Tuesday, April 10, 2012

Volunteers May Be Entitled to Pay Under the Fair Labor Standards Act

Not too long ago a big stir was made surrounding volunteers and whether they are entitled to pay under the Fair Labor Standards Act (FLSA).  It was a fairly controversial issue because for years and years the term "volunteer" came with the assumption that the work was not compensated and volunteers were doing just that: volunteering their time.  However, when volunteers are taken advantage of, that is when the litigation begins and we have since been provided with guidance on when pay is called for under the FLSA in certain volunteering situations. 


Some "volunteer" activities can be employment under the FLSA thus warranting compensation and wages.  This is true even if a volunteer isn't employed by the entity they are volunteering for, if the volunteering is labeled "charitable" or for "public service," and even if the volunteering is for a non-profit organization.  "Interns" are not paid wages under the FLSA but certain types of "volunteers" may be under the FLSA.



The FLSA itself excludes individuals who volunteer to perform services under certain circumstances for a state, a political subdivision of a state, or an interstate governmental agency. These exceptions explain why, in the proper situations, volunteers at public schools and in some other settings are not viewed as being engaged in FLSA employment.
The Department of Labor (DOL), the governmental agency that enforces the FLSA, has issued guidance on the issue of volunteering and compensation and has held that individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.  However, the DOL has held that employees may not volunteer services to for-profit private sector employers.
The DOL’s position also holds that individuals may not “volunteer” to do things for their employer which are the same as or are similar or related to their normal work duties.   This is considered compensable FLSA work time. The DOL might also take the same view regarding time an employee spends even in arguably dissimilar services of a public or charitable nature, if this occurs at the employer’s request, under its direction or control, or during the employee’s normal working hours.  That is, if it works like a duck and quacks like an employee, it gets paid under the FLSA!

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