MORE ON ‘FREE’ WORK – THE EMPLOYEE WHO VOLUNTEERS
QUESTION: I work for a non-profit that helps people who are victims of abuse and sexual assault. We are repeatedly told we have to keep our hours down, and overtime is not approved. Some of my work needs more time and attention to detail than I’m allowed. I’m willing to volunteer my time to give the work the attention I think it needs, but my boss says no because he is required by law to pay me whether I want the money or not. If I want to work for free, isn’t that my business?
ANSWER: You would think if you want to donate your services, you should be able to do so. But – since you work for a nonprofit – the answer is not clear cut. If your employer is not covered by the Fair Labor Standards Act, you might be able to volunteer your time. However, if the nonprofit is covered, and the work you want to do is the same as that for which you are normally paid – you must be paid. There is no room for doubt for for-profit employers covered by the FLSA, employees must be paid for their work.
Certain types of nonprofits are automatically covered under the FLSA as “named enterprises.” These include schools, preschools, hospitals, mental health centers and residential care facilities and government agencies. Nonprofits may also be covered by the FLSA if they earn income from “interstate commerce” that results in gross revenues over $500,000. In determining if the nonprofit reaches this threshold, the Wages and Hours Division of the Department of Labor (which oversees the FLSA) only looks at those activities performed for a business purpose. Income from membership fees, dues, and donations used to further the organization’s charitable activities is not included in determining the income earned in interstate commerce.
To make matters murkier, interstate commerce is defined broadly to include businesses that take payments from customers who are out of state or who process payments that come from out-of-state banks.
Given this, it is likely the nonprofit you work for is covered by the FLSA or by comparable state law provisions and you cannot volunteer to work extra hours, doing the same kind of work for which you are normally paid, or perform work that would normally be performed by a paid employee.
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By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law