Volunteer Status Under the FLSA

Barkan Meizlish , May 14, 2015

The Fair Labor Standards Act (“FLSA”) provides that under circumstances, individuals who volunteer at not-for-profit organizations may be exempt from wage and hour requirements.  However, people may be surprised to find that although they consider themselves volunteers, the FLSA may require them to be treated as employees and thus entitled to compensation.  Simply agreeing to work for nothing does not define employee versus volunteer status—courts take into account the “totality of the circumstances” when determining whether an individual is a volunteer or employee.

The regulations interpreting the FLSA define “volunteer” as “[a]n individual 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.” 29 C.F.R. § 553.101.  Services provided by individuals under this definition must be done without pressure (implied or direct) from an employer.  Additionally, an individual cannot be considered a volunteer if employed by the same agency to provide the same services that the individual performs as a volunteer.  In determining whether a particular activity constitutes services of this nature, or “ordinary volunteerism,” as described by the Supreme Court in Tony and Susan Alamo Found., 471 U.S. 290, 303 (1984), several factors are considered:   (1) the nature of the entity receiving the services, (2) any benefits (or expectation of benefits) received; (3) whether the services performed are the typically associated with volunteer work; (4) whether the services are freely offered without any coercion or pressure; (5) whether the activity is less than a full-time occupation; and (6) whether regular employees are displaced.

Source:  James R. Hays & Shira Forman, Is That Volunteer Really An Employee?, THE METROPOLITAN CORPORATE COUNSEL (Oct. 16, 2014), http://www.metrocorpcounsel.com/articles/30475/volunteer-really-employee

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