Over the past year or so, we have discussed the Fair Labor Standards Act’s application to both paid interns and unpaid interns, as well as independent contractors. One area we have covered briefly in the past, but not explored in depth, is the issue of volunteers. If you have been reading along, you know by now that if an individual is an employee (as opposed to a properly classified unpaid intern or independent contractor, for example), he or she cannot waive the protections of the FLSA. In other words, unless the employee is subject to an exemption, an employer must pay the employee at least the minimum wage for all hours worked, plus an overtime premium for all hours worked over forty in a week. State laws, too, provide similar requirements. But what about volunteers? Many nonprofit organizations, public agencies, schools, churches, and other similar entities would cease to exist, or at least be severely crippled, if not for the contributions and involvement of volunteers. Can an individual volunteer their services? The answer might surprise you.
For-Profit Employers Cannot Accept Volunteers
In our next post, we’ll dig into the rules for nonprofits, but let’s focus first on for-profit employers. The short answer: don’t crank up your new volunteer program just yet. The Department of Labor (DOL) has clearly expressed that nonexempt employees cannot volunteer their services to for-profit, private sector employers. In one of the few places where the FLSA is absolutely clear, the DOL provides no exceptions to this rule. Even if the non-exempt employee offers to volunteer services to your company, you must gracefully decline.
Volunteering at Outside Events
That does not mean that all charity must be sacrificed in pursuit of the almighty dollar. Many companies conduct community service events or volunteer days during the year. For-profit (and nonprofit) employers often sponsor events ranging from career days at schools to charity races to volunteer days at local aid organizations or shelters. Under the right circumstances, you do not need to compensate non-exempt employees for this volunteer work, even if you are a for-profit entity. Non-exempt employees can participate in your business’s charity events if:
- The volunteer or charity event is unrelated to the your usual business and participation does not bring direct economic benefit to you;
- The event takes place outside of regular working hours;
- Employees’ participation is truly voluntary, meaning that you neither treat volunteer participants more favorably nor treat non-participants less favorably;
- You do not employ and regularly pay workers to participate in that event.
No single factor is determinative here. Like so much in wage and hour law, the unique facts of your situation will determine the outcome. The two ends of the spectrum are easy: non-exempt employees cannot be forced to “volunteer” their services and (unfortunately) you may have to tell them that they cannot volunteer their services to your for-profit business. Between these two ends, though, you will find a range of gray areas, particularly for nonprofits, the subject of our next post.