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Volunteer services and FLSA compliance

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in Compensation and Benefits,Human Resources

Q. We are a for-profit health care facility licensed by the state of Texas. Can we use volunteers to perform services at our facility without compensation? For example,  the wife of one of our clients wants to volunteer her services in exchange for us waiving the daily-use fee we charge her husband. Are these volunteer services exempt from the wage-and-hour requirements of the Fair Labor Standards Act (FLSA)?

A. No. Her services would not be considered “volunteer” services and would be compensable under the FLSA. Volunteers may provide services that are exempt from the FLSA’s minimum wage/maximum hour requirements for civic, religious, charitable or humanitarian reasons. The services that a volunteer performs must not replace or impair employment opportunities of others by performing work that would otherwise be performed by regular employees. Moreover, the services must be provided without contemplation of pay, future employment or any other tangible benefit.

Under these facts, the U.S. Department of Labor would not consider the spouse’s services as volunteer services or exempt from the FLSA. Although the spouse’s motives might be altruistic, her primary motivation is to permit her husband to attend the facility without paying the daily-use fee. As such, her services constitute “work” and are not exempt from the FLSA.

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