Is My Friend a Volunteer or an Employee?
So, your Big Annual Fundraiser is this weekend and instead of the 30 people you thought you’d have to check in guests, run the silent auction, and make sure everyone’s glasses are filled with their beverage of choice, you are down to 15. You vaguebook about it on social media and who should come to your rescue but your ‘of-course-I’ll-buy-a-ticket-to-your-presentation-dissecting-Kokoshka’ bestie. And, the best part? She can also bring a handful of her friends to help out (who is she, and can we all be her best friend?). The last thing you want to think about while champagne flutes are juggled by the catering company and the auction items are laid out is whether it was a huge mistake to say ‘yes’ to someone who wanted to help out their favorite nonprofit organization when you needed it the most. But, do you know whether your friend and all her friends are truly volunteers, or should they be categorized as employees?
Generally, volunteers[i] are persons who do work for a nonprofit organization or public agency without the expectation of payment or benefits: their intention is to give their time and service without compensation.
Whether the work was performed on less than a full-time basis;
Whether the work performed displaced work that would otherwise be performed by a regular employee;
Whether the organization will benefit from the work performed;
Whether the work is a commercial activity (e.g., working in a gift shop);
Whether the worker is volunteering to do the same type of work that the organization already pays them to do as employee;
Whether the worker receives or expects to receive compensation or any benefit from the organization for the work performed; and
Whether the work was performed freely, without pressure or coercion.
In California, the DLSE has stated that the intent of the parties is the controlling factor[iv] for whether a worker is a volunteer—meaning, both the organization and the worker have to intend for the work performed to be done without compensation. As such, it’s important for nonprofit organization’s to consider the factors above and confirm the intent of the people who have come to your rescue to ensure they can be correctly classified as volunteers.
One of the best benefits to being a nonprofit organization is the ability to bring on volunteers to help you work towards satisfying your organization’s mission. Without volunteers, most nonprofits would struggle to provide their full range of services and fulfill their charitable purpose. (We love you volunteers!) Review the factors laid out by the DOL and the DLSE to make sure your nonprofit is protected and that workers are correctly classified; this process benefits the organization as well as those who want to volunteer their time.
How do you handle volunteer expectations? Are your volunteer agreements up-to-date? The end of the year (fiscal or calendar) is a great time to review your contracts to make sure they are still aligned with federal and California employment law standards and clearly communicate the intentions of all parties.
[i] See, 29 CFR § 553.101(a) (“An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours.”). [ii] See, DOL’s Fact Sheet #14A, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs14a.pdf. See also, FLSA Advisor Volunteer page, https://webapps.dol.gov/elaws/whd/flsa/docs/volunteers.asp. [iii] See, DLSE Opinion Letter 1998.10.17, https://www.dir.ca.gov/dlse/opinions/1988-10-27.pdf. [iv] Id. DLSE Opinion Letter.