Some say , "no good deed goes unpunished." That is how some employers might feel when they land in hot water for not paying or improperly paying employees for time spent in volunteer activities. Every spring brings questions about volunteer workers, whether it's employees, volunteers or unpaid interns and how they should be treated in compliance with the Fair Labor Standards Act (FLSA). For example, if a non-exempt (hourly) employee spends time in a volunteer activity sponsored by the employer, does that time have to be paid? If not, and the employer provides a bonus or other payment to that employee for the time spent volunteering, must those hours or wages be included in overtime calculations? On March 14, the U.S. Department of Labor (DOL) issued an opinion letter to answer that question. The answer is a qualified, "No." Time an employee spends in the employer's volunteer activities do not count as hours worked so long as:
- The employee's participation is charitable and voluntary;
- participation is not required;
- the employee does not control or direct the volunteer work; and
- no compensation is guaranteed.
Practical application: Before you rely on those four factors, consider the following. There are specific definitions and examples of what constitutes "voluntary" and "charitable" activities and when an employer exercises sufficient "control" or "directs" the volunteer work. Review this and related matters with your company’s legal counsel.
Want to learn more? Attend one or more of at least eight sessions at the 2019 SHRM Annual Conference and Exposition (#SHRM19) addressing wage and hour issues, including the Mega Session “FLSA Jeopardy 2019” presented by Louis Lessig (Twitter:@LouisLessig).