For more information, visit the U.S. Department of Labor website at www.dol.gov. For more information on volunteers and staff in general, see the chapter that summarizes community employment in LGC`s publication Knowing the Territory: A Survey of Municipal Law for New Hampshire Local Officials. To explore the topics of volunteerism and accountability, you should read an article entitled “Volunteers and Liability: An Overview of Legal Protection and Community Exposure,” published in the March 2007 issue of New Hampshire Town and City Magazine. Section 3(e)(4)(A) of the RSA and 29 C.F.R § 553.101, .104 and .106. The RSA is the federal law that sets minimum wage, overtime, record keeping and youth employment standards. In general, we tend to think of volunteers as people who donate their services to a community; who do not expect to be paid for these services; and who do not receive any compensation from the municipality. However, as the following discussion shows, there is more to be a volunteer than offering free services and not receiving a paycheck. Under California labor law, an “employee” is generally defined as any person who is under the direction and control of an employer, either by appointment or by oral or written contract. In addition to the standard definition, some of the key differences between employees and volunteers include: Small employers often mistakenly believe that they are not covered by the RSA and may therefore allow employees to provide their services voluntarily, even if it is a private or for-profit business.
However, the RSA includes all employers engaged in interstate commerce, a very broad term that can apply to small businesses along U.S. and interstate highways, employers who receive materials or consumables from suppliers outside the state, or employers who sell to customers outside the state. It is important that local officials understand the laws that apply to services provided by volunteers, as wrongly referring to people as “volunteers” when they are in fact “employees” leads to the assessment of salary arrears, taxes and penalties against the community. This article will examine what volunteers are and what are not, under the Fair Labour Standards Act (FSL). Below is a brief guide on deploying volunteers and interns under federal law. Keep in mind that these are only general guidelines and that national and local laws may be more restrictive. The Fair Labour Standards Act (FLSA) defines employment very broadly, that is, “suffering or allowing to work”. However, the Supreme Court clarified that the purpose of the RSA was not to “mark as employees any person who could work on someone else`s premises for his or her own benefit without an explicit or implied compensation agreement.” In administering the RSA, the Ministry of Labour follows this judicial directive for individuals who work as unpaid volunteers in various community services. Individuals who volunteer or donate their services, usually on a part-time basis, for public, religious or humanitarian services, and not as employees and regardless of remuneration, are not considered employees of religious, not-for-profit or other not-for-profit organizations that receive their services. I am certified in labor and labor law by the Florida Bar and have practiced at several companies, including Baker & McKenzie, Epstein Becker & Green and Akerman.
I regularly represent clients in matters under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), as well as in cases where discrimination and retaliation in the workplace are alleged under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA) and the Florida Civil Rights Act. I also handle cases of whistleblowing, restrictive agreements (non-competition and non-solicitation), breach of contract, and trade secrets, and I regularly appear before federal and state agencies, including the Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor, and the Occupational Safety and Health Administration (OSHA). I have handled a wide range of litigation in federal and state courts throughout my career, including consumer class actions, commercial litigation, and ADA Title III litigation. I graduated with honors from George Washington University School of Law in 1991 and a Bachelor of Arts degree from Franklin & Marshall College in 1988. I can be reached at 754.551.5630 or rtuschman@gtemploymentlawyers.com. Although the definition of employment and wage requirements in the RSA is very broad, the U.S. Supreme Court recognized as early as 1947 that the work of a person who “serves only his or her own interest” may be outside the scope of the RSA definition of employment in very limited circumstances. This holding company paved the way for unpaid internships as an exception to the salary requirements of the RSA. Some claims for damages and remedies to which volunteers may be entitled if they file a successful civil suit include the following: It can be difficult to distinguish between a volunteer and an employee in certain situations. Often, this task requires a careful reading of the law and the ability to apply it to the facts of a particular scenario.
Therefore, volunteers should consult with a local discrimination lawyer to find out if they are entitled to damages and if they can potentially be considered employees. Recently, the topic of internship compensation has attracted a lot of attention, with a number of high-profile lawsuits filed by interns in the entertainment and publishing industries. With this in mind, USDOL continues to be of the view that the narrow “trainee exception” in the general definitions of “employment” in the RSA will not be established until all six factors are met. Commenting on one of the internship cases currently pending before the courts, USDOL reiterated that the internship exemption is a very narrow exception to the broad coverage of the RSA and should not be extended, “especially in difficult economic times when employers are eliminating paid staff positions and the promise of free work is both tempting and available.” A faltering economy and a poor labour market can encourage employers to use “free workers” – volunteers and interns who are willing (at least initially) to forego pay to gain workplace experience or help a favored social cause or a struggling business.