Don’t Get Stuck Having To Pay For Volunteers This Holiday Season
Employment attorney Keith Clouse discusses situations where volunteers may be classified as “employees” under the FLSA
As the holiday season is upon us, many individuals will choose to volunteer their time and services for various organizations and events. However, employers and organizations accepting such volunteers must be careful - sometimes those volunteers may be considered “employees” under the Fair Labor Standards Act (FLSA), making the company or organization potentially liable to such volunteers for back-wages, overtime, and other penalties.
The FLSA is a federal law enacted to protect workers by establishing standards for minimum wage and overtime payments. Any individual who falls under the FLSA’s broad definition of “employee” must be paid according to those standards. Bona fide volunteers are exempt from the definition of employee, however, permissible unpaid volunteering is essentially limited to public employers, governmental agencies, and non-profits.
In situations where volunteering is permitted (i.e. governmental or non-profit organizations), the FLSA does not allow employees of such organization to perform any unpaid volunteer work which is similar or equivalent to their typical job responsibilities. Likewise, employers generally cannot request or require employees to volunteer during the employee’s normal working hours (even if such volunteer work is different than the employee’s typical duties). Under both of these situations, an employer must compensate the employee for his or her time according to the set FLSA minimum wage and overtime requirements. These rigid limitations on volunteer work by employees are meant to protect against abuse by employers who pressure employees into working overtime hours without compensation.
Although private sector volunteering is rarely permitted, the DOL does allow private employers to incentivize employees to volunteer at various non-profit events and organizations outside of normal work hours if such incentives are slight and the employer does not impose any control over the employee during the volunteer time.
Another concern for public, governmental, and non-profit organizations is unpaid volunteer time contributed by individuals who are not employees - which also has the potential to violate the FLSA. Volunteers may be considered employees for FLSA purposes if they receive some type of benefit or earning for those services. Courts apply the “economic realities test” to these types of situations to determine whether the individual’s status is that of “employee” or “volunteer.” The economic realities test looks at the level of control the organization or company is exercising over the volunteer. Under the test, courts have deemed benefits such as meal, transportation, and uniform costs to be categories of earnings which do not convert a bona fide volunteer’s status to that of an employee.
In conclusion, it is important for public employers and non-profit organizations to evaluate the relationships they have with their volunteers to ensure they sync up with the FLSA definitions and requirements. Erroneous classification of volunteers can lead to significant financial consequences for such organizations.
This article is presented by the Dallas employment lawyers at Clouse Dunn LLP. To speak with an employment attorney about an FLSA matter, send an email to firstname.lastname@example.org or call (214) 239-2705.
About Keith Clouse / Dallas Employment Lawyer Keith Clouse
Keith Clouse is a Texas employment law specialist with over 25 years of experience representing senior executives, business owners, physicians, and corporations in complex employment litigation, arbitration, and negotiations. Senior executives, physicians and other professionals consistently rely on Mr. Clouse for employment law expertise and advice on employment contracts, covenants not to compete, severance agreements, trade secret disputes, breach of fiduciary duty claims, and claims based on workplace discrimination, retaliation, and harassment. Source CDKLawyers.com
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