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Volunteers and the FLSA: When Employers Must Pay for Volunteer Work

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.

11 comments

  1. Mr. Hass,

    Thank you for covering this specific topic.

    The interrelationship causes this topic to get confusing, at least for me, with regards to the for-profit sector. If the employee decorated a board prior to the start of work, the “voluntary” project was one done “off the clock” and if it is-in fact-considered “off the clock” work, then it should qualify as “compensable” time. Yet, the DOL (and, here is the part that confuses me), defines compensable time as time spent performing principle activities or such activities deemed “integral and indispensible” to the principle activities which the employee was hired to perform. So, then the issue seems to return to whether or not the “voluntary” activity should be classified as “work” because of its relevance to said principle activities.
    In a case resembling this, the employee was discharged for “working off the clock” but, only after having filed a charge to a gov agency relating to violation of the employee’s protected activity. In the past, the employer has never treated “voluntary” projects as a violation of the “off the clock” policy.

  2. Jean–

    This seems to raise a host of specific issues that go beyond wage and hour law, so I’m not sure that I can provide any specific answers. Would you send me a link to the court or agency decision you are referring to?

    Doug

  3. Hi Doug:
    Thanks for your article on volunteering for a non-profit. I have been a volunteer at a large non-profit medical center for several years. My assignment has been set in stone since I am expected to be at my assigned workplace for four specific hours each week. The person I relieve does the exact work I do but gets paid hourly and has full benefits. The person who relieves me also does the exact same work with pay and full benefits. Because of my former career, I am familiar with the rules surrounding volunteers and I’ve been very uncomfortable with my situation. If I cannot report to my assigned worplace, it creates a huge problem for management since they have to scramble to find another (usually paid) person to fill in for me.

    Do they owe me the same hourly wage they have paid to the actual employees for the at least three hundred hours I’ve donated? There are many volunteers throughout this institution who have the exact same expectations of them that the medical center has of me. Some sell in the gift shop (alongside paid employees) and others work in offices where a paid employee would typically work.

    Thank you for letting me know if I am right in identifying this as incorrect use of volunteers or if my donated time is correctly classified as volunteering…

    • Maggie,

      Unfortunately, I can’t give you legal advice about your situation, and I would need more facts to answer questions like these in any event.

      • Hi
        Please confirm me if a organizational sponsor me to work as volunteer it means they have to pay me or volunteer means no pay ??

        • I obviously can’t give you legal advice, but it would depend on your exact situation. It is possible to volunteer, of course, but many situations that are labeled “volunteer” are actually positions that should be paid. You would need to talk with your organization or an attorney about the specific details of your position.

  4. Doug, thanks so much for this. I am facing a very similar situation at my employer currently: an email was sent recently asking (hourly) store associates at a popular clothing retail store to “volunteer” their time to decorate a new display in the store. The email explicit says this is unpaid time, but that “food and refreshments will be provided…”

    Based on this article (& other non-exhaustive research I’ve done online), it very clearly seems like the employer cannot accept this volunteer work from its employees without compensating us.

    For further clarification (because I am going to send my managers an email today, either way), can you please link to the source where you found this exact information: “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.”

    Thanks!

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