Normally in HR Hero Line, we focus on employment laws and issues that affect most employers. But when a state-specific workers’ comp case comes along that involves (1) a worker smoking pot before (2) his job feeding grizzly bears for (3) a company that says its workers were volunteers, (not employees), we think it’s worth passing along.
Under the law, there is no particular method required for moving beyond volunteer status and establishing an employment relationship. All that’s needed is an individual providing services to another in exchange for something of value. Nonetheless, it’s best for all concerned that the formalities be observed. Otherwise, you could find yourself in a situation similar to the one recently addressed by the Montana Supreme Court.
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Russell Kilpatrick maintained Great Bear Adventures, a bear park, near West Glacier. Between Memorial Day and Labor Day, customers would drive through the park to observe grizzly and black bears.
Brock Hopkins, an acquaintance of Kilpatrick’s son, began helping with duties around the bear park in 2002. He eventually began feeding the bears inside the park. Kilpatrick paid him and other helpers in cash each day. Although Hopkins didn’t keep a record of the payments he received, he estimated that he was paid approximately $140 a day in 2006 and $160 per day in 2007.
Unfortunately, Hopkins’ career as a bear feeder came to a halt on November 2, 2007. That day, Hopkins smoked some marijuana before entering the bear park. He placed his marijuana pipe in his pants pocket and reported to Kilpatrick, who asked him to fix some boards on the park gates. After completing the job, he mixed up bear food and drove Kilpatrick’s truck into the park. Unfortunately, when he entered the bears’ pen with the food, he was attacked by a grizzly bear. He was able to escape but suffered severe injuries.
Hopkins filed a workers’ compensation claim. Since Kilpatrick wasn’t insured, the benefits were paid by the Uninsured Employers’ Fund, which then filed a claim against Kilpatrick.
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Court to employer: “It is called ’employment'”
Kilpatrick claimed that his family operated the bear park, which didn’t have any employees. He claimed that individuals who helped around the park were volunteers. He acknowledged giving money to Hopkins and others but said he did it “out of my heart.” He also said he never asked Hopkins to feed the bears on the day of the accident. He said he asked him to fix the gates, but Hopkins did that as a favor and didn’t expect to be paid.
After Hopkins was released from the hospital, Kilpatrick gave him $300. Kilpatrick said the money wasn’t wages — it was to find out if Hopkins was dealing marijuana. The Workers’ Compensation Court didn’t find Kilpatrick credible. In fact, it stated: “There is a term of art used to describe the regular exchange of money for favors — it is called ’employment.'”
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Court to pot smoker: “Mind-bogglingly stupid”
Under the Montana Workers’ Compensation Act, an employee’s use of alcohol or illegal drugs can bar him from receiving benefits if it “is the major contributing cause of the accident.” Although Kilpatrick speculated that Hopkins might have been smoking marijuana in the bear pen, the court found no evidence to support his suspicion. It noted that grizzly bears are “equal opportunity maulers” and aren’t necessarily known for attacking marijuana users.
According to the court, “Hopkins’ use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most.” Nonetheless, the court found that his use of marijuana wasn’t a contributing cause of his accident. Hopkins v. Uninsured Employers’ Fund and Uninsured Employers’ Fund v. Russell A. Kilpatrick , 2010 MTWCC 9 (May 4, 2010).
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Kilpatrick’s cash payments to workers and failure to purchase workers’ compensation insurance or withhold taxes is going to cost him a great deal more than it would have had he complied with the law.
Every person who provides services should have a status. While volunteers aren’t considered employees for purposes of workers’ compensation, they also don’t receive wages. That means they aren’t paid in cash, by check, or otherwise. If an individual isn’t a volunteer or an independent contractor with an exemption certificate from the Montana Department of Labor and Industry, he is an employee and must be treated as such.
Does your state have a medical marijuana? How does that affect employment laws and regulations? Check out this special issue of Employers State Law Alert for more information.