Public Works Q &A: on employees, volunteers and contractors
By Joseph J. Wathen, Esq.
(from Maine Townsman, March 1996)

This article discusses some issues concerning seasonal, volunteer and on-call workers and contractors in public works projects. It is presented in a Q & A format.

Every summer we hire students (ages 16-18) to mow the public cemeteries and parks. Are there any safety laws or regulations we should know about?

State law (26 MRSA 771 et seq.) does not expressly prohibit persons under 18 from operating power mowing equipment, but the State Department of Labor advises that extra efforts should be made to properly train minors since the incidence of injury with that age group is higher than that for adult workers.

The Department of Labor has adopted safety rules and regulations covering a variety of subjects, including eye protection, hearing protection and foot protection. For information on specific subjects, contact the Safety Division of the Department of Labor at 624-6460, or write to State House Station 82, Augusta, ME 04333.

We use workfare people (general assistance recipients) to sweep, rake and do other odd jobs in town. Are they considered our employees? What risks, if any, do we run by using such labor?

Workfare recipients are not considered employees for income tax or workers' comp purposes (see Closson v. Town of Southwest Harbor, 512 A.2d 1028) but are considered employees for general tort liability purposes. What this means is that if a workfare recipient is injured on the job, the Town's workers' comp will not cover the claim, so the Town may be sued by the person. For example, the person may allege that the Town provided him with inadequate training, supervision or equipment, and he was injured as a result. For this reason, we recommend that workfare laborers be assigned low-risk, supervised jobs which do not involve mechanized equipment, heavy lifting, or ladders.

If the workfare laborer injures a third person, the laborer is considered an employee of the Town (see 14 MRSA 8102) and the Town could be held responsible for the injury, as with any employee. However, you should check with your insurance company to see if workfare laborers are considered employees for coverage purposes. If not, the Town might have to pay such a claim from its own pocket.

The district court in our area sometimes requires a person to do "community service" work as part of his or her sentence. If that person is injured or injures someone else, will the court system assume responsibility?

No. If the community service person is not actually under the care and supervision of the sheriff while performing the job, but simply shows up on his own, the Town may be liable for injuries caused to or by the person, as is the case with workfare laborers. You should check with your liability insurer to see if community service workers are covered as employees. If not, the Town may have to pay a tort claim from its own funds. You can decline the services of the community service laborer, and tell the court that the Town cannot afford to assume the added risk of liability. If you do use community service laborers, it is best to limit them to low-risk jobs such as sweeping, raking, and general clean-up.

Several parents and students in Town have volunteered to help fix up a public lot so that the kids have a place to play. This will involve cutting brush, ram ing, and erecting some playground fixtures (swings, a slide, etc.). What liability does the Town face by using volunteer labor? Will waivers protect us?

Volunteers are not considered employees for workers' comp purposes, so if a volunteer is injured and can show that the Town was negligent (for example, failure to properly train or supervise) he or she will have a direct claim against the town.

To minimize the risk of injury, the Town should have volunteers do low-risk activities such as raking, shoveling, or using hand tools. Work involving power equipment and aerial work should be performed by trained personnel.

The Maine Department of Labor considers volunteers as employees for safety purposes, so you must make certain that volunteers are supplied with the necessary gear and training when doing any activity that requires particular gear or training. If you sup-ply the equipment, make certain that it is in good repair and that the person is instructed on its use, and warned of any dangers associated with the equipment. If you are not certain whether State regulations exist re-garding a particular activity, call the Bureau of Labor, Safety and Health Division at 624-6460.

Waivers may defend against some claims, but are not ironclad in all cases. For example, if a volunteer pro-vides his own tools and equipment, I recommend that you have him sign a waiver of claims related to the use or condition of the equipment. A Town cannot waive its own negligence, so waivers are most effective where the injury was caused by the person's own negligence or equipment. In addi-tion, waivers are not effective against claims by minors, and even the par-ents cannot waive a minor's legal rights, see Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979).

Our road commissioner sometimes hires extra help for a few weeks in the summer, and sometimes they drive the town truck which is a commercial vehicle (more than 26,000 pounds). Are these workers considered town employees for drug/alcohol testing purposes?

Yes, unless they have been contracted as independent contractors. If they are hired as temporary or seasonal labor, and are expected to drive commercial vehicles, they must be included in the drug and alcohol testing program.

We contract out most of our road maintenance and repair work. Our contract requires that the contractor have a certain amount of liability insurance. Some of the smaller contractors have complained, saying that the insurance requirement discriminates against them and favors the bigger operators. How should we respond?

Unfortunately, lawsuits are a fact of municipal life, and the Town is advised to keep its insurance requirement in place. Otherwise, the Town may have to pay a claim that the contractor's assets do not cover. This is tough on some operators, but there is simply no alternative for the Town given the risk of substantial liability.

In the summer we hire students as flaggers for our road projects. Are we required to provide any training for flagging, and if so where is that training available?

23 MRSA 707 requires that all privately-employed flaggers be trained according to the standards in the Manual on Uniform Traffic Control Devices (MUTCD).

That law "encourages" municipalities to provide similar training, but it is not required. However, we strongly recommend that municipal flaggers be trained according to the MUTCD for two reasons. First, flagging is an inherently dangerous activity and a trained flagger is less likely to be injured than is an untrained flagger. Second, a trained flagger is less likely to cause confusion and possible accidents among motorists.

Training booklets and videotapes are available. Contact the Maine Local Roads Center at 287-2151. In addition, the Local Roads Center is conducting work zone traffic control workshops in April and May, 1996 at various locations around the state.