wheelchairOver the weekend, I finished planning for our webinar tomorrow on the new overtime rules.  In digging deeper into the materials produced by the Department of Labor on the final rule, I looked at the use of volunteers as a solution — particularly for non-profit organizations.

For the “for-profit” world, this is probably not a realistic option.  The DOL really frowns on any such designation.

But on the last page of the 10-page guidance for non-profits, is a whole section on how non-profit organizations can use volunteer services if certain conditions are met.

To be sure, the new overtime rule doesn’t change the existing rules governing volunteers, but as non-profits look at how to address the issue internally, the use of volunteers may pop up.

So who is a volunteer? According to the DOL: 

A volunteer generally will not be considered an employee for purposes of the FLSA if the individual volunteers freely for public service, religious, or humanitarian objectives, and without contemplation or receipt of compensation. …  Under the FLSA, a person who works in a volunteer role must be a bona fide volunteer.

Some examples of the many ways in which volunteers may contribute to an organization include:
• members of civic organizations may help out in a community rehabilitation program;
• men’s or women’s organizations may send members to adult day care centers to provide certain personal services for the sick or elderly;
• individuals may volunteer to perform such tasks as driving vehicles or assisting with disaster relief; and
• individuals may volunteer to work with children with disabilities or disadvantaged youth, helping in youth programs as camp counselors, scoutmasters, den mothers, providing child care assistance for needy working parents, soliciting contributions or participating in benefit programs for such organizations, and volunteering other services
needed to carry out their charitable, educational, or religious programs.

So, problem solved right? Well, not exactly. The DOL suggests that volunteers serve on a part-time basis and, here’s the key point:
“should not displace employees or perform work that would otherwise typically be performed by employees.”

And what about having paid employees volunteer their extra time? According to the DOL: paid employees of non-profit organizations may not volunteer to provide the same type of services to the non-profit organization that they are otherwise
typically employed to provide.

The DOL provides two examples:

  1. A non-profit medical clinic has an office manager who handles office operations and procedures. The clinic hosts an annual 5K fun run in order to raise funds for its free services. In past years, the office manager also spent time on race day working by registering runners the morning of the run. Newly non-exempt under the Final Rule, the non-profit clinic may permissibly choose to utilize more volunteers this year to register runners instead of tasking the office manager with that assignment (provided all the conditions for bona fide volunteers are met), thus avoiding the accumulation of overtime hours in that week for the office manager.
  2. Using the same facts as above, many other individuals from the community volunteer on race day. The volunteer activities, such as packet pickups, course marshaling, water distribution, and staffing food tables at the finish line, are activities that are not typically performed by employees of the medical clinic. Based on these facts, the individuals are likely bona fide volunteers.

The use of volunteers can be part of a solution to rising overtime costs at a non-profit, but only just part.  The notion that you can just replace your employees with volunteers is not realistic.

We’ll talk more about this and other overtime issues tomorrow.  Hope you are able to join us.

As we wrap up a week with, go figure, more rain, we’re starting to get deep into the important part of the year: The Yankees-Red Sox rivalry.

The House that Ruth Built

In the meantime, here are a few odds and ends you might have missed or you might be interested in surrounding the world of employment law:

  • Giving employee’s time off as a reasonable accommodation under the ADA is not new.  But recently, the EEOC held a hearing on it and released a press release reminding employers about it.   If you need a reminder about it, Lili Palacios Baldwin of the BLEG Blog, has a good recap with some pointers for employers.
  • Law review articles are not for everyone, but I’m guessing that somewhere out there is a person who has always dreamed about getting something in print. If so, this bullet point is for you.  Jason Tenenbaum (who you can follow on Twitter) sent me this call for articles:

The Hofstra Labor & Employment Law Journal invites submissions for its Fall 2011 issue on all topics relating to labor and employment law. The issue is tentatively scheduled for publication in early December 2011. Additionally, we are specifically seeking articles on the topic of the intersection between labor and employment law and the financial sector for our symposium to be held in November 2011. While we prefer completed papers, authors interested in the symposium but whose articles are not yet ready for publication are encouraged to contact us as we are still seeking participants/contributors. We ask that all articles be submitted by August 15, 2011. Please submit your manuscripts (along with any appropriate supporting documents) or any questions to Ashley Behre, Managing Editor of Articles, at laboremploymentlaw@hofstra.edu. Thank you for your interest.