Once An Employee – Never A Volunteer

LR-Conference-People-Handshake-Close-upIt should be obvious that employees cannot be required to perform services for their employers as “volunteers.” This is properly seen by the Department of Labor as a ruse to avoid paying wages or overtime. By contrast, volunteers such as those who donate their services to public service, religious or humanitarian organizations, are not considered employees and do not expect to be paid.

However, the United States Department of Labor has a set of regulations (29 CFR 553.100 and the following) concerning volunteers which prevent employees from volunteering services even for non-profit organizations, and even when the employee is truly volunteering and is not being coerced by the organization.  Under the Department of Labor rules, an individual cannot sometimes be an employee and sometimes be a volunteer for the same organization; in other words, all hours of work by that  individual must be treated as paid time.

In practical terms, this means that any employee who has been allowed to perform services as a “volunteer” can later make an unpaid wage claim based upon his or her assignments both as an employee and as a volunteer, which in some cases can amount to hundreds of hours of unpaid time, including overtime.  To prevent such a risk, the employer has no choice but to prohibit employees from also participating in the organization as volunteers.

The purpose of these rules is benign; to prevent unscrupulous employers from coercing employees into working for free as ostensible volunteers.  But rigid enforcement of the rules can have an unfortunate effect on some charitable organizations.  Volunteer ambulance companies provide an example.  The ambulance companies typically have a small set of paid employees who are on duty for weekday shifts, when volunteers are at their day jobs.  The volunteers then provide staff on evenings and weekends.  The volunteers would be the obvious candidates to fill in as per diems when paid employees take vacation or personal time.  But even though they may be true volunteers whose volunteer shifts greatly outnumber their occasional paid shifts, under the Department of Labor regulations, the occasional paid shift would disqualify them from continuing as a volunteer.