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A question that often comes up, and has been addressed in many Opinion Letters by the federal Wage & Hour Division, is whether employees can “volunteer” to perform work for their employer without compensation. If the employer is a for-profit organization, the answer is no. For a non-profit entity, the employee may volunteer in limited circumstances.
While the law does recognize that individuals may choose to volunteer their time for civic or charitable organizations, the Wage & Hour Division (and 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 agency is concerned that an employee might be required to “volunteer” additional time without pay, which would violate the intent of the Fair Labor Standards Act.
One of the best summaries of the volunteer work 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:
When can someone be considered a “volunteer?” Volunteer activities are allowed if an individual is performing services for an organization and is not also an employee of that organization. However, once an employer/employee relationship exists, individuals cannot volunteer additional unpaid time for their employer unless a number of conditions are met. The Opinion Letter above describes the evaluation as follows:
Situation example. For example, a non-profit organization can accept volunteer services without compensating for the time. However, if an individual who is already an employee of the organization chooses the volunteer, all of the above criteria should be satisfied. Another Opinion Letter (FLSA2005-33) indicates that the volunteer activities should be outside normal hours, and should be of a different capacity than the usual job duties. As noted, the 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 of these criteria are met, an individual who is already an employee of an organization could perform unpaid volunteer services for that same employer.