Legal Updates
Are "Volunteers" Entitled To Wages And Overtime Pay?
The United States Department of Labor (“DOL”) has issued four opinion letters providing guidance on when workers may properly be classified as “volunteers” and hence not subject to the federal minimum wage and overtime laws.
In sum, if volunteers are not pressured into volunteer service, are not asked to volunteer during their normal working hours, and are not asked to perform services similar to their regular duties, then they will not be entitled to be paid for their “volunteer” time. (Note: If they are entitled to pay for “volunteer” time, then those volunteer hours would constitute hours worked for purposes of calculating overtime pay.)
After-Hours Volunteers at Employer-Sponsored Events
The first Opinion Letter concluded that an employer may lawfully permit employees to volunteer without pay at after-hours employer-sponsored events, provided that the general rule is followed.
The specific inquiry concerned employees of a university who agreed to volunteer at the university’s annual road races by distributing water to runners, staffing a refreshment table at the finish line, and assisting with various administrative tasks.
The DOL clarified that the university lawfully may treat the employees as unpaid volunteers relative to its after-hours event, as long as the employees (i) volunteered freely, (ii) participated as volunteers after their normal working hours, and (iii) performed services that were not similar to their regular work duties. (Conversely, the university would have to pay minimum wages and overtime to any employees who were required to volunteer, who provided volunteer services during their normal working hours or who provided volunteer services similar to their regular duties.)
Public School Coaches and Advisors
The second Opinion Letter concluded that a public school district may lawfully pay a stipend to a custodial employee for time spent volunteering as a coach.
The employee, a non-exempt school custodian, was paid a stipend of $3,675 for coaching the varsity track team on a volunteer basis. The school district wanted to know if this arrangement would be viewed as a sham to evade paying minimum wages and overtime for time spent on coaching.
The DOL determined that, if certain conditions were satisfied, the custodian could be properly treated as a volunteer coach, and the stipend would not constitute an impermissible evasion of the wage and hour laws.
The DOL explained that employees of a public agency may volunteer to perform civic, charitable or humanitarian services for the same public agency on a stipend basis, provided that:
(1) the arrangement is without promise, expectation or receipt of compensation for services rendered, except that the volunteer can be paid expenses, reasonable benefits or a nominal fee;
(2) the services are offered freely and without pressure or coercion from the employer; and
(3) the volunteer is not otherwise employed by the same public agency to perform the same type of services for which the individual proposes to volunteer.
With respect to element (1), the DOL said that stipends will presumptively be treated as “nominal fees,” as opposed to “substitutes for compensation,” if they are within 20 percent of what the employer would otherwise pay for same services and if the stipend is not “tied to productivity.” Assuming that the custodian freely volunteered for the coaching job, which clearly was distinct from his custodial position, then elements (2) and (3) would also be satisfied.
Volunteer Sheriff’s Deputies Who Sporadically Serve as Part-Time Employees
The third Opinion Letter concluded that a County Sheriff could permit volunteer reserve deputies to work as part-time paid employees one week per year without otherwise impairing their status as bona fide volunteers for purposes of the wage and hour laws.
Specifically, a County Sheriff wanted to permit his volunteer reserve deputies to perform paid security services for one week at an annual state fair. While performing these services, the deputies would be treated as temporary part-time employees. When the fair ended, the deputies’ part-time employment would be terminated, and the deputies would be returned to voluntary reserve status. The question was whether the deputies, once deployed as part-time employees, could lawfully be returned to volunteer status to perform their regular volunteer services during the balance of the year.
The DOL determined that the proposed arrangement would be lawful under a regulation providing that where “State or local government employees, solely at their option, work occasionally or sporadically on a part-time basis for the same public agency in a different capacity from their regular employment, the hours worked in the different jobs shall not be combined for purposes of determining overtime liability under the Act.”
According to the DOL, “employing volunteer reserve deputies for a period of one week a year to perform security services qualifies as occasional or sporadic in nature and duration.” Thus, the DOL concluded that this arrangement would not impair the deputies’ volunteer status, as long as the deputies “were not converted unilaterally by the employer to volunteer status in order to avoid the minimum wage provisions or overtime protection of the FLSA.”
Volunteers Paid Their Regular Salaries by Their Regular Employers
The fourth Opinion Letter concluded that when employers permit employees to spend a modest amount of their paid working time providing volunteer services to a non-profit religious organization, the religious organization did not have an employer-employee relationship with the volunteers, and thus did not have to pay additional wages to these individuals.
The employees, who had regular paying jobs, volunteered to be “Peer Reviewers” for a non-profit religious organization. As volunteer Peer Reviewers, they conducted accreditation evaluations of entities that wished to obtain or retain membership in the religious organization. The regular employers of these individuals permitted them to volunteer for the religious organization during normal working hours and paid them their regular salaries.
The DOL assured the religious organization that the Peer Reviewers’ receipt of their regular salaries from their regular employers did not jeopardize their volunteer status or otherwise convert them into employees of the religious organization. According to the DOL, the Peer Reviewers served the religious organization “without promise or expectation of compensation” solely to satisfy a “personal purpose or pleasure.” As no employee-employer relationship existed between these individuals and the religious organization they served as volunteers, the wage and hour laws did not apply.
Conclusion
All employers should be familiar with the laws applicable to volunteers. Please contact us for additional information with respect to volunteer laws in the states in which your organization has employees and/or volunteers.
