Employees as Volunteers

By Lehr Middlebrooks Vreeland & Thompson, P.C.

March 27, 2019

Employer engagement in community and civic matters often leads to questions about whether employee participation is considered job-related and thus compensable. On March 14, 2019, the United States Department of Labor, Wage and Hour Division issued an opinion letter on this subject, which is instructive to employers across all sectors.

The fact situation in the opinion letter involved an employer’s community service program in which employees participated during the course of the year. If employees participated during their regularly-scheduled hours, they were compensated. When they participated outside of their normal work hours, they were not compensated. At the end of the year, those employees whose volunteer participation was considered by the employer to have the greatest impact received a bonus, based largely on the number of hours the employee volunteered. Employees were not required to participate as volunteers during working time or outside of work.

In determining that the employer’s volunteer program was permissible without compensation owed for hours outside of working time, DOL stated that “the FLSA recognizes he generosity and public benefits of volunteering and allows people to freely volunteer time for religious, charitable, civic, humanitarian, or similar public services.” DOL added that “of course, the volunteer must offer his or her services ‘freely and without coercion or under pressure’ direct or implied from an employer.” DOL stated:

1. Employers may ask employees to participate in a volunteer program, provided “there are no ramifications if an employee chooses not to participate.”
2. Compensating employees who volunteer during their work hours does not render volunteering during non-work hours as compensable time.
3. Employers may use the amount of time an employee spends on volunteering in determining a bonus, provided that the volunteer activity is optional, failure to volunteer does not have an adverse effect on the employee (such as pay or promotions), and the employee is not guaranteed compensation or a bonus if he or she participates as a volunteer.

A separate issue arises as to whether time spent as a volunteer would be considered compensable if an employee were injured. The general principle is that if an employee is truly a volunteer, such as DOL described in the opinion letter, then an injury in the course of volunteering is not a job-related injury and workers’ comp would not apply. This interpretation would vary from state to state. Overall, we recommend that employers establish in writing that volunteering for the employer’s community or charitable activities is not required, participation or lack of participation would not affect an employee’s job opportunities, participation during non-work time will not count as hours worked, and an injury to, from, or during the volunteer event will not be considered job-related.