Volunteers under FLSA
coberg
6 Posts
When is a volunteer considered a volunteer and not in violation of FLSA. Can someone direct me to, or provide some guidelines, when it pertains to when a volunteer would be considered to be an employee.
Comments
For starters, I have this from a well known HR training organization:
"An individual who performs hours of service for a public agency for civic, charitable, humanitarian reasons, or religious, without promise, expectation, or receipt of compensation for services rendered, is considered to be a volunteer during such hours. An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer."
I also checked the following web address of US Code and found in bits and pieces what a volunteer is not: [url]http://www4.law.cornell.edu/uscode/29/203.html[/url].
And I found the following excerpt from the Florida Employment Law Letter (2/02)a fews weeks ago: "The law and the courts strictly limit employers' use of volunteers. If the "volunteer" is an employee, he/she cannot perform the same type of services he/she normally performs for the employer. For example, a clerical worker cannot volunteer time to perform clerical work for the company but may volunteer in a soup kitchen or other charitable activity supported by the employer. In addition, the volunteer services must not replace or impair employment opportunities of others and must be provided without contemplation of pay, future employment, or any other tangible benefit."
My organization is a private employer, a retirment community, about 500 employees and about 800 residents living onsite. Because of the nature of the services we provide, including a church whose staff are employees, and the fact that we have retirees living among us who often want to help, the volunteer question is a big question for us often. In fact, I just had an issue a few weeks ago. A volunteer (in a protected age class) was filling a vacant receptionist position for 2 weeks until a new (younger, not in a protected age class) candidate came on board. The "volunteer" was very experienced in office work and offered to pick up some secretarial duties that were not getting done because the position was vacant. The volunteer wanted to stay busy. The supervisor saw an opportunity to move some work without further delay and let the volunteer begin to pick up work tasks that were part of the position. That supervisor's supervisor decided to offer the volunteer some sort of compensation in honor of the volunteer's motivation. Fortunately, that boss asked me about compensation alternatives for volunteers. Our resolution was that we hired the volunteer retroactively, decided to take the hit on all the paperwork that should have been completed within her first 7 days of hire, and paid her for all of her time. The touchy part, of course, was that a valid offer had been extended to someone else to fill the position, and that someone else accepted the offer. There was no need for two employees in the same position, so the newly hired volunteer was let go after two weeks so the new candidate could assume the position. It was a mess, and I'm still not sure we're out of the woods. Fortunately, hiring the volunteer and giving her compensation kept her and us on good terms, and she hasn't challenged the termination yet.
Basically, my position is that if we are paying anyone to perform the same services, the worker is not a volunteer. If the "volunteer" is employed to perform different services elsewhere in the organization, the worker is not a volunteer. If anyone has committed any kind of compensation to the volunteer, the worker is not a volunteer. Unless the work to be done is a special project of very short duration, a few hours or less, we should probably pay someone to do it.
I'd be interested to know what some more seasoned HR professionals have to add.
In my "rabbit eared" personal copy of PART 785 of the FLSA, Subpart A. General consideration you'll find words to help you sort through this world of the FLSA.
1) FLSA requires that each employee, not specifically exempted, who is engaged in commerce, or in the production of goods for commerce, who is employed in an enterprise engaged in commerce, or in the production of goods for commerce, receive a specific minimum wage.
2) The key words here "engaged in commerce, production of goods for commerce, engaged in an enterprise engaged in commerce, or the production of goods" are important to assist you in seperating activity. When one is organized in the private business world and producing things for profit, there is never room in our world to permit "voluntary work on our behalf".
3) If your organization is service oriented then "voluntary work" can be allowed until, one begins to accomplish work and occupy space and time, which is serviced by regular employees and takes away from a regular employee the opportunity to in fact get paid for those hours and activities allowed of the "voluntary person".
4) "Candy strippers", "Red Cross volunteers", are two that come to mind very quickly. They typically work along side of other staffers who are paid and do physical work activities but are not professionals or specifically trained and skilled in the organizations core business day in and day out. They also do important task for the clients/customers to keep them happy and served while they wait the professionals.
5) By statutory definition the term "employ" includes "to suffer or permit to work", any physical and mental exertion on the behalf of the business by the individual is considered work for the employer and it must be compensated with no less than a minimum wage. As a private business there is no such thing as "volunteer work".
6) However, there are some training opportunies for students/interns that can be done on our behalf and we not be required to consider the person as an employee and pay the person to do physical work. Last summer we had a Vet School student that needed a hands on study in animal reproduction for a period of 120 direct contact hours for credit. She accomplished her objective, we got a copy of her research, we assisted the primary instructor in her training and development which entailed a singular path of work and study which otherwise would have been considered work: cleaning up our lab tools and equipment, laundry of personal clothing used as PPE, feeding of our animals, participating in the birthing process, supervising some of our farrowing employees while they were in the delivery process of new born "piglets". All of these things she had to learn and do inaccordance with our performance standards and production criteria. The baby "piglets" in her study were our animals and were in fact a part of our commerce activities. Any other person doing these same activities and methods would have required an enrollment process and payment for her 120 + hours of work required to complete her studies.
HOPE THIS HELPS! Now go out and order a rack of pork ribs, they will make you smarter, and it will be my payment for this teaching effort.
PORK
I'd really like to hear from yourself and other HR professionals to see if I'm just totally off base, perhaps misunderstand your statement, or am properly interpreting guidelines on volunteer status.
Thanks,
PORK
May we all have a Blessed day and a better week-end!
PORK
1) If in the business of profit making by commerce, there is no such thing as a "volunteer permitted to work without payment", except in the case of an "intern" for a short duration education oriented event in which the company has benefit of the result, but does not pay the student to use our physical resources to meet the student's need for support.
2) If in the business of service and not in commerce, then the organization must consider the nature of the work "physical labor" and who services this labor need. Professionals are exempt from the FLSA unless they are performing mundane physical labor task in a greater percent than 20% of the weekly number of hours spent in servicing clients. Over 20% of time starts to creep toward non-exempt criteria and the organization should be kicking in "volunteers" to do these things for the client and supervised by the professionals.
I ALWAYS LEAN TOWARD THE USE OF FLSA WHERE EVER POSSIBLE, THUS ELIMINATING THE ISSUE AND CONCERNS OF NOT PAYING OVERTIME AND MINIMUM WAGE. We are a farming operation and exempt from the demands of the FLSA; however, we are in business along side of all sorts of businesses who pay overtime. Therefore, we do also and always in accordance with the FLSA standards.
Sorry about the details, but that is just me, I to like to understand an issue completely, otherwise, I too am "STILLDAZED"!!!
PORK
In a hospital/medical setting, you often have tons of volunteers. Most of these folks perform tasks such as greeting patients, visiting with patients. You often see them working in gift shops, etc. (although that may be a fine line).
In our medical practice, we have a volunteer that sits with the switchboard operator. She usually just greets patients when they come in and directs them to where they need to go. This is not something we would have hired someone to do, but it is a nice touch. It also gives this lady something to do 2-3 mornings a week and a chance to interact with other individuals.