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In a recent opinion letter, the US Department of Labor (“DOL”) reaffirmed that employees of nonprofit organizations may volunteer for their employer, so long as:
- their volunteer services are offered freely and without employer pressure;
- there is no expectation of or receipt of compensation; and
- the volunteer activities are not the same or similar to the work the employee is employed to perform.
The DOL further emphasized that employees cannot waive their rights under the Fair Labor Standards Act (“FLSA”) by agreeing to perform unpaid work that is essentially part of their regular job duties.
Accordingly, where a nonprofit employee performs “volunteer” activities that are the same as or similar to their regular job responsibilities, those activities are likely to be viewed as part of the employment relationship, rather than true volunteer service under the FLSA. For non-exempt employees, this may require the employer to count the time as hours worked.
The DOL also explained that where an exempt employee performs additional duties that would not qualify as volunteer activities, because they are similar to the employee’s regular work, the employee may still remain exempt, so long as the employee continues to satisfy the applicable salary and duties tests, and their primary duty remains exempt work.
The opinion letter serves as a reminder that labeling work as "volunteer" service does not make it so under the FLSA. Nonprofit employers should ensure participation is truly voluntary, there is no expectation of compensation, and volunteer activities remain distinct from employees' regular job duties.
Employers should be mindful that state and local laws may impose additional or more restrictive requirements. By way of example, New York nonprofit employers should be mindful that state law takes a more stringent view of employee volunteer arrangements. As a result, employee activities that may qualify as volunteer service under the FLSA may still be treated as compensable work under New York law, particularly where the duties overlap substantially with the employee’s regular role.
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