation
Housing authorities

Workers' Compensation Benefits for Volunteer Workers

Reviewed Date: 07/15/2021
The city housing authority asked if community service workers would be eligible for workers' compensation benefits.

September 22, 2004

Re: residents performing community service - workers’ compensation eligibility

Dear Executive Director of the Housing Authority,

I am in receipt of your letter to your Management Consultant in which you ask whether residents performing community service would be eligible for workers’ compensation. My research reveals that the answer is no.

The basis of liability under the Workers’ Compensation Act is the employer-employee relationship. An “employee” is defined in Tennessee Code Annotated § 50-6-102(9)(A) as:

...every person, including a minor, whether lawfully or unlawfully the service of an employer....under any contract of hire or apprenticeship, written or implied.

“Employer” is defined in the act, at T.C.A. 50-6-102(11) as:

“Employer” includes any individual, firm, association or corporation,...using the services of not less than five (5) persons for pay..... (emphasis added).

Based upon this language from the Workers’ Compensation Act, Tennessee courts have consistently denied workers’ compensation benefits to volunteer workers, who expect no payment for their services. Black v. Dance, 643 S.W.2d 654 (Tenn. 1982); Haney v. First American National Bank, 1999 WL 1212697 (Tenn. App.)(unpublished opinion). Simply stated “there must be an express or implied contract for compensation for services in order to support a status of employee under the Workers’ Compensation Act.” Hill v. King, 663 S.W.2d 435, 439 (Tenn. App. 1983).

I understand from the article you enclosed in your correspondence that a legal opinion in New Jersey has reached a different conclusion, determining that community service volunteers may be eligible for workers’ compensation benefits. There are numerous differences between the New Jersey law on workers’ compensation and the statute followed in Tennessee. The definitions used in the New Jersey statute follow:

“Employer” is declared to be synonymous with master, and includes natural persons, partnerships, and corporations; “employee” is synonymous with servant, and includes all natural persons...who perform service for an employer for financial consideration, exclusive of (1) employees eligible under the federal “Longshore and Harbor Workers’ Compensation Act”....and (2) casual employments, which shall be defined, if in connection with the employer’s business, as employment the occasion for which arises by chance or is purely accidental; or if not in connection with any business of the employer, as employment not regular, periodic or recurring... New Jersey Statutes § 34:15-36.

Although a much more extensive definition of “employee” appears in the New Jersey statute, similar salient words “for financial consideration” are used.

To address this issue of a potential finding that community service workers may be entitled to workers’ compensation benefits, it is important to note that the opinion rendered in New Jersey is not a court opinion or even an Attorney General opinion. Nevertheless, if you examine court cases from different jurisdictions, those instances in which volunteers have been found to be eligible for benefits involve situations in which the person received some benefit in exchange for the service performed, usually in the form of free room and board.

There are several cases in which student nurses have been awarded workers’ compensation benefits when injured during unpaid services rendered at hospitals, as the students received tuition payments or free lodging in exchange for their work. Carraway Methodist Hospital v. Pitts, 57 So.2d 96 (Ala. 1952); Brewers Case, 141 N.E.2d 281 (Mass. 1957); Krause v. Trustees of Hamline University, 68 N.W.2d 124 (Minn. 1955); Heget v. Christ Hospital, 58 A.2d 615 (N.J. 1948); Bernstein v. Beth Israel Hospital, 140 N.E. 694 (N.Y. 1923). In that sense, the student nurses were “compensated” for their time and work.

One could argue that, since the federal law requires residents of public housing to perform community service, the residents are compensated by being eligible for low-rent housing. A significant difference between this situation and the student nurse cases is that the hospitals in which the student nurses worked and were injured were the same institutions which paid their tuition and provided housing. If the public housing authority does not operate its own community service organization, but merely requires that residents perform community service through various organizations, unaffiliated with the housing authority, then this “compensation” issue is further removed. If the volunteer is not receiving any benefit directly from the organization for which he or she performs community service, then the argument that they should be entitled to workers’ compensation benefits becomes much weaker.

Although it is my opinion that Tennessee courts will not modify earlier rulings and find a volunteer to be eligible for workers’ compensation, to be prudent it is advisable that the community services provided by residents of the housing authority not be provided directly to the authority. In other words, it is best for the residents to perform volunteer services for different, unaffiliated organizations. In such a situation, there would be no potential for a viable workers’ compensation claim, as no “compensation” or benefit is received by the volunteer from the unaffiliated organization.

I hope this information is helpful.

Thank you for consulting with MTAS.


Melissa Ashburn
Legal Consultant