Are volunteers entitled to overtime?

Feb 24, 2015

Volunteers play positive and important roles in our community. But, some volunteers can also occasionally pose a legal risk. In 2014, a school district found this out the hard way when its volunteer golf coach of fifteen years sued it for overtime compensation. The Fair Labor Standards Act (FLSA) governs overtime pay for employees and states that employees working more than forty hours a week get overtime. In this case (out of Virginia), the court ruled that a public-school-security employee, who also voluntarily coached high school golf, was not owed overtime pay for the time spent coaching due to his status as a “volunteer” as opposed to “employee.”

Employers that retain volunteers need to know how the FLSA does or does not affect these people. School districts are not alone—religious, charitable, and other nonprofit organizations also need to know where to draw the line.

In the Virginia case, the court found the coach was a volunteer because he was not doing the same type of work as required by his regular position as a security assistant. The court interpreted the federal statute exempting a person from FLSA coverage if: (i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered and (ii) such services are not the same type of services which the individual is employed to perform for such public agency.

The court emphasized the following facts: the employee was never coerced or pressured into becoming a coach; he was free to relinquish his role as coach at any time without fear that doing so would have any impact on his full-time employment; he was motivated by humanitarian and charitable instincts; and the stipend paid was nominal.

Accordingly, to ensure that your workers really are “volunteers” and not employees, bear in mind the FLSA’s definition and the above case. And, remember, employees are not “volunteers” if they are merely doing their regular jobs after hours without pay. Private employees, for example, cannot “volunteer” time to the private company at which they already work for pay. According to several recent, high-profile cases, for-profit businesses that use summer interns may also have to pay at least the minimum wage and overtime, even if the students receive college credit. (Ironically, Congress exempted itself from the FLSA and is not required to pay minimum wage or overtime for interns!)

Also, while the law expressly permits payment of a “nominal” amount to the volunteer, many employment lawyers would advise you not to be tempted to pay your volunteers “a little something” for helping out. Paying a volunteer for his or her efforts is the fastest way to transform him or her into an employee, subjecting you to the requirements of the FLSA, workers’ compensation insurance, and other federal and state laws. Rather, you could instead, reimburse volunteers for their expenses and give occasional, non-monetary gifts. For example, consider a luncheon in honor of volunteers, or a plaque or other small token of appreciation. Volunteers have many different motivations, but almost all appreciate recognition of their efforts and contribution to your organization, and are not interested in a lawsuit against you. If you have questions about the FLSA or other employment law matters, please contact Wilford H. Stone at wstone@lynchdallas.com or 319-365-9101.



Category: Employment Law

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