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And Another Thing...

As the summer approached you may be asked to accept a student as volunteer to help with the senior project, or someone interesting in building their resume over their summer break from college, or an unemployed person looking to stay current in their field.  While your first instinct is to jump at the chance to help, and get a few extra things done, be sure you have considered and prepared for the volunteer, especially if this is outside your normal practice. For those of you who regularly engage volunteers, this may be a good time to double check you practices and review your paperwork.  Our research and suggestions follow…

Research:

The Fair Labor Standards Act (FLSA) defines employment very broadly, i.e., "to suffer or permit to work." However, the Supreme Court has made it clear that the FLSA was not intended "to stamp all persons as employees who without any express or implied compensation agreement might work for their own advantage on the premises of another." In administering the FLSA, the Department of Labor follows this judicial guidance in the case of individuals serving as unpaid volunteers in various community services. Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.

Under the FLSA, employees may not volunteer services to for-profit private sector employers. On the other hand, in the vast majority of circumstances, individuals can volunteer services to public sector employers. When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community with but one exception - public sector employers may not allow their employees to volunteer, without compensation, additional time to do the same work for which they are employed.

There is no prohibition on anyone employed in the private sector from volunteering in any capacity or line of work in the public sector.

Public sector employees may volunteer to do different kinds of work in the jurisdiction in which they are employed, or volunteer to do similar work in different jurisdictions. For example, police officers can volunteer to do different work (non-law enforcement related) in city parks and schools, or can volunteer to perform law enforcement for a different jurisdiction than where they are employed

The Department of Labor's Regulations 29 C.F.R. §553.103, defines "same type of services" to mean similar or identical services. In general, the DOL would consider the duties and other factors contained in the definitions of occupations in the Dictionary of Occupational Titles in determining whether the volunteer activities constitute the "same type of services" as the employment activities.

Equally important is whether the volunteer service is closely related to the actual duties performed by or responsibilities assigned to the employee who "volunteers." (http://www.dol.gov/whd)

Under the EEOC,  volunteers usually are not protected "employees." However, an individual may be considered an employee of a particular entity if, as a result of volunteer service, s/he receives benefits such as a pension, group life insurance, workers' compensation, and access to professional certification, even if the benefits are provided by a third party. The benefits constitute "significant remuneration" rather than merely the "inconsequential incidents of an otherwise gratuitous relationship."  A volunteer may also be covered by the EEO statutes if the volunteer work is required for regular employment or regularly leads to regular employment with the same entity. In such situations, discrimination by the respondent operates to deny the charging party an employment opportunity. (www.eeoc.gov)

If volunteers are deemed to truly be volunteers, technically, OSHA requirements will not apply. However, an organization does need to be concerned about the general well being and safety of its volunteers. In addition to having a moral obligation to help make sure volunteers do not injure themselves, your organization may have potential liability exposure. As a good business practice and good faith effort, an organization should require that volunteers abide by its safety and training practices. (www.osha.gov)

Some Basic Recommendations:

Be sure your volunteer is truly a volunteer. 

Have volunteers sign a form acknowledging this is a volunteer activity, not paid.

Give volunteers a code of conduct – this should be distinctly different than your employee manual.

If hourly non-exempt workers are volunteering – be sure their volunteer offerings are distinctly different than their normal work duties.

Even though volunteers are not covered by the EEOC you should treat them fairly and with respect. Also you may want to check your funding contracts – as they may include clauses about adhering to non-discrimination laws.

Consider having volunteers sign a waiver releasing all rights to sue the organization or its members for injuries arising out of volunteering.

Review your liability coverage with your insurance carrier to insure you have addressed volunteer activity.

Feel free to call our office if you have additional questions.



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