The key issue in determining compensability for an employee’s injury sustained while participating in a recreational or social activity in Colorado is whether the employee’s participation in the activity was voluntary. It may seem like it would be simple to determine whether an activity is voluntary, but there can be disputes over what behavior is really voluntary.
Factors to indicate voluntary participation
An employee’s participation is clearly not voluntary if the activity is mandatory. When management requires an employee to attend a specific event or the event is considered part of their job duties, this would be viewed as mandatory, not voluntary participation.
However, even if the event is not mandatory, there are many factors that could indicate an employee’s participation was still not voluntary. These could include positive incentives, such as wages for attending or being offered a promotion, bonus, or other incentive for attending, or negative incentives, such as repercussions for not attending or intimidating employees to attend. Some other factors to consider are whether management organized the activity, whether the activity was during working hours, whether work was being done, whether the employer chose the location and date for the activity, whether the employer derived some benefit from the activity, a large percentage of employees participated in the activity, and the activity was for employees only. Another factor that could make participation not voluntary is an employee’s feeling of duty to attend, i.e. if the employer initiated, organized, sponsored, and paid for the activity, then an employee could feel they should attend even if they do not want to attend.
Examples of voluntary and non-voluntary participation
There have been many cases litigated in Colorado to determine whether an employee’s participation in a recreational activity was voluntary. Here are a few examples where the court has found an employee’s participation to be voluntary:
An employee’s participation in a hockey game while attending a mandatory business conference was voluntary because the game was during a break time and organized by employees.
An employee’s participation in a camping trip was voluntary because the camping trip was planned during breaks, employees paid to attend and provided their own gear, few employees attended, only one manager attended, and there were no negative consequences if an employee did not participate. The employee’s participation was voluntary even though the employer and a manager donated food for the trip, the trip was advertised as a way for employees to get to know each other, and the trip was organized and planned by a manager.
An employee’s participation in a softball team was voluntary because he was free to play for another team or stop playing, the employer did not initiate the recreational activity, the employer did not financially sponsor the team, the employer did not provide transportation to the games, the employer did not pay the employee to play on the team or reimburse him for any expenses incurred by playing on the team, and the practices and games were during non-working hours. The employee’s participation was voluntary even though the employer provided bats and balls for the team and the employer’s name was advertised on the team’s jerseys.
Below are a few cases where the court has held that the employee’s participation in the recreational activity was not voluntary:
An employee’s participation in a company’s bowling party was not voluntary because the party was during working hours; it was held to boost low employee morale; the supervisor chose the location; the employer initiated, organized, sponsored, and paid for the party; and the employer mandated attendance.
An employee’s participation in set-up of a company picnic was not voluntary because he thought he was required to volunteer for at least one event-planning committee, the committee met during working hours, the employee was paid during the time he planned the event, and the employer paid for the event. The employee’s participation was not voluntary even though the employee was not being paid during the set-up of the picnic, the set-up occurred on his day off of work, and attendance at the picnic was not mandatory.
An employee’s participation in a golfing outing was not voluntary because his supervisor planned the outing, the employee was intimated by his supervisor and he felt he needed to attend to stay in favor with his supervisor to obtain a promotion, the employee came in on his day off to discuss his evaluation, and his evaluation and business were discussed during the outing. The employee’s participation was not voluntary even though the employer did not pay for the golf outing and the employee was off the clock at the time.
Conclusion
The determination compensability for an injury sustained during a recreational or social activity is whether participation in the activity is voluntary. All of the facts surrounding the organizing, planning, and execution of an activity will factor into a court’s decision whether an injured employee’s participation was truly voluntary or not.
For further questions on this topic, please contact one of our attorneys at 720-488-9586.
