“VOLUNTEER” EMPLOYMENT – A MESSAGE TO NON-PROFIT EMPLOYERS

Gregory S. Spicer

Many non-profit organizations (NPO) depend on unpaid volunteers to carry out their charitable, educational or religious programs. But whether or not the individuals providing these services are “volunteers” as defined by the Fair Labor Standards Act (FLSA) is not as clear as one might think. In order for an individual to qualify as a volunteer, and thus continue to provide services without compensation, certain conditions must be met.

For NPOs that are “covered enterprises” under the FLSA, an individual’s volunteer status depends upon the economic reality of the relationship between the NPO and the individual – that is, whether the individual has truly volunteered his or her services. In determining the economic reality, the Department of Labor may consider many factors, including whether the services are of the kind typically associated with volunteer work, whether the individual receives benefits from the NPO for his or her services, and whether the activity is a full or part-time occupation. The economic reality standard applies even where the individual does not subjectively believe or intend to be covered by the FLSA. Indeed, the Supreme Court has determined individuals to be “employees” even where they opposed the payment of wages and testified that they worked solely for religious purposes.

NPOs must also take note that whether or not they are subject to enterprise coverage, individuals whose work regularly involves interstate commerce may still be covered by the FLSA.

In addition to the Act itself, the Department of Labor has promulgated several regulations regarding volunteers for public agencies. These regulations:

  • (1) Define “volunteer” as an “individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered”;
  • (2) Allow volunteers to be paid expenses, reasonable benefits and/or a nominal fee, without losing volunteer status; and
  • (3) Exclude from volunteer status individuals who “volunteer” additional time to provide the same type of services that they ordinarily provide to the public agency.

Although these regulations are not directly applicable to private organizations, they are instructive as they illustrate Congress’ intent to prevent individuals from providing work for inadequate wages, and are likely to be considered in determining the economic reality of the volunteer status under the FLSA.

CONCLUSION

Because of the U.S. Department of Labor’s increased scrutiny on volunteer work, every NPO employer should be aware of the foregoing federal rules as well as the state wage and hour laws, which are enforced by the state’s Department of Labor and whose investigators may have more rigid approaches than their federal counterparts.

To contact a Clifton Budd & DeMaria attorney regarding this subject please email labor@cbdm.com.

This Update is not intended to be legal advice, but rather is intended to inform the reader of problem areas and recent developments in labor and employment law. If legal advice is required concerning a particular matter, your attorney should be consulted.