HR Basics, Legal Issues

Unpaid Interns at Non-Profits: Is Having Them “Volunteer” a Better Option?

intern

By John E. Thompson

A reader of our March post relating to unpaid internships at non-profit organizations (see Are Internship Rules Different at Non-Profits or When Arranged by Schools?) asks whether non-profits can avoid the intern debate by offering “volunteer” opportunities to engage in charitable or public-service activities.

But this simply changes the nature of the potential problem.

“Volunteer” activities can be FLSA employment

Considering someone to be a “volunteer” does not necessarily mean that he or she is a non-employee for federal Fair Labor Standards Act purposes. This is true even if:

  • The person is not otherwise employed by the organization;
  • The individual’s activities are said to be of a charitable or public-service nature; and,
  • The activities are carried out for or on behalf of a non-profit organization.

There is some overlap between the considerations relevant to who is and is not a true “intern” or “volunteer” so as not be an FLSA employee, but the two concepts are fundamentally different.

A principal distinction is that the underlying motivation for being a volunteer is not the same. Perhaps one of the most important characteristics of volunteerism is whether the individual undertakes the activity for his or her own, personal civic, humanitarian, charitable, religious, or public-service reasons.

Some of the other factors include whether the activities are of a kind typically associated with volunteer work; are less than a full-time occupation for the individual; do not involve replacing regular employees or impairing employment opportunities; are subject only to “nominal” or “minimal” control by the recipient of the person’s efforts; and tend to occur at times suiting the individual’s own convenience, whether by schedule or otherwise.

Some volunteers fall within specific exceptions

The FLSA itself excludes individuals who volunteer to perform services under certain circumstances for a state, a political subdivision of a state, or an interstate governmental agency. These exceptions explain why, in the proper situations, volunteers at public schools and in some other settings are not viewed as being engaged in FLSA employment.

The FLSA also contains a special exception for individuals who volunteer their services to private, non-profit food banks and who receive groceries from the food banks. But even this provision applies only if the person does so “solely for humanitarian purposes.”

The point is that, just because a neighbor is a non-employee volunteer at the county’s middle school, for example, one should not assume that “volunteers” of all sorts are seen in the same light.

Think things through carefully

It is wise to be cautious in evaluating even non-profit “volunteer” relationships under the FLSA. One illustration of the possible uncertainty is that the U.S. Department of Labor’s Office of Enforcement Policy has said that volunteers who staffed a non-profit hospital’s gift shops were instead performing compensable work for FLSA purposes.

Note too the Labor Department’s position that individuals may not “volunteer” to do things for their employer which are the same as or are similar or related to their normal work duties. Instead, it says, this is compensable FLSA work time. The Labor Department might also take the same view regarding time an employee spends even in arguably dissimilar services of a public or charitable nature, if this occurs at the employer’s request, under its direction or control, or during the employee’s normal working hours.

“Volunteering” by an organization’s employees is beyond the scope of this post, but it is a “go slow” matter where the FLSA is concerned. Compare Opinion Letter of Acting Wage-Hour Administrator (volunteering to chaperone cultural and sporting field trips provided under employer’s auspices) with Opinion Letter of Acting Wage-Hour Administrator (status of certain activities engaged in by nurses employed at non-profit hospital).

This was originally published on Fisher & Phillips’ Wage and Hour Laws blog.

John Thompson is a partner in the Atlanta office of the law firm Fisher & Phillips. His practice focuses on wage and hour law, assisting employers in preventive efforts designed to ensure compliance, and he handles both investigations conducted by government agencies and litigation in the wage and hour area. John has served as a Special Assistant Attorney General for wage-hour matters for the State of Georgia. Contact him at jthompson@laborlawyers.com.
  • Alison

    John, can you expand more on this? It’s contrary to everything I’ve ever read on the subject, which has always indicated that nonprofits may use volunteers for work with near-complete liberty. The link you provided to the DOL’s Office of Enforcement Policy doesn’t go to a page that supports what you’ve written, and the link right below that goes to a regulation that is referring for for-profit companies who direct their employees to engage in charitable work — it doesn’t refer to employees of nonprofits.
    Many nonprofits are staffed in full or in-part by volunteers. Are you able to cite a law that prohibits this? I truly don’t think there is one.

  • John E. Thompson

    Alison:

    There is a link to a reproduction of the hospital opinion letter on our blog, on which the original version of this article appears.

    We are not saying as a general proposition that non-profits are precluded from using non-employee volunteers.  But, whatever the conventional wisdom or practice might be, we DO caution against assuming that non-profits may do so with near-complete liberty.  Remember that, until relatively recent times, “everybody” thought that unpaid internships presented no FLSA problems.

    We know of at least one law that prohibits using individuals to perform work without pay when the circumstances show that those individuals are covered employees within its meaning — the FLSA.  As USDOL says, “There is no special provision in the FLSA which precludes an employer-employee relationship between a religious, charitable or nonprofit organization and persons who perform work for such an organization.  Section 10b03(a), Field Operations Handbook (U.S. Labor Department, October 10, 1993).

    There are far too many different “volunteer” situations in which the FLSA’s principles might be in play to articulate a single or general rule.  Our point is that at least some such situations might well involve FLSA-covered employment, so it is wise to keep this possibility in mind.

    • http://www.askamanager.org Alison Green – Ask a Manager

      Got it — thanks for the follow-up explanation — I really appreciate it!