Volunteer workers

Scope

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.

Regulatory citations

• None

Key definitions

• None

Summary of requirements

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:

• 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.

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:

• [T]he 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.

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.