Filed Date: 10/26/1976
Status: Precedential
Modified Date: 7/5/2016
HON. PHILIP ROSS Industrial Commissioner, Department of Labor
This is in response to your inquiry of September 9, 1976, wherein you request my opinion as to whether or not a minor serving as a volunteer with a volunteer ambulance service organization would be in violation of Labor Law §
"No minor of any age shall be employed in or assist in:
* * *
"r. as a helper on a motor vehicle."
You state in your letter that the minors herein are working for a volunteer ambulance service organization, and this opinion is confined to that factual situation. A volunteer ambulance service organization is established pursuant to Article 30 of Public Health Law. Such organization is defined in Public Health Law §
"3. `Voluntary ambulance service' means an ambulance service (i) operating not for pecuniary profit or financial gain, and (ii) no part of the assets or income of which is distributable to, or enures to the benefit of, its members, directors or officers except to the extent permitted under this article."
A crucial issue presented in your inquiry is whether or not there is an employment relationship. The term "employed" is defined in Labor Law §
The Bernal case dealt with former section
"They denote a contractual relation, not a mere casual voluntary rendition * * *."
That Court concluded as follows (p. 96):
"In this case there was no contract of hire or master and servant relationship between plaintiff and defendant; conducting the camp was not a business or an enterprise of a commercial character self-supporting and available to the general public * * * and the attendance here * * * was purely voluntary."
The Courts, in the above case, were dealing with a fact situation wherein a minor was doing chores for a charitable camp for the summer and was doing odd jobs such as serving meals, setting tables, washing and drying dishes and generally helping around the camp. The Courts held that there was no employer and employee relationship, and thus no violation of the Labor Law. The fact that the child worked for a charitable, not-for-profit organization which received its funding from voluntary contributions and the fact that no one else was paid, also appears to be of persuasive basis for the holding therein.
In Ludwig v. Lowe (
In the Ludwig case, the minor plaintiff was helping his half-brother, the defendant, construct a house, which plaintiff had been assisting him in doing on six or more occasions and for which he was not paid. The Court stated (
"It is the lack of the commercial aspect of the defendant's activity herein which in our view takes this case outside the purview of the Labor Law. * * * the defendant was not engaged in any commercial endeavor. Child labor legislation contemplates only those activities in which children are used for profit. * * *
"* * * the child labor legislation encompasses only those activities incidental to a business or commercial establishment * * *." (Emphasis supplied.)
I am also not unmindful of Warney v. Board of Education
(
The Court also distinguished the Bernal case (
"Here defendant does not admit but absolutely denies any employment and no relation of employer and employee existed; here, too, the project was not self-supporting but supported by outside charitable contributions * * * no payments were made by guest campers and the chores performed by plaintiff were reciprocated by other campers in the same age group for the benefit, not of the charity, but of the community. Further, in the Warney case at the time of the accident the infant was twelve years of age and the prohibition was absolute as the statutory exceptions permitting employment of a minor who is at least fourteen years were not applicable. * * *"
Public Health Law §
In order to fall within the ambit of the proscriptions of Labor Law §
However, it is necessary to call to your attention that although no violation of the Labor Law may be involved herein, there could be a violation of the provisions of the Education Law § 3231-a if a minor under the age of 16 years is used as a volunteer helper on the organization ambulances referred to herein. This section of the law declares it to be a misdemeanor,
"for any person to employ, use or exhibit any child under 16 — (d) in any — place dangerous, or injurious to life, limb, health or morals of such child". (Emphasis supplied.)
It is conceivable that using a volunteer minor under 16 years of age as a helper or attendant on an ambulance would be considered as potentially dangerous or injurious to the life, limb and health of such a minor by the State or local education authorities and by the Courts so as to warrant a prosecution for a violation of Education Law § 3231-a. In this connection, I might refer you to the case of Jones v. Hawkes AmbulanceService,
Manifestly, a minor over the age of 16 appears not to be covered by the protective provisions of the Education Law § 3231-a and, therefore, it is my further opinion, that such an individual may serve as a volunteer with a volunteer ambulance service organization established pursuant to Article 30 of the Public Health Law. I also call your attention to the provisions of Education Law §§