Personnel Practices: Legal Issues Involving Volunteer Workers

Volunteer workers perform important functions for public and non-profit employers, and such work can provide valuable and rewarding experiences for volunteers. Although the national volunteerism rate has gone down slightly in recent years, according to the U.S. Bureau of Labor Statistics, about 64.5 million Americans volunteered through or for an organization at least once between September 2011 and September 2012. As they are not considered “employees,” volunteer workers may be exempt from wage and hour requirements like minimum wage, overtime pay, and recordkeeping provisions established under the federal Fair Labor Standards Act (FLSA) and Rhode Island Labor laws. A primary purpose of these requirements is to ensure that hourly employees are paid fairly and accurately, and to ensure that certain employees receive overtime pay for time worked over forty hours in a week. However, the FLSA and Rhode Island law provides exemptions from these requirements for volunteer workers, as set forth below.

• Under the federal Department of Labor’s rules, individuals who volunteer or donate their services, usually on a part-time basis, for charitable, religious, or humanitarian objectives, without contemplation of payment, are considered “volunteers” rather than “employees” of the religious, charitable or similar non-profit organizations that receive their service. Under the FLSA, only employees are subject to wage and hour provisions; accordingly, volunteer workers are exempt from wage and hour requirements.

• Individuals can also volunteer services to public sector employers. In enacting the FLSA, Congress made clear that people are allowed to volunteer their services to public agencies and their community. However, public sector employers may not allow their employees to volunteer additional time to do the same work for which they are employed without compensation. For example, public employers may not require or permit their employees to perform overtime work without compensation under the guise of volunteerism.

• Private sector employers can encourage employees to volunteer their time to public or charitable organizations outside of normal working hours. In fact, employer-sponsored volunteer programs can be a powerful way to support civic and charitable organizations, and engaging employees in this process can improve morale. However, time spent in work for public or charitable purposes at the employer’s request; while under the employer’s direction or control; or while the employee is required to be on the premises, is considered working time, and thus, the employer must compensate the employee in accordance with fair labor standards laws. For example, when an employer sponsors a “volunteer” opportunity on-site during working hours, the employer may not withhold participating employees’ pay during time spent volunteering.

• Under the FLSA, individuals may not volunteer services to for-profit private sector employers. The FLSA exemption for volunteer workers applies only to public sector or charitable employers. Rather, such putative volunteers of private sector employers would likely be considered employees entitled to compensation under the Act.

In order to ensure that volunteers are not considered “employees” subject to federal and state wage and hour requirements, employers should be aware of the applicable provisions of the FLSA and applicable Rhode Island law. The Rhode Island Department of Labor and Training (RIDLT) has published a wage and hour guide, a document that includes descriptions and interpretations of Rhode Island wage and hour laws. In light of the somewhat onerous requirements under the FLSA and established by RIDLT, employers should maintain accurate records reflecting their fair workplace practices, and always consult a professional in case of wage and hour questions.




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