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How Non-Profits Can Use Volunteers the Right Way (and Keep Litigation at Bay)

In two prior posts (How to Use Interns the Right Way (and Keep Litigation at Bay) and The Fox Searchlight Ruling and What It Means for Unpaid Internships), we discussed a growing litigation trend on behalf of unpaid interns who are now claiming that they were really employees who should have been paid for their work.  The same risks that exist with the use of unpaid interns at for-profit and non-profit businesses also exist at non-profits that use unpaid volunteers, suggesting that it’s only a matter of time until the plaintiffs’ bar starts pursuing claims on behalf of unpaid volunteers.  To help ward off this threat, non-profits should get a jump on reviewing their volunteer programs for compliance under federal and state law.

Here, we’ll discuss the requirements for the volunteer exception to the wage requirements at non-profit institutions covered by the federal Fair Labor Standards Act (FLSA) and New York Labor Law.  (For anyone wondering, aside from a very narrow exemption for recreational/amusement events run by for-profit businesses in New York, there is no volunteer exception applicable to for-profit businesses.  If there was one, we’d discuss that exception here as well.)

Federal Law Requirements for Unpaid Volunteer Programs

The FLSA provides only a narrow volunteer exception for non-profits – specifically, for volunteers who volunteer for humanitarian purposes at private, non-profit food banks.

While the FLSA itself does not contain an exemption that generally excludes volunteers from the definition of employees at non-profit businesses, the U.S. Department of Labor’s (DOL) Wage and Hour Division has recognized that there are certain circumstances under which volunteer workers at non-profits are exempt from the wage requirements of the FLSA.  The DOL’s enforcement position has been that individuals may work for charitable, civic, religious, humanitarian, and similar non-profit enterprises and not be considered an employee under the FLSA if they volunteer freely, without expectation of compensation, and if they are engaging in activities that constitute “ordinary volunteerism.”

In determining whether a particular activity involves “ordinary volunteerism,” the DOL considers a variety of factors, including:

  • the nature of the entity receiving the services;
  • the receipt by the worker (or expectation thereof) of any benefits from the entity receiving the services;
  • whether the activity is less than a full-time occupation;
  • whether regular employees are displaced;
  • whether the services are offered freely without pressure or coercion; and
  • whether the services are of the kind typically associated with volunteer work.

However, if an individual volunteers in a part of a non-profit that engages in commercial business and serves the public (such as retail stores and other businesses), those workers won’t be deemed volunteers.  Rather, they’ll be considered employees subject to the minimum wage and overtime wage requirements of the FLSA.

Employees who volunteer for their employing organizations are also worthy of note.  An employee may volunteer his time for his employer so long as: the employer does not request, or otherwise direct, the employee to volunteer; the work the employee performs is not the same type that constitutes his normal work activity; and the work is performed outside the employee’s normal working hours.  In the absence of any of these factors, the volunteer work that the employee is performing is working time and must be paid.

New York State Law Requirements for Unpaid Volunteer Programs

In New York, a person may perform unpaid volunteer work in a non-profit institution that is set up and operates strictly for charitable, educational or religious purposes so long as the volunteer:

  • does not replace or augment staff to do the work of paid staff;
  • does not do anything but tasks traditionally reserved for volunteers;
  • is not required to work certain hours;
  • is not required to perform duties involuntarily;
  • is not under any contract to hire, express or implied, by any other person or business; and
  • is not paid for their services (except reimbursement for expenses).

As under federal law, a person who is a paid employee may volunteer for his employing organization so long as the type of work the employee does as a volunteer is completely different from the type of work he performs as an employee.