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6 ways to determine if you should pay ‘volunteers’

by on
in Human Resources

Issue: More for-profit organizations are using "volunteers" to help in their normal course of business, and they're taking a legal gamble.

Risk: Back pay and FLSA claims.

Action: Use the six-step test below to determine whether you should pay your volunteers.

Traditionally, volunteers donate their time to nonprofit groups, such as the Red Cross, without expecting to be paid. Such true volunteers aren't covered by wage and hour requirements of federal or state law.

But what about so-called "volunteers" at for-profit organizations? This is a relatively new legal puzzle and can pose risks for employers.

In general, exempt employees can volunteer to work without pay because their volunteer activities are considered an extension of the work for which they're ordinarily paid. Example: A school could allow its administrators or teachers to volunteer to help on field trips.

But nonexempt employees can't voluntarily perform tasks for which they're normally paid. Example: The school should pay its bus drivers if they volunteer to drive buses for weekend field trips.

To determine whether the Fair Labor Standards Act (FLSA) requires you to pay nonexempt workers who volunteer, ask yourself the following six questions. If you answer "No" to any of the questions, your organization is on the hook to pay the employees for time worked.

1. Will the employee perform the activity without expecting any form of pay or substantial benefit?

2. Are the services performed without employer coercion, threat of penalty or promise of benefits?

3. Are the activities performed predominantly for the employee's own benefit?

4. Is the activity conducted at times other than during normal working hours?

5. Is the time spent on the volunteer activity insignificant when compared with the employee's normal working hours?

6. If a volunteer were not available, would the position be one not normally filled by a paid staffer?

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