What About the Volunteers?

 It seems like these days we hear all about interns – are they properly classified? Do we have to pay them? But what about volunteers?

If a company or nonprofit has volunteers, it MUST evaluate whether it is properly classifying them (i.e., whether they should be paying them).

Ok, so where do we start? As a general rule, employees may not volunteer services to for-profit, private sector employers. So, if your employee comes to you and says, “I’d love to volunteer at the IT help desk on the weekends. I just love it in that area. I don’t even have to be paid! I will agree, in writing, that I am just a volunteer!” No. They can’t. Therefore, you can’t.

There are three exceptions to the general rule: volunteers for (1) state or local government agencies; (2) private non-profit food banks; and (3) religious, charitable, civic, or humanitarian purposes related to non-profit organizations. Breaking down those three exceptions, it basically means that:

(1) The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if—

(a) 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

(b) such services are not the same type of services which the individual is employed to perform for such public agency.

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.

(2) Then there’s the food bank exception: The term “employee” does not include individuals who volunteer their services solely for humanitarian purposes to private non-profit food banks even if they receive groceries from the food banks.

(3) Last, is the non-profit exception. An individual who performs work (usually on a part-time basis) may be considered a volunteer, provided that individual does not displace employees; performs work for public service, religious, or humanitarian reasons; and such work is performed without promise, expectation, or receipt of compensation for services rendered.

There you have it. A brief digression into the world of volunteers.

Read more articles on employment law issues at Employment and the Law, a blog by Ashley Kasarjian.

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