Along with back-to-school events and apple picking, corporate-sponsored volunteer opportunities are a hallmark of the Fall season. September and October traditionally bring runs and walks for charity; nationally and locally coordinated events and “days of giving” for such organizations as Habitat for Humanity and Big Brothers Big Sisters; and other opportunities for companies to give back to their communities. Encouraging employees to volunteer can benefit not only the community and a company’s public image, but also can strengthen an employer’s relationship with its employees: employees have reported greater job satisfaction and loyalty to employers who participate in civic and charitable endeavors.
But, as with anything else, good intentions can lead to pitfalls for the unwary. Employers must be very clear about the difference between encouraging employees to volunteer and compelling employees to participate in specified activities. For example, in guidance pursuant to the Fair Labor Standards Act (“FLSA”), the Department of Labor (“DOL”) has stated that “when an employer directs an employee to volunteer, that time is compensable,” cautioning that volunteer activities “must be truly voluntary and any coercion or pressure, whether direct or indirect by the [employer] to participate in this program outside of  duty hours would negate the voluntary nature of the program.” To avoid wage and hour issues, then, an employee’s participation must be optional, and failure to participate must not adversely affect his or her employment.
For work to be truly voluntary, the DOL provides that:
Designation of “volunteer” status cannot be done unilaterally by the employer to avoid minimum wage or overtime requirements;
The volunteer time must be for a civic, charitable, or humanitarian purpose without any promise, expectation, or receipt of compensation by the employee (though a nominal fee may be provided);
The act of volunteering truly must be voluntary, without any direct or implied coercion from the employer;
The employee’s volunteer activities must not be similar to the services he/she performs as part of his/her regular employment; and
The volunteering must be performed outside the employee’s normal work hours.
Whether an employee is truly acting as a “volunteer” also implicates workers’ compensation issues. An employee who is injured while painting houses or helping clean up the park may have a viable workers’ compensation claim against the employer who encouraged the activity, depending on the circumstances. While state laws vary, the general factors that will be considered remain similar to those articulated by the DOL: whether the work was truly voluntary, whether the employer benefitted from the activity, the extent of the employer’s control or direction of the activity, and whether the activity occurred on the employer’s premises during working hours. And in many states, a waiver by the employee that he or she will not sue for injury will not be enforceable if the activity is determined to be covered.
Employers may have the most difficulties when they actively sponsor and/or promote specific volunteer opportunities. It is in these situations that the fine line between “employee” versus “volunteer” may be crossed, if the time spent volunteering is at the employer’s request or under the employer’s direction or control, or during working hours.
For example, consider an employer who operates a program to “weatherize” the homes of low-income families. Employees who volunteer spend one Saturday per year weather-proofing area homes. The entire program is sponsored and run by the employer. While participation is voluntary, the employer does send an e-mail from the Community Affairs Department and a memo from the Chief Executive Officer to employees to encourage them to participate. The employer does not compensate the employees for their time, but those who participate receive promotional items and sufficient materials to weatherize their own homes.
In this example, the work was not directed by the employer, performed on the employer’s premises during working hours, or for the employer’s benefit. The benefits to the employees were de minimis. Under these circumstances, the employer is under no obligation to compensate employees who participate in this program, provided that employees were truly volunteering on their own accord. That being said, hopefully, the employer was mindful that the memo and e-mail could be used by employees to argue that their participation was not voluntary, and was careful in vetting its language accordingly.
One solution employers should consider is documenting the employee’s understanding that the volunteer work in which he/she is engaged is truly voluntary; performed for civic, religious, charitable, and humanitarian reasons; and that the employee may discontinue the work at his/her choice without suffering any penalty or adverse employment consequences.
Employers should remain mindful of the boundary between incentivizing or encouraging their employees to participate in charitable activities, on the one hand, and compelling or directing such conduct, on the other. By doing so, they can ensure that “volunteer” work remains voluntary, and they and their employees can reap the benefits while lessening the risk of unintended consequences.