A few readers were surprised by our April 3 post's caution that, in some scenarios, a volunteer performing work for a federal Fair Labor Standards Act-covered non-profit organization might be an "employee" subject to that law's compensation requirements.

One observed that many non-profits are staffed in whole or in part by volunteers and described a longstanding sector-wide impression that non-profits may use volunteers for work with what the commenter described as "near-complete liberty."

FLSA principles do not as a general proposition prevent non-profits from using non-employee volunteers under the right circumstances.  But, whatever the conventional wisdom or prevailing practice might be, one should not simply assume that non-profits may do so with near-complete liberty.

As the U.S. Labor Department says, "There is no special provision in the FLSA which precludes an employer-employee relationship between a religious, charitable or nonprofit organization and persons who perform work for such an organization."  Section 10b03(a), Field Operations Handbook (U.S. Labor Department, October 10, 1993).

There are far too many different factual settings in which the FLSA's principles might be in play to articulate a one-size-fits-all rule about non-profit volunteerism.  Our point is that at least some such situations might well involve FLSA-covered employment, so it is wise to keep this possibility in mind.

And remember that, until relatively recent times, the conventional wisdom also was that unpaid internships presented no potential FLSA problems.

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A reader of our March 14 post relating to unpaid internships at non-profit organizations asks whether non-profits can avoid the intern debate by offering "volunteer" opportunities to engage in charitable or public-service activities.  But this simply changes the nature of the potential problem.

"Volunteer" Activities Can Be FLSA Employment

Considering someone to be a "volunteer" does not necessarily mean that he or she is a non-employee for federal Fair Labor Standards Act purposes.  This is true even if (i) the person is not otherwise employed by the organization; (ii) the individual's activities are said to be of a charitable or public-service nature, and (ii) the activities are carried out for or on behalf of a non-profit organization.

There is some overlap between the considerations relevant to who is and is not a true "intern" or "volunteer" so as not be an FLSA employee, but the two concepts are fundamentally different.  A principal distinction is that the underlying motivation for being a volunteer is not the same.  Perhaps one of the most important characteristics of volunteerism is whether the individual undertakes the activity for his or her own, personal civic, humanitarian, charitable, religious, or public-service reasons.

Some of the other factors include whether the activities are of a kind typically associated with volunteer work; are less than a full-time occupation for the individual; do not involve replacing regular employees or impairing employment opportunities; are subject only to "nominal" or "minimal" control by the recipient of the person's efforts; and tend to occur at times suiting the individual's own convenience, whether by schedule or otherwise.

Some Volunteers Fall Within Specific Exceptions

The FLSA itself excludes individuals who volunteer to perform services under certain circumstances for a state, a political subdivision of a state, or an interstate governmental agency.  29 U.S.C. § 203(e)(4).  These exceptions explain why, in the proper situations, volunteers at public schools and in some other settings are not viewed as being engaged in FLSA employment.

The FLSA also contains a special exception for individuals who volunteer their services to private, non-profit food banks and who receive groceries from the food banks.  But even this provision applies only if the person does so "solely for humanitarian purposes."

The point is that, just because a neighbor is a non-employee volunteer at the county's middle school, for example, one should not assume that "volunteers" of all sorts are seen in the same light.

Think Things Through Carefully

It is wise to be cautious in evaluating even non-profit "volunteer" relationships under the FLSA.  One illustration of the possible uncertainty is that the U.S. Labor Department's Office of Enforcement Policy has said that volunteers who staffed a non-profit hospital's gift shops were instead performing compensable work for FLSA purposes (see link to reproduction below).

Note too USDOL's position that individuals may not "volunteer" to do things for their employer which are the same as or are similar or related to their normal work duties.  Instead, it says, this is compensable FLSA worktime.  USDOL might also take the same view regarding time an employee spends even in arguably dissimilar services of a public or charitable nature, if this occurs at the employer's request, under its direction or control, or during the employee's normal working hours.  See, e.g., 29 C.F.R. § 785.44.  "Volunteering" by an organization's employees is beyond the scope of this post, but it is a "go slow" matter where the FLSA is concerned.  Compare Opinion Letter of Acting Wage-Hour Administrator FLSA2006-18 (June 1, 2006)(volunteering to chaperone cultural and sporting field trips provided under employer's auspices) with Opinion Letter of Acting Wage-Hour Administrator FLSA2001-18 (July 31, 2001)(status of certain activities engaged in by nurses employed at non-profit hospital).

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USDOL OEP Hospital Opinion 06 28 96.pdf (22.02 kb)

Our earlier post prompted questions about whether federal Fair Labor Standards Act principles are different for unpaid internships at non-profit organizations or for those sponsored by educational institutions for which the intern receives academic credit.  The short answer is:  No, they are not.

USDOL Statements Sound Encouraging

It is of course true that Deputy Wage and Hour Administrator Nancy Leppink's ominous quote referred to "for-profit" entities, and this is the sector upon which Fact Sheet # 71 focuses.  Furthermore, a Fact Sheet footnote says that unpaid internships are "generally permissible" for a non-profit charitable organization in the right circumstances.  The publication further implies that the relationship is more likely not to be viewed as FLSA employment if it is "structured around a classroom or academic experience . . . ," such as "where a college or university exercises oversight over the internship program and provides educational credit . . .."

Perhaps this reflects a Labor Department preference for encouraging what it believes to be the inherently-nobler pursuits of charities or educational institutions.  There might even be a degree of Executive Branch self-interest involved.  For example, full-time, unpaid White House interns are expected to:

◊   Perform tasks such as "conducting research, managing incoming inquiries, attending meetings, writing memos, and staffing events"; and

◊   Engage in their activities at least 4½ days a week, Monday through Friday, from 9 a.m. until 6 p.m.

This looks a lot like being "engaged in the operations of the employer or . . .  performing productive work," activities which the Fact Sheet says would be viewed as FLSA employment where a "business" is concerned.  But this does not mean that everyone else gets to do the same thing.

Don't Be Lulled To Sleep

Non-profit organizations permitting internships, and entities considering participating in student internships, should not simply assume clear-sailing where the risk of FLSA claims is concerned.

For one thing, it is unlikely that USDOL sees such unpaid internships as being "generally permissible" in each situation, or for non-profits of every kind, or for all school-sponsored arrangements.  Even USDOL does not consider the Fact Sheet to be an authoritative or binding official position.   Moreover, the Fact Sheet itself says that USDOL "is reviewing the need for additional guidance" on internships in the non-profit sector.  So notwithstanding the Fact Sheet's statement about what is "generally" the case, do not doubt that USDOL will assert FLSA liability for a particular unpaid internship, even one undertaken with a non-profit or in conjunction with a school, when it deems this to be warranted.

And even were it otherwise, USDOL is not the only potential source of a challenge.  Interns are perfectly free to assert their own FLSA claims in court should they decide to do so, without regard to what USDOL thinks or does.

The Bottom Line

Whether an unpaid internship occurs under the auspices of an educational institution, in a non-profit organization, or at a for-profit business, in the end the FLSA question still gets down to some version of this:  Do the circumstances clearly show that the relationship is for the purpose of generalized learning, education, and training that imparts to the participant significant knowledge of a broadly-applicable kind, or do they instead indicate that the idea is to have the person perform work?  In other words, if the motivation is something like, "We could sure use help from an intern this summer," that is a danger sign – whether the setting is for-profit, not-for-profit, school-related, or any other.

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