The U.S. Department of Labor’s Wage and Hour Division (“WHD”) recently issued an opinion letter addressing when employees of nonprofit organizations may volunteer their time to the same organizations that employ them.
The nonprofit organization breeds and trains service dogs and employs veterinarians, service-dog trainers, and directors (whose role is to supervise the trainers). Some of these employees wanted to volunteer outside working hours as “juvenile canine caretakers,” taking puppies into their homes and providing routine care, early training, and socialization before the dogs began specialized training at the organization’s facilities. The organization represented that participation was entirely voluntary, was not a job requirement or employment benefit, and would not interfere with the employees’ regular responsibilities.
WHD explained that nonprofit employees may volunteer for their own employer, but several important limitations apply. The employee must volunteer freely and without direct or implied coercion, must have no expectation of compensation, and cannot volunteer to perform the same or similar type of services the employee is paid to perform. Whether work is the same or similar depends on the particular facts, including how closely the volunteer activities relate to the employee’s regular duties.
WHD offered examples particularly relevant to schools. A school bus driver may volunteer as an assistant basketball coach because coaching is sufficiently different from driving a bus, but the same employee cannot “volunteer” to drive the basketball team to an away game. Similarly, a secretary at a nonprofit that provides programming services to at-risk youth could volunteer to chaperone a trip.
Applying those principles to the service-dog organization, WHD concluded that veterinarians and directors could potentially volunteer as puppy caretakers because their assumed regular duties were sufficiently different from routine puppy care and socialization. Trainers presented a different situation. Because their paid jobs already involved training, caring for, or socializing dogs, WHD concluded that the at-home work would likely constitute the same or similar services and therefore could not be treated as volunteer work.
The opinion letter also explained an important distinction between exempt and nonexempt employees when the volunteer requirements are not satisfied. If a nonexempt employee performs purported “volunteer” services that are actually the same or similar to their regular work, those hours become part of the employment relationship and generally must be counted and compensated as hours worked. For an exempt employee, by contrast, additional nonexempt work generally does not require additional compensation so long as the employee remains paid on the required salary basis and the employee’s primary duty continues to be exempt work.
The full opinion letter can be found here.
Note: Private schools often have employees who want to volunteer at events, extracurricular activities, fundraisers, field trips, or other programs outside their regular jobs. This opinion letter confirms that such arrangements can be permissible, but calling the activity “volunteer” work is not enough. Before allowing an employee to volunteer, schools should consider whether participation is truly voluntary and unpaid and, importantly, whether the activities are sufficiently different from the employee’s regular job duties. The analysis is particularly important for nonexempt employees because mischaracterizing work as volunteer service can result in unpaid wages and overtime.