• An individual may perform unpaid volunteer activities for an organization or company if they are not an employee of that organization.
• If an employer/employee relationship exists in any way, an individual cannot volunteer additional unpaid time for their employer unless a number of conditions are met including that the volunteer work should take place outside of normal working hours and should be a distinctly different type of work than the employee normally performs.
• Volunteers are limited to charitable or civic organizations so if a private company expects employees to perform volunteer services (even for a civic or charitable organization) then the time must be paid.

A question that often arises and has been addressed in multiple opinion letters by the federal Wage and Hour Division, is whether employees can “volunteer” to perform work for their employer without compensation. In almost every case, the answer is no.

While the law does recognize that individuals may choose to volunteer their time for civic or charitable organizations, the Wage and Hour Division (as well as the Supreme Court) have expressed concern over allowing an employee (even an employee of a non-profit organization) to perform work without compensation. Specifically, the concern is that an employee could be coerced or required to volunteer additional time without pay, which would violate the intent of the Fair Labor Standards Act (FLSA).

One of the best summaries of this concern appeared in an opinion letter (FLSA 2001-18), which responded to a question about nurses volunteering their time for various community services. The response from the Division included the following:

• It has been determined, however, that employees subject to the Act may not choose to “decline” the protections of the Act by performing activities for their employer that the employer and employees have characterized as “volunteer” services. Tony and Susan Alamo Foundation, supra, at 302. In that case, the Supreme Court was concerned that unless employees were barred on a general basis from “volunteering” to perform any services for their employers there would be potential for the coercion of uncompensated services, to the detriment of the purposes of the Act. Id. The Court did not wish to allow the prohibition against employees waiving their protections under the Act to be circumvented by characterizing work as “volunteer” services, citing Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981) and Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945). Accordingly, where employees of a non-profit organization perform “volunteer” work of the same type that constitutes their normal work activity, we have uniformly taken the position that the “volunteer” work is compensable. This concern extends to both non-profit and for-profit employers.

As the above letter suggests, an individual may perform unpaid volunteer activities for an organization or company if they are not an employee of that organization. For example, a non-profit organization can accept volunteer services from non-employees without compensating them for their time and labor.

However, if an employer/employee relationship exists in any way, an individual cannot volunteer additional unpaid time for their employer unless a number of conditions are met. Primarily, the volunteer work should take place outside of normal working hours and should be a distinctly different type of work than the employee normally performs. The opinion letter previously referenced describes this evaluation as follows:

• ... the Department considers a variety of factors, including the nature of the entity receiving the services, the receipt by the worker (or expectation thereof) of any benefits from those for whom the services are performed, whether the activity is less than a full-time occupation, whether regular employees are displaced, whether the services are offered freely without pressure or coercion, and whether the services are of the kind typically associated with volunteer work.

If an individual who is already an employee of the organization chooses to volunteer for that organization, all of the above criteria should be satisfied. Another opinion letter (FLSA2005-33) clarifies that volunteer activities should be outside normal hours and should be of a different capacity than the usual job duties. As noted, the Department of Labor (DOL) will also consider the number of hours, whether the volunteer work displaces regular employees, and whether the services are typically associated with volunteer work. If all these criteria are met, an individual who is already an employee of an organization could perform unpaid volunteer services for that same employer.

For profit or non-profit

Obviously, volunteers are limited to charitable or civic organizations, since a “for profit” employer cannot have individuals performing duties to benefit the organization without compensation. As discussed in the Hours Worked topic, if a private company expects employees to perform volunteer services (even for a civic or charitable organization) then the time must be paid. As the name suggests, volunteer activities must be voluntary.

The Fair Labor Standards Act does address volunteers in the regulations at 29 CFR Part 553, which defines a 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.” The regulation goes on to say that while the Congress did not intend to discourage bona fide volunteers, it did want to prevent abuse or manipulation of the minimum wage and overtime requirements that might result if individuals were pressured or coerced into performing “volunteer” work.