"I'll Do It for Free!"
By
John Thompson
(Education Labor Letter, November/December 2008)
Many people are moved to volunteer their time to schools for religious, humanitarian, charitable, or other public-service reasons. No one wants to discourage these impulses, of course, but a school must be careful not to set itself up for a dispute over whether such a person is actually an employee for purposes of the federal Fair Labor Standards Act (FLSA). Being wrong about this could result in substantial exposure for things like minimum-wage and overtime payments, penalties for child-labor violations, and other liability.
What Does it Mean to "Volunteer"?
First, don't assume that the U.S. Labor Department or the courts will necessarily see volunteering time to a public school or school system in the same light as volunteers for private schools. For one thing, the FLSA itself provides that individuals who volunteer to perform services for a "public agency" (a term that typically includes government-operated schools) are not FLSA employees under certain circumstances. The statute contains no comparable exception that is available to private schools.
Also, DOL has said that its policy in all but "rare" situations is to limit volunteer status to people who perform activities for non-profit entities. Thus, a for-profit school might anticipate a high level of scrutiny should the status of a volunteer ever be in question.
DOL has recognized that, even outside of the public sector, there can be situations in which individuals may donate their services of a charitable or public-service nature in a non-employee capacity if they do so without expecting or receiving pay or benefits, on a truly voluntary basis, and without any coercion or intimidation. This general principle can be misunderstood to mean that non-employee volunteer relationships are easily and reliably established. That is not so.
For one thing, DOL maintains that employees may not volunteer to do things for their employer which are the same as or are similar or related to their normal duties; instead, it says, this is compensable worktime. DOL takes the same view regarding time an employee spends even in 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.
Some Key Factors
Other considerations can affect whether a person's efforts look more like volunteerism on one hand versus employment on the other. Among them are whether the activities:
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are truly undertaken for the individual's own personal, humanitarian, charitable, religious, or public-service motives;
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are of a kind typically associated with volunteer work;
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are less than a full-time occupation for the individual;
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do not involve replacing regular employees or impairing employment opportunities;
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are subject only to "nominal" or "minimal" control by the recipient of the person's efforts; and
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tend to occur at times suiting the individual's own convenience, whether by schedule or otherwise.
Schools should thoroughly evaluate volunteer relationships so that they can assess any possible exposure. The risk is probably highest as to people whom a school otherwise employs, especially if their volunteerism involves things that are the same as or resemble what they are paid to do. The danger is also likely to be substantial if what a volunteer does 1) either is or formerly was done by employees; 2) consists of things like general office work or other tasks which are an integral part of the school's "core" functions; or 3) are not of the sort ordinarily seen as charity, humanitarianism, or public service.
Compensating volunteers also creates a much greater chance that employment will be found. This does not necessarily preclude things such as reimbursing volunteers for mileage or sometimes providing a free cafeteria lunch. But the peril increases as the kind and amount of direct or in-kind payments begin to take on the appearance of wages.
Another potential problem is exercising close control over volunteers. Obviously, a school will want to manage things to maintain standards of safety, security, and propriety appropriate to the environment. On the other hand, the relationship takes on employment characteristics when there are rigorous dress and grooming standards, extensive and ongoing training is required, the volunteer must follow a strict schedule, there is a job description with detailed duties, volunteers are subject to employee-like kinds of discipline, and so on. If school administration believes that a high degree of control is necessary, then this might be a sign that the activities are not suitable for a volunteer relationship.
Summing It Up
These illustrations show that it can often be hard to decide whether a particular relationship is one of volunteerism or FLSA employment. In many "gray area" situations, no single factor will permit you to know for sure which way this question will be resolved if there is a challenge. Practically speaking, the organization to which a person provides services bears the risk of being wrong in classifying the activities as non-compensable volunteer ones. This might seem unfair given the uncertainty, but it reflects a philosophy that the FLSA is interpreted broadly to ensure that its requirements reach everyone it is intended to protect.
Finally, different federal laws or the laws of a state or another jurisdiction might apply stricter standards in this area. You should carefully evaluate volunteer relationships under every applicable law that is implicated by those arrangements.
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