Earlier this week, a reader commented on our Integrity Staffing discussion with this question:
If an employee-who normally processes insurance claims-volunteered to decorate a bulletin board for a special event and arrived to the employer’s premises an hour before the start of his shift to do so, would the employer be required to compensate the employee for the hour spent decorating the board prior to clocking in?
This question focuses on a different issue than pre-shift and post-shift work. In this limited hypothetical, the question is whether and when an employer can permit employees to “volunteer” to perform work. For employers, the Fair Labor Standards Act (FLSA) places some strict limits on “volunteering” by employees to protect against the obvious abuse that could occur because of the vastly different bargaining positions between employers and employees. The FLSA requires 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. That means that unless the employer has properly classified an employee as exempt from overtime and/or the minimum wage pursuant to one of the available exemptions, that 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 and local laws rarely differ on this point (and sometimes provide stronger protections). When employers ask about this issue, they don’t usually ask whether employees must be paid but whether employees who “volunteer” are actually working. This issue comes up most often in the situation the commenter above mentions: when an employee is “volunteering” to do something other than his or her normal work.
Can you accept volunteer service from your employees? 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. In our next post, we’ll dig into the rules for nonprofits, but let’s focus first on for-profit employers. The answer is unusually clear for the FLSA, at least when it comes to employees’ work duties.
For-Profit Employers Cannot Accept or Use Volunteers
If you are a for-profit, private sector business, the Department of Labor (DOL) has clearly expressed that you cannot require or accept volunteer service from your nonexempt employees. Employers must either politely refuse the volunteer service or pay the employee for the work. It does not matter if the work does not produce a profit, or whether the work is different than the work the employee normally does.
Volunteering at Outside Charitable Events
The FLSA and its regulations provide only one exception to this clear rule, and only when it comes to volunteer service at outside events. Many employers conduct or sponsor community service events, volunteer days, or pro bono work. For these events only, for-profit, private sector employers can accept volunteer service from their employees (and for that matter, so can non-profit and/or public entities). Non-exempt employees can participate voluntarily and without compensation in your business’s outside charitable events if:
- The volunteer or charity event is unrelated to the your usual business and participation does not bring direct economic benefit to your business;
- 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.
The DOL and courts will weigh all of these factors, and you must satisfy all of them. Each case is different, too, so you cannot simply assume that every charitable event is the same, or that because you accepted volunteer service in the past that you can do so again. Our commenter’s hypothetical presents one easy situation: employers cannot force or allow non-exempt employees to “volunteer” their services to your business. This means that you may need to tell these employees that they cannot volunteer and that you must pay them for their time. For outside events and at non-profits (the subject of tomorrow’s post), whether employers can accept volunteer services is a closer question that depends on the unique facts of the particular event and business.