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Can You Accept Volunteer Labor?

The Fair Labor Standards Act (FLSA) is seemingly straightforward on the matter of pay: employers must pay employees for all hours worked. But who is an employee? And can employers accept free work?

According to one of the Department of Labor (DOL) fact sheets about the FLSA, “by statutory definition the term ‘employ’ includes ‘to suffer or permit to work.’” In practical terms, this means that anyone who is knowingly allowed to work (or keep working beyond the regular hours) needs to be paid for this time.

But are there exceptions to this? Can employers Accept Volunteer Labor if someone offers to keep working after clocking out for the day? Can an employer hire an unpaid intern? Are there other exceptions? Let’s take a quick look.

Most of The Time, the Answer Is No: For-Profit Private Employers Cannot Accept Free Labor

Most for-profit organizations cannot accept volunteer, unpaid labor without running afoul of the FLSA. For example:

  • Employers cannot knowingly allow (or ask) employees to work off the clock.
  • Even interns must be paid in most circumstances—if they’re performing tasks that benefit the employer (as opposed to just learning and observing), they’re completing work that is entitled to pay. This is true even if the intern offers his or her services for free just to get started with the organization.
  • Any time an employer requests or requires (or allows) an employee to perform a task— even if it’s something unrelated to his or her regular duties, such as helping run the employer’s booth at an industry event— that employee should be paid for the time. Salaried employees, of course, are already paid for the job, so in those scenarios it just needs to be clear that the additional tasks are a requirement for the job; for hourly employees, they should be paid for all of the hours involved in such activities, even if the person offers to complete the task voluntarily.
  • Employees who voluntarily work through their lunch or other breaks must be paid for that time, even if they had clocked out.

There are Only a Few Instances Where Volunteer Labor Is Allowed

Typically, the only time Volunteer Labor is allowed is when the organization is not a for-profit, private organization. Here are a couple examples of the rare times volunteer (unpaid) labor is allowed:

  • Nonprofit organizations, such as churches, community service organizations, charities, etc., may usually accept volunteer labor as long as there is no implication that the services will be paid.
  • In many public companies, volunteers can assist, within limitations. For example, parents may volunteer to help (without compensation) with tasks for their child’s public school, even if these tasks would otherwise be done by a school employee, as long as the individual volunteering is not already a school employee.
    • There are some areas that are more gray, such as whether or not a school employee can volunteer time for tasks completely unrelated to his or her main job. Sometimes this is allowed, if there is enough separation from the primary role. Proceed with caution and get clarification before proceeding with such a scenario.

Generally speaking, a for-profit, private organization is normally not allowed to accept volunteer labor. But many nonprofit and/or public organizations can. Even in those situations, it should be clear that there is no employment relationship, and the person is truly volunteering without any form of coercion to complete the tasks. The situation is more complex for nonprofit and public employers because there are a lot of factors that must be taken into account.

If you are in a position to accept volunteer labor, be careful before offering nominal rewards for it. If you provide compensation for such activities (even noncash items), that could be construed as the same as compensating an employee and the DOL may be likely to view the individual as such as a result.

Last but not least, remember that employees can’t just voluntarily waive their FLSA rights; just because an employee says he or she doesn’t mind does not make it OK to not abide by the FLSA regulations. You may also be violating state or local labor laws as well, and you could be subject to stiff penalties.

The post Can You Accept Volunteer Labor? appeared first on HR Daily Advisor.

This post first appeared on HR Daily Advisor, please read the originial post: here

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Can You Accept Volunteer Labor?


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