Last time, we talked about the problems with for-profit organizations trying to make use of volunteers. We learned there are very specific criteria that must be met for an activity to be considered a legitimate volunteer opportunity. As it turns out, while they can organize volunteer efforts for charitable organizations and/or encourage their employees to volunteer their services individually, it’s virtually impossible for a profit-making organization to use volunteer labor directly.
For non-profits, on the other hand, the situation is a bit different. Not necessarily less complicated, but different.
Motivation is key
For non-profits, they can make use of volunteer labor, as long as the volunteering individual is motivated by “personal, civic, charitable, humanitarian, religious, or public service reasons.” According to the Department of Labor, such “ordinary volunteerism” is not compensable.
So how do you know if an activity qualifies as “ordinary volunteerism”? In general, there are no hard-and-fast rules, but by following certain guidelines a non-profit can maximize the chances that the DOL will regard their workers as true volunteers:
- The individual cannot not be employed by the non-profit to perform the same services as the “volunteer” work.
Turns out there is one hard-and-fast rule: just as with a for-profit enterprise, if the individual is employed by a non-profit they cannot “volunteer” to perform the same or similar services as those for which they are already being paid. Regardless of what services they perform, they cannot be coerced to “volunteer” by the employer, and they must be paid for any work performed during their regular working hours.
- The individual should not otherwise be rewarded or compensated by the non-profit.
Volunteer work should be truly volunteer. If the non-profit gives the volunteer significant gifts or a monetary stipend (less than minimum wage) in return for their efforts, they make it much more likely that the DOL will consider that worker an employee. This could leave the non-profit on the hook for the difference between the monetary stipend and minimum wage (and the full minimum wage in the case of gifts, as wage and hour law requires employees to be paid in cash, not with merchandise).
- The individual should not be engaged in commerce to benefit the non-profit.
Some non-profits sell goods or services to the public in order to support their charitable activities — for instance, by operating a thrift store or café. If the individual works as part of the commercial operation (a sales clerk at the thrift store, bussing tables at the café) there’s a good chance the DOL will not consider them a volunteer. However, if they’re working in a non-sales capacity, directly involved in the charitable activities (tending a community garden, assisting at a homeless shelter, mentoring at-risk children, etc.), they’re much more likely to be considered a legitimate volunteer.
- The non-profit should not be paying others to perform similar work.
Again, as with a for-profit enterprise, if the “volunteer” is being used to replace the work of paid employees, it’s almost certain the DOL will not recognize them as a true volunteer. If the non-profit is already paying some workers to provide the service, it’s hard to argue that others should not be paid to provide the same work.
- The non-profit should limit the control they exercise over the terms of the volunteerism.
For example, if the non-profit mandates that the “volunteer” must work 40 hours a week, Monday through Friday between the hours of 8:00am to 5:00pm with one hour for lunch, and they have to put in a formal request if they want time off, and there’s a “volunteer handbook” that spells out rules of conduct… well, to the DOL that starts to sound a lot like an employee-employer relationship. On the other hand, someone who sets their own schedule and tells the non-profit when to expect them, and who has a reasonable amount of leeway in specifically how they go about providing their services, is more likely to be considered a volunteer. This doesn’t mean a non-profit can’t have any control over their volunteers — certainly there are situations where an organization might need people to work a predictable schedule or follow certain work procedures or general rules of conduct — but the more control the non-profit exerts, the less likely it is that the workers will be considered bona-fide volunteers.
While a non-profit should limit the control they exert over volunteers, it is acceptable (and a good idea!) to track the time they spend on their volunteer work. This way, not only do you know who’s contributing the most time to your cause, it also protects you should the DOL decide to question anyone’s classification as a volunteer. Those time records may help bolster your contention that the worker is a true volunteer — and if they are eventually reclassified as an employee, your time records will ensure you don’t overpay for the time the individual worked. Without good records, you’d have to rely on your or the individual’s best recollection of when they worked, which would likely not be as accurate.
Fortunately, Acroprint offers a variety of economical and user-friendy time tracking solutions suitable for all sorts of working environments and organization types. For more information or to place an order, visit our website or give us a call.