HomeMy WebLinkAboutMMIA Risk Management Bulletin (4)MMIA Montana'MunicipalHe,e.a.' Po Boxs9604.6669 Insurance 66 9 Authority
Date: May 3, 2006
To: MMIA Members
From: John M. Cummings, MBA, Pi:fR
Personnel Director
Employment Practices Specialist
RM Bnlletin #12- 16
· ,_~.:, MAY 5 2006
Re: Seasonal, Volunteer, and Contracted Employment COnsiderations
With the summer fast approaching, municipalities must once again address the issues involved
w/th seasonal employees, citizen volunteers, and contraetom In addition, as the Summer of
2006 approaches many Montana municipalities are facing a shortage of applicants for these
seasonal positions. Specifically, departments such as Parks and Kecreation and Street, and
Roads are facing increased workload demands and a decrease in applies, uts for these positions.
Whether filled through hiring, contracting, or through a staffing agency, municipalities must
address the hiring, placement, tra]u~ug and supervision 0fthese individuals. The following are
some risk management considerations for Montana's muulcipalities. '
Hiring/Placement:
As for all employees, make sure your municipality's job announcement and kixing procedures for
"s-miner-time" personnel are conducted in accordance with all applicable labor laws, barga~u~-g
agreements, and procedures established in policy manuals. As defined in Section 2-18-601,
MCA, the "seasonal" and "temporarf' employee classifications have very different implications
regarding employee status and benefit entitlements. Ensure that any newly l~red positions are
appropriately classified as "seasonal" or "temporarf' employees.
Take the necessary steps to select the most qualified and capable applicants, based upon their
education, experience and abilities. Written applications, pre-developed review criterion
processes and standardized interviews are strongly recommended. Accurate, updated job
descriptions are also essential to the success of this process. The job description should outline
the essential duties and responsibilities of the position, as well as the experience and education
required, specialized equipment utilized/operated, special skills or licenses needed, and the
physical and mental requirements needed to complete the essential fanctions of the position.
This newsletter is published as a service to our members. The articles are not a substitute for the Memorandum of Liability Coverage or other coverage
documents. All coverage determinations are made on a case-by-case basis, and can only be viewed on the unique facts of the claim presented.
Training:
Newly hired employees must receive appropriate training. This training should include safety
and job specific training sufficient to ensure the individual can perform their job duties in an
effective and efficient manner so that the murficipality will not have unreasonable loss exposures
due to injuries (worker's compensation or public) or property damage. Tl'fis training should.
include instruction on each piece of equipment the employee will be working with.
The Montana Safety Culture Act requires new employee orientation, job specific and periodic
training. New employee orientation training should inform all new hires of the municipality's
safety policies and procedures. This orientation should include their supervisor's name,
procedures for reporting accidents, unsafe conditions, and emergency protocol, as well as safety
expectations. To accomplish this, safety policies and procedures must be developed and
orientation responsibilities must be assigned.
In addition, job specLfic training, including hands-on trainhxg and procedures review must be
conducted by a department head, supervisor, or other who is familiar with the fa?ilities,
equipment, procedures and duties of the position and work environment. Regular "Tailgate"
safety meetings are au effective way to keep employees aware of utilizing personal protective
equipment and following established safety procedures. Proactive tra~nlng can reduce a
municipality's loss exposure resulting from employee injury, public liability and property
damage.
Supervision:
Supervision is essential to providing on-going expert leadership to individuals and crews. In
addition, supervisors should effectively execute trainlrtg, work scheduling, and on-the-job
supervising with a constant emphasis on employee and public safety. Supervisors should
identify and correct unsafe conditions whether they involve unsafe acts, procedures, equipment,
environment, work-sites, etc. Th.is can be accomplished during work planning stages and as
work activities progress. Employee productivity and safety, in conjunction with public
protection, can be mardmized by conscientious supervision.
Volunteers:
For some municipal activities, a city or town may decide to use volunteers instead of employees.
This decision should be deliberately considered because different exposures exist with the two
options and different management approaches are necessary.
Employees acting within the course and scope of their duties are agents of the municipality. By
statute, they must be covered by worker's compensation insurance which will provide specified
benefits and is their exclusive remedy if they are occupationally injured. They essentially cannot
make a claim againat their employer for contributing to their injury accident. Also, as agents of
the municipality, they are indemnified for negligent acts committed in the course and scope of
employment that results/n injury or loss to another party.
Unlike emergency response volunteers where worker's compensation coverage is required, the
worker's compensation statutes explicitly excluded volunteers as covered individuals unless an
entity elects to purchase additional insurance to specifically cover volunteers. If a city or town
uses volunteers, the volunteers are not cove~ed by worker's compensation insurance unless the
municipality specifically elects such additional coverage and notifies the IVIMIA in writing.
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Should a community choose to cover any non-emergency service volunteers, it is strongly
recommended they cover all individuals who volunteer time or services to the community.
Covered volunteers must be identified by name and social security number, their service hours
logged, and identified using the appropriate classification code. The MMIA has gaidelines
available to assist with this process.. :
Volunteers not covered by worker's compensation represent a different exposure to the city or
town than employees. If they become injured while providing service, they may/ncur medical
expenses in addition to lost-time and wage loss fi:om another occupation. This loss is to be borne
by the volunteer, not the entity. However if the volunteer alleges negligence on the part of the
· municipality, they may seek compensation and other relief through the court system.
A volunteer acting with/n the "course and scope" of their volunteer duties to the municipality can
be an agent of the municipality. The city or town indemnifies the:volunteers for negligent acts
they commit within the "course and scope" of the approved or allowed volunteer activities on
behalf of the city or town. Because volunteers create a liabil/ty exposure for the municipality,
cities and towns should proacfively manage their volunteers as though they were "employees".
Make sure the volunteers are capable of completing the desired service in a manner safe to
themselves and others. Provide necessary training and encourage them to seek guidance utilizing
the expertise of the mun/cipal employees. It is important to note that MMIA cannot cover
volunteers for agencies acting as partners with our municipal members.
The decision to use employees or volunteers needs to be an informed one. The loss :
consequences of each scenario aiCfers. Be aware of the exposures present and pmacfively
~ctdress them on an administrative and supenrlSory level. Contact the MMIA for additional
information On volunteer use and coverage.
Independent Contractors (IC):
Municipalities who utilize independent contractors need to be aware of changes in IC regulations
that went into effect in April of 2005. The regulations now require that independent contractors
either have the exemption or purchase workers' compensation insurance coverage on themselves.
Failure to obtain the exemption or workers' compemation insurance may result in the worker
being treated as an employee of the city or town. This would mean that the city or town may be
responsible for claims for injuries or occupational diseases and for payment of premium on their
wages.
For an individual to be conclusively presumed to be an independent contractor, the Department
of Labor & Industry (DOLl) must: (1) approve an application for an independent contractor
exemption certificate based upon a submission of a complete application after April 28,2005,
and; (2) the person must be working under the Independent Contractor exemption certificate.
To be "working under" an Independent Contractor exemption cea'fificate, the worker must be
performing the type of work listed on the certificate and the hiring agent aud the independent
contractor must not have a written or an oral agreement that the independent contractor's
certificate holder's status is that of an employee.
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Employees from Staffin~ A~encv:
In recent weeks MMIA has become aware that several municipalities are taming to Staffing
Agencies to provide necessary seasonal employees, lvl/VIIA recommends that cities and towns
pursuing this staffing option carefully review the contract between the staffing ~gency and the
municipality t0 determine which party is providing the necessary liability coverage, for the
This m especially ~mportant given the fact that leased
actions of the "leaSed" employee. ' ' "
employees are not captured as covered parties under the MMIA Memorandum of Coverage.
It is also important that municipalities clearly explain to the staffing agency, in detail, the nature
of the work being performed, the types of equipment being operated, and what personal
protective equipment may be required and/or provided. This information will assist both the
municipality and the staf£mg agency with finding the most qualified individual and also ensure
that liability risks are clearly communicated.
Three important tools a city or town has at its disposal in managing the risk associated with
"leased" employees are training, supervision, and personal protective equipment. By properly
training employees, monitoring their performance, and ensuring that safety protocols are being
followed, the city or town will greatly reduce its potential liability exposure.
Conclusion:
Seasonal workload and employment fluctuations are a reality for Montana's municipalities.
With them Come a variety of loss exposures. The need to implement proactive risk management
principles and to eliminate or reduce'loss-exposures is'imp0rtant to each ~omrnunity andre the
MMIA. Address the above mentioned issues, if you have not already done so. iContact Thomas
Danenhower, MMIA Risk Management Specialist or John Cnrnrnlngs, Personnel Director /
Employment Practices Specialist for more information or on-site assistance at 800-635-3089.
O:~.dminiztration - 1VRdlA~Jsk Manas~nent Bullotin~WY0$-06LRM Bulletin #12-06 Seazonal Emoloym~nt.doc
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