Volunteers And Employment Law: What's The Verdict?

Volunteers are generally not considered employees and therefore are not covered by employment laws. However, there are exceptions, and depending on the situation, a volunteer may be considered an employee under the law and qualify for protection. For example, in a recent federal district court case in Arizona, a judge ruled that a volunteer school psychologist intern was a misclassified employee entitled to protection under the Americans With Disabilities Act. This ruling was based on the degree of control exerted by the school over the intern's work. The Fair Labor Standards Act also has specific requirements for volunteers, and it is important to note that volunteers cannot offer their services to for-profit private sector employers.

Volunteers at for-profit companies

Volunteering can be a great way for people to gain experience, help out a cause they care about, or simply occupy their time. However, when it comes to for-profit companies, the line between volunteering and employment can get blurry, and it's important to understand the legal implications.

In the United States, the Fair Labor Standards Act (FLSA) sets the guidelines for volunteer work. The FLSA makes it clear that individuals cannot volunteer their services to for-profit private sector employers. This means that if an individual is performing work that benefits a for-profit organisation, the label of "volunteer" does not exempt the company from its obligation to pay at least the minimum wage and overtime if applicable.

The Department of Labor (DOL) enforces the FLSA and has stated that "employees may not volunteer services to for-profit private sector employers." The courts have also agreed, establishing that simply calling someone a "volunteer" does not shield an employer from their obligation to pay wages.

There are, however, specific criteria that must be met for an individual to be considered a volunteer. If an individual volunteers for public service, religious, or humanitarian objectives, and without the expectation of compensation, they are generally not considered employees under the FLSA. Additionally, volunteers typically serve on a part-time basis and do not displace employees or perform work that regular employees would do.

It's important to note that state laws may differ, and some states, like California, have laws that protect volunteers from harassment. Additionally, individuals may have certain protections under federal non-discrimination laws, regardless of their employment status.

If you are a volunteer and believe you may be misclassified or experiencing unfair treatment, it is best to consult with an employment lawyer to understand your rights and options.

Volunteers in the public sector

Volunteers are a crucial aspect of many organisations, including those in the public sector. However, it's important to understand the laws around volunteering to ensure that legal and effective practices are maintained.

Volunteers vs. Employees

Volunteers are individuals who complete services for a public agency for charitable, humanitarian, or civic reasons. They perform these services without the promise, receipt, or expectation of compensation. Volunteers are only considered as such when they are providing services freely, and they are not volunteers if they are coerced or pressured into performing a task. Volunteers do not displace employees.

Employees, on the other hand, receive compensation for their services, and employers direct their tasks. Employees often have set hours or shifts, while volunteers can dedicate their free time as it is available. Employees may also receive benefits such as insurance plans or bonuses.

Federal Laws

The Fair Labor Standards Act (FLSA) outlines volunteer labor laws. Under this act, employees are prohibited from providing voluntary services to for-profit private enterprises. Employees may not perform voluntary work for any private-sector firm that is subject to the FLSA.

Volunteering in the Public Sector

Employees have more leeway to volunteer in the public sector. They are permitted to volunteer their services to their employer or the government agency they work for, as long as these activities are distinct from their regular job responsibilities. For example, an elementary school teacher may volunteer to drive a school bus to a baseball game but not offer to teach primary classes in their own school system.

Public sector employees can also volunteer for other civic, charitable, or humanitarian organisations, or even their own organisations, as long as three requirements are met:

• There is no promise, expectation, or receipt of compensation for the services rendered. It is acceptable to pay expenses, reasonable benefits, or a nominal fee.
• The employee offered their services freely and without coercion, direct or implied, from the employer.
• The individual is either not employed by the public agency they are performing services for, or they are not performing the same type of services that they are employed to do.

Volunteer Rights and Protections

Volunteers have fewer rights and less legal protection than paid staff, as relevant legislation such as the Equality Act 2010 and the Employment Rights Act 1996 do not apply to them. However, there have been rare cases where volunteers have successfully claimed such rights by demonstrating a legal employment relationship with their organisation.

Organisations may be held responsible for their volunteers' discriminatory actions under the Equality Act 2010. While volunteers are not employees, they are acting on behalf of the organisation. If a volunteer unlawfully discriminates against a client or service user, the organisation could be held legally responsible.

Additionally, the Volunteer Protection Act grants volunteers immunity from civil liabilities resulting from negligent acts or omissions while volunteering. This Act aims to increase volunteerism in communities by reducing potential risks for volunteers.

It is important to understand the distinction between volunteers and employees, as well as the relevant laws and regulations, to ensure legal compliance and protect both the organisation and the volunteers.

Volunteers and the Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act (FLSA) establishes a minimum wage, overtime pay, record-keeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. The FLSA defines "employ" very broadly, i.e., "to suffer or permit to work." However, the Supreme Court has clarified that the FLSA was not intended to classify all persons as employees who work for their advantage without any express or implied compensation agreement on the premises of another.

The FLSA does not apply to volunteers because they are not considered "employees" under the Act. Volunteers are individuals who donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, and without the contemplation of pay. Volunteers typically serve in roles that do not displace employees or perform work that would otherwise be done by employees.

For private for-profit employers, the FLSA's requirements are clear that there is no such thing as an employee providing "volunteer" time. The U.S. Department of Labor (USDOL) has stated that "employees may not volunteer services to for-profit private sector employers." Even if an individual is labelled as a "volunteer," this does not shield an employer from its FLSA obligation to pay the required wages if that individual performs work that benefits a for-profit organization.

On the other hand, individuals can generally volunteer services to public sector employers. The USDOL's FLSA regulations define a volunteer for a public agency as someone who "performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered." Congress, in amending the FLSA in 1985, intended to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to 'volunteer' their services.

In summary, the FLSA does not apply to volunteers because they are not considered employees. However, private for-profit employers cannot accept volunteer services, and public sector employers must ensure that volunteers are not coerced or pressured to work without pay and that they do not perform the same type of services for which they are employed.

Volunteers and harassment

Volunteers are an invaluable asset to many organisations, and their contributions are often driven by humanitarian or educational objectives. However, it is important to recognise that volunteers are susceptible to various forms of mistreatment, including harassment. Harassment of volunteers can manifest in different ways and have detrimental effects on both the individuals involved and the organisations they serve. Here are some essential considerations regarding volunteers and harassment:

Understanding Volunteer Harassment:

Volunteer harassment can take on various forms, including but not limited to verbal, physical, or sexual abuse. It can occur between volunteers themselves or between volunteers and paid staff members. Harassment may involve inappropriate comments, unwanted physical contact, intimidation, or any form of behaviour that creates a hostile or offensive environment for the volunteer. It is crucial for organisations to establish clear policies and guidelines that define what constitutes harassment and the consequences for such behaviour.

Preventative Measures:

To prevent volunteer harassment, organisations should implement comprehensive anti-harassment policies and training programs. These policies should outline the expected standards of conduct, the procedures for reporting harassment, and the disciplinary actions for violators. Training programs should educate volunteers and staff about the different forms of harassment, the importance of respect and consent, and the steps to take if they experience or witness harassment.

Reporting and Response Procedures:

Organisations should establish accessible and confidential reporting mechanisms for volunteers to report any incidents of harassment. This can include designated harassment officers, ombudsmen, or trusted staff members who are trained to handle such complaints. It is essential that volunteers feel safe and supported when reporting harassment and that their concerns are taken seriously. Organisations should also have a clear plan for responding to harassment allegations, including prompt investigations, appropriate disciplinary actions, and support services for affected individuals.

Legal Considerations:

While volunteers may not fall under the same legal protections as employees, organisations should still be mindful of potential legal implications. In some jurisdictions, anti-discrimination and workplace health and safety laws may extend to volunteers. Organisations should seek legal advice to understand their specific obligations and ensure their policies and procedures comply with relevant laws.

Impact on Volunteer Retention and Wellbeing:

Harassment can have severe consequences for volunteer retention and wellbeing. Volunteers who experience or witness harassment may feel discouraged, disheartened, or unsafe, leading to decreased participation and engagement. It is essential to address harassment promptly and effectively to maintain a positive and supportive environment for all volunteers.

In conclusion, while volunteers contribute their time and energy for the betterment of their communities, they should never have to endure harassment of any kind. Organisations that rely on the dedication of volunteers must prioritise creating safe, respectful, and supportive environments. By implementing preventative measures, establishing clear reporting procedures, and responding appropriately to incidents of harassment, organisations can foster a culture that values and protects their volunteers.

Volunteers and misclassification

In the United States, the Fair Labor Standards Act (FLSA) and state and local wage and hour laws strictly regulate the use of volunteers and interns. Volunteers will not be considered employees if they are volunteering for public service, religious or humanitarian objectives, without the expectation of compensation. They typically serve on a part-time basis, do not displace employees, and do not perform work that would otherwise be done by employees. The US Department of Labor (USDOL) has stated that employees of for-profit private sector employers may not volunteer services, and courts have agreed that simply calling someone a "volunteer" does not shield an employer from their obligation to pay wages.

In Ontario, Canada, the Employment Standards Act, 2000 (ESA) does not contain a statutory definition of "volunteer", but the ESA Policy and Interpretation Manual indicates that the ESA does not apply to volunteers, who are not considered "employees" under the Act. However, the Manual notes that it is necessary to determine whether someone is a "true volunteer" or an employee, and that the absence of payment is not determinative in this assessment. A leading case on volunteer misclassification in Ontario, Re Consumer Liability Discharge Corporation, outlined that a critical factor in determining whether there has been a true volunteering of services is the extent to which the person performing the services views the arrangement as being pursuant to their pursuit of a livelihood, and the extent to which the person receiving the services benefits.

To avoid misclassification, it is important for organizations to carefully assess whether individuals providing services are truly volunteers or if they should be considered employees under the applicable laws. Misclassifying employees can carry a steep price, including fines or charges of fraud, negative media attention, and damage to corporate reputations.

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