All officers and employees of the State of Wisconsin are afforded liability protection under the State’s Self-funded Property and Liability Program, as established by state statute. An additional limited number of other individuals may also qualify for the State’s liability protection. The purpose of this document is to briefly discuss some of the qualifications and conditions under which protection may or may not apply to this group of individuals collectively known as “agents” of the State.
It is important to state initially and to emphasize that:
- Protection cannot and does not apply to the general student body or volunteers in general,nor the activities in which they are involved;
- Individuals paid by honorariums (currently called “Payment to Individuals Report“) are considered independent contractors, not employees (see “Employer/Employee Relations“section of the Administrative Services Manual, and;
- The intent of the statutes as relates to “agents” is to provide protection when there is a direct and substantial benefit to the University. In other words, this is a “directed agency”approach.
The intent of Statute Sec. 895.46(l), as relates to agents, is to provide protection when there is a direct and substantial benefit to the University within the scope of the duties outlined in the agency agreement.
To meet this requirement of intent, control by the University has always been key for protection to be applicable. The control of people, activities, or organizations must be evident in a combination of the following criteria: appointments, budget, dismissal, evaluation, selection, scheduling, withdrawal, termination.
Control can be evidenced in several ways. If the University appoints the volunteer, schedules when the volunteer will perform, dismisses unsatisfactory performers, provides supervision similar to employees, the service is on University property or under University control and is similar to that provided by an employee, then, obviously, control exists. Of course, all of this must be directly related to official University business.
If the conditions discussed above are met, there is little doubt that an agency letter, confirming the person’s appointment and activities should be sent to that student or volunteer, with a copy to the campus Risk Manager for consideration.
Always consult with the Risk Management Office before asserting an agency relationship or sending an agency letter.
If the service is performed off-campus or at a site not under University control and is for the direct benefit of a non University organization, generally protection will not be extended to the individual as an agent of the State, as the student or volunteer is acting as an agent of the non University organization.
Exceptions to the rules can and do occur.
For example, if the service being performed is required as a condition to a professional designation or certification and the organization in which the service is to be performed has indicated in a written agreement or contract that the University must extend protection in order for the person to perform the required service or obtain the required training, that agreement must be reviewed and approved by Risk Management in order to extend agent liability protection to the person performing the service. If there are alternative organizations for which the service can be performed or training provided not requiring liability protection be extended to the student(s) or volunteer(s), then the alternative organization should be utilized. However, if the individual is paid by the non University organization, then a request for protection would not be approved as the individual is acting as an employee for that organization.
As a further condition of extending liability to individuals in categories such as students, volunteers, interns, practicums, trainees, etc., the organization to which the individuals will be assigned and the individuals under which they will work must also be subject to the control conditions stated earlier. If the University has no control over the organization and the immediate supervisor in the specific training area and cannot require that the organization perform in a manner beneficial to the University person, liability protection cannot be extended.
Some other activities where students or volunteers would generally not be eligible for extension of liability protection under the agent provision are those primarily of a recreational or social nature, field trips and persons involved in research relating to individual reports or papers, whether at an undergraduate, masters or doctoral level. Also generally not protected are student or volunteer performers and in some cases stage hands for entertainment activities, such as drama, music, dance and other such performances.
It is important to note that individual programs and the conditions surrounding them are the determining factors as to whether eligibility exists for extending protection.Generally, agent liability protection cannot be extended to most volunteers or assistants. Since volunteers are not covered by the State’s Worker Compensation Program, you are advised to have your own health and accident insurance in effect.