Volunteer Time and Nonpaid Employment
The determination of compensation for work is separate from the determination of an employment relationship.
Under the Fair Labor Standards Act, individuals may work for charitable, civic or religious nonprofit enterprises without expectation of compensation and be considered a “volunteer” not included in the definition of “employee.” When determining ordinary volunteerism, the US Department of Labor considers a variety of factors, including the nature of the entity receiving the services, the receipt by the worker of any benefits from those for whom the services are performed, whether the activity is less than a full-time occupation, whether regular employees are displaced, whether the services are offered freely without pressure or coercion, and whether the services are of the kind typically associated with volunteer work.
In most cases, training that is directly related to work is considered part of the employment relationship and should be compensated. Time spent in training or preparing for training outside regular working hours shall be considered hours of work if the training is required to bring performance up to a fully successful, or equivalent level, or to provide knowledge or skills to perform new duties and responsibilities in the employee’s current position.
Time spent in an organized program of related, supplemental instruction by employees working under an apprenticeship or similar program may be excluded from working time if: a) the student is employed under a written agreement, and b) such time does not involve productive work or performance of the student’s regular duties.
The Fair Labor Standards Act provides for the employment of certain individuals at wage rates below the minimum wage. These individuals include student-learners (career and technical education students), as well as full-time students employed by retail or service establishments, agriculture, or institutions of higher education. Also included are individuals whose earning or productive capacity is impaired by a physical or mental disability, including those related to age or injury, for the work to be performed. Employment at less than the minimum wage is designed to prevent the loss of employment opportunities for these individuals. Certificates issued by the Department of Labor’s Wage & Hour Division are required for this type of employment. The youth minimum wage, authorized by the FLSA, allows employers to pay employees under 20 years of age a lower wage for 90 calendar days after they are first employed.
Employee or Volunteer: What’s the Difference? by Melanie Lockwood Herman