Non-Profit Employees May Also do Volunteer Work for Their Employers

The Department of Labor recently issued a guidance letter on non-profit employees who choose to volunteer their time to their employers. Non-profit employees, whether they are exempt or non-exempt, may choose to volunteer their services to their non-profit employer.

However, the Department of Labor made clear that certain requirements must be met in order for a non-profit employee to be considered a true volunteer. First, the employees’ volunteer services should be completely voluntarily, meaning it is given “freely and without coercion.” Second, the volunteer services must be offered “with no contemplation of pay for the volunteer services rendered.” Finally, the “volunteer services are not the same type of services [the employer]...employ[s] the employees to perform.” If the non-profit employee’s services does not meet any of the three aforementioned requirements, the employee is performing additional services and the time would be hours worked and compensable under the federal Fair Labor Standards Act.

Clearly the first two requirements of the employee choosing to provide his or her services freely, without coercion, and without expectation of compensation is easy to understand. Most employers and employees realize this is the most basic requirements for work to be truly voluntarily. However, the third requirement regarding the substance of the work is where many employers and employees may find themselves sitting in some gray area. The Department of Labor makes clear that “a nonprofit employee cannot be both a paid employee and a non-paid volunteer while performing the same type of work for the same employer.” The phrase “same type of work or services” has been defined as meaning “similar or identical services.”

For example, if the employee is paid to drive buses for high school students going to school, the employee cannot “volunteer” to drive a bus for high school students to a football game. That type of work is too similar and would be considered part of that employee’s scope of work. However, if the bus driver chose to volunteer his or her services to make posters for a football game, such work would be considered sufficiently different to his or her work-related services of driving a bus. Making posters for a football game would be considered totally different from the employee’s normal job duties.

This new guidance is important for employers since it reminds employers that simply labeling work as “volunteer work” does not make it so. There are three specific requirements that must be met before the work can be considered true “volunteer work.” If the three requirements are not met, the non-exempt employee’s “volunteer hours” will be counted as work hours and require the employer to provide additional compensation. In such cases, the employer may be subject to significant liability for back wages and overtime, liquidated damages, attorneys’s fees, etc. Likewise, if the three requirements are not met for exempt employees, the “volunteer hours” will simply be counted as hours worked as long as the exempt employee meets all the other requirements for exemption.