Volunteerism is again on the upswing as the holiday season enters its most-intense period.  Businesses and other organizations should reacquaint themselves with the principles summarized in our November 2011 post cautioning that some "volunteers" or "volunteer" activities might be subject to the requirements of the FLSA.

*     *     *

The holiday spirit moves many to volunteer for activities of a benevolent nature.  An organization to which such individuals donate services should consider the possibility that they might be "employees" under the federal Fair Labor Standards Act.  Getting this wrong could result in liability for back-wages, child-labor penalties, and other remedies.

General Principles

The U.S. Labor Department says that, under certain circumstances, the FLSA permits people to donate their time as non-employees for humanitarian, religious, charitable, or other public-service reasons.  However, the person must do this on a genuinely voluntary basis and without expecting or receiving wages.  USDOL has also said that, in all but "rare" situations, its policy is to limit volunteer status to qualifying activities for non-profit entities.

Relevant factors can include things like whether the person's services:

♦   Are truly done for altruistic motives;

♦   Are of a kind typically associated with volunteer work;

♦   Are less than a full-time occupation for the person;

♦   Do not displace employees or impair employment opportunities;

♦   Involve only "nominal" or "minimal" control by the recipient of the services; and/or

♦   Typically occur at times convenient to the person.

USDOL maintains that the FLSA does not allow employees to volunteer to their employer unpaid services which are the same as, similar to, or related to their normal duties.  With limited exceptions, USDOL takes the same position even when an employee provides different services of a public-service or charitable nature that are done at the employer's request, under its direction or control, or during the employee's normal working hours.

Holiday Activities As FLSA "Employment"

A U.S. Wage and Hour Division opinion letter (reproduction linked below) illustrates that unpaid efforts donated even by people who are not otherwise employees can sometimes run afoul of the FLSA.  A company planned to offer gift-wrapping services to customers during the weeks leading up to Christmas.  This was to be done on the company's premises.

The services had previously been provided by temporary employees.  However, non-profit community and church groups said that their members would volunteer to wrap gifts in the hope that the company would donate money to the groups.  The company would not control the members' hours; would not supervise them directly; would maintain only general conduct rules; and would permit the volunteers to use its restrooms and breakrooms.

The Division concluded that the members would be FLSA employees rather than volunteers.  The Administrator observed that the individuals' efforts would be rendered to a profit-seeking entity, rather than to any community or religious program.  In her view, the members intended to contribute money to their organizations and were simply selling their services to the company in order to earn those sums.

As this shows, it can be unclear whether a relationship is one of volunteerism rather than FLSA employment.  Practically speaking, the organization receiving a person's services bears the risk of being incorrect in viewing activities as noncompensable volunteerism.  This might seem to be unfair, but it reflects a philosophy that the FLSA does not allow the risk to fall upon individuals whom the law is intended to protect.

◊   Have a comment or something else to add?  Please use our comment feature below.

Holiday Volunteer Opinion 07 18 96.pdf (24.11 kb)

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.

◊   Have a comment or something else to add?  Please use our comment feature below.

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).

◊   Have a comment or something else to add?  Please use our comment feature below.

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

The holiday spirit moves many to volunteer for activities of a benevolent nature.  An organization to which such individuals donate services should consider the possibility that they might be "employees" under the federal Fair Labor Standards Act.  Getting this wrong could result in liability for back-wages, child-labor penalties, and other remedies.

General Principles

The U.S. Labor Department says that, under certain circumstances, the FLSA permits people to donate their time as non-employees for humanitarian, religious, charitable, or other public-service reasons.  However, the person must do this on a genuinely voluntary basis and without expecting or receiving wages.  DOL has also said that, in all but "rare" situations, its policy is to limit volunteer status to qualifying activities for non-profit entities.

Relevant factors can include things like whether the person's services:

♦   Are truly done for altruistic motives;

♦   Are of a kind typically associated with volunteer work;

♦   Are less than a full-time occupation for the person;

♦   Do not displace employees or impair employment opportunities;

♦   Involve only "nominal" or "minimal" control by the recipient of the services; and/or

♦   Typically occur at times convenient to the person.

DOL maintains that the FLSA does not allow employees to volunteer to their employer unpaid services which are the same as, similar to, or related to their normal duties.  With limited exceptions, DOL takes the same position even when an employee provides different services of a public-service or charitable nature that are done at the employer's request, under its direction or control, or during the employee's normal working hours.

Holiday Activities As FLSA "Employment"

A U.S. Wage and Hour Division opinion letter (reproduction linked below) illustrates that unpaid efforts donated even by people who are not otherwise employees can sometimes run afoul of the FLSA.  A company planned to offer gift-wrapping services to customers during the weeks leading up to Christmas.  This was to be done on the company's premises.

The services had previously been provided by temporary employees.  However, non-profit community and church groups said that their members would volunteer to wrap gifts in the hope that the company would donate money to the groups.  The company would not control the members' hours; would not supervise them directly; would maintain only general conduct rules; and would permit the volunteers to use its restrooms and breakrooms.

The Division concluded that the members would be FLSA employees rather than volunteers.  The Administrator observed that the individuals' efforts would be rendered to a profit-seeking entity, rather than to any community or religious program.  In her view, the members intended to contribute money to their organizations and were simply selling their services to the company in order to earn those sums.

As this shows, it can be unclear whether a relationship is one of volunteerism rather than FLSA employment.  Practically speaking, the organization receiving a person's services bears the risk of being incorrect in viewing activities as noncompensable volunteerism.  This might seem to be unfair, but it reflects a philosophy that the FLSA does not allow the risk to fall upon individuals whom the law is intended to protect.

◊   Have a comment or something else to add?  Please use our comment feature below.

Holiday Volunteer Opinion 07 18 96.pdf (24.11 kb)