THE INTERNATIONAL JOURNAL OF VOLUNTEER ADMINISTRATION Volume XXIV, Number 3 Editor’s Note: The following article is reprinted (with minor format changes) as it appeared originally in the JOVA, 2004, 22(3), pp. 33-35. Utilizing Employees as Volunteers Connie Pirtle Founder & Director, Strategic Nonprofit Resources 10103 Edward Avenue Bethesda, MD 20814 Telephone: (301) 530-8233 FAX: (301) 530-8299 E-mail: AskConnieP@cs.com Abstract When employees volunteer in their own workplace, it blurs the lines (factually and perceptually) between employment and voluntary engagement. It can become very difficult to distinguish between what employees do for salary and what they do voluntarily. This article looks at the legal and management implications of allowing staff to volunteer within the same organizational structure. Key Words: volunteers, employees With the advent of volunteerism in all Could employees feel coerced, no matter levels of service for nonprofit organizations, how subtly, to volunteer for us? What hap- the distinction between salaried employees pens if an employee-volunteer gets hurt and unpaid "workers" has begun to blur while volunteering and then we learn that (Sixel, 2002). This issue gained national workers' compensation doesn't apply to visibility in 1999 when volunteer them because they are wearing their moderators asked the U.S. Department of volunteer hat for us? How do we ensure that Labor to investigate unfair practices at AOL the work of an employee-volunteer is (Junnarkar, 1999). One volunteer in fact "substantially" different from their paid job? sued AOL for unfair labor practices. Some And then there are the human resource of these claims have been settled financially management questions. Will a potential and others may still be pending. employee-volunteer resent being rejected While AOL is a for-profit company, from the volunteer program? Do we have to these incidents served to heighten concerns be careful not to single out for special treat- throughout the nonprofit sector. We realized ment employees who volunteer for us? Can that our good intentions had potential liabili- we ask volunteers to supervise employee- ty implications for our organizations, didn't volunteers or will they resent that? If protect our employees as much as we someone sues us, how will we manage the thought, and could undermine the important public relations and potential ill will in the work of our volunteers. Suddenly people community? How do we protect the were thinking about the Fair Labor Law, organization, our employees, and our ADA, workers' compensation insurance, and volunteers? a host of other legalities in a very different Conventional wisdom right now is that way. the best thing to do is not utilize employees 90 January 2007 THE INTERNATIONAL JOURNAL OF VOLUNTEER ADMINISTRATION Volume XXIV, Number 3 as volunteers for your own organization. unteer/staff members (by declaring The labor issues are too gray and the someone a volunteer on certain tasks potential risks are not worth taking. Many when they didn't want to or couldn't organizations have taken a straightforward afford to pay them) and to keep the approach and written a policy that prevents volunteer/staff person from suing the employees from volunteering for their organization for back wages if he/she employer. For example, according to the HR decided they were treated unfairly as a director at a science museum in Ohio, their volunteer for their [employer] policy is that employees cannot volunteer institution.” for the museum. This policy was formulated • One museum does not permit employees to avoid any confusion or perception of an to volunteer for it. Occasionally, employee doing any work as a ”volunteer” employees work during special events for which he/she would normally be paid. "beyond their usual work times," and She also cited concerns about terminating an they receive compensatory time off in employee-volunteer if necessary, along with these instances. concerns related to federal discrimination laws, the Americans with Disabilities Act, In the right circumstances it is not illegal and the federal Fair Labor Law. for employees to volunteer for their In a personal survey of nonprofit institu- employer, but it is not advisable unless an tions in the Washington, DC, area, organization is willing to create policies and colleagues revealed the following procedures that specifically govern information (quotation marks indicate employee-volunteers to avoid liability and specific wording from respondents): provide protection for their employees and • One organization permits employees to volunteers. And, even taking those steps volunteer on an "emergency" basis, e.g., does not guarantee that a dissatisfied when a volunteer is sick or when one is employee won't seek redress for perceived absent without notice. Employees do unfair treatment. their "volunteer" work during regular In the absence of any statutory or business hours with an excused absence regulatory exemption, the Department of from their supervisor and do not Labor has utilized statutory precedent to volunteer on their personal time. formulate an exemption for the employees • Another organization does not permit of charitable entities who wish to perform employees to volunteer for it. This is volunteer work for their nonprofit based on their philosophy that employers. The Department has drafted a set "volunteers receive benefits in thanks for of six criteria or conditions under which not- their work (memberships, programs, for-profit employees can volunteer: etc.) and employees receive remuneration." 1. The services are entirely voluntary, with • One federal institution permits no coercion by the employer, no promise of employees to volunteer in other similar advancement, and no penalty for not federal institutions for which they are volunteering. not paid, e.g., an employee of one 2. The activities are predominately for the Smithsonian museum could volunteer at employee's own benefit. another Smithsonian museum. This 3. The employee does not replace another policy was established to "keep employee or impair the employment supervisors from abusing their vol- opportunities of others by performing work 91 January 2007 THE INTERNATIONAL JOURNAL OF VOLUNTEER ADMINISTRATION Volume XXIV, Number 3 that would otherwise be performed by not meet the "employee" criteria for another. regular employees. For example, the Internal Revenue Code 4. The employee serves without contempla- uses different rules for distinguishing tion of pay. between employees and independent 5. The activity does not take place during contractors than the federal Fair Labor the employee's regular working hours or Standards Act uses when determining scheduled overtime hours. whether someone must be paid the minimum 6. The volunteer time is insubstantial in wage. As a result, those who administer relation to the employee's regular hours. volunteer service programs must familiarize themselves with the classifications posed by In addition, although not specified both the state and federal laws that above, the Department of Labor appears to potentially affect their volunteer and salaried require that nonprofit employee-volunteers personnel. See Nonprofit Risk Management offer their uncompensated services in Center, http://www.nonprofitrisk.org activities distinct from their normal (Johnstone, 2002). employment duties (U.S. Department of Some additional considerations include: Education, 1998). Thus, the following would • Americans with Disabilities Act – constitute permissible volunteer situations Because volunteers are not regarded as for the employees of a nonprofit public employees, they are not covered by broadcasting television station: some parts of the ADA. When an • an administrative assistant or janitor who employee is also a volunteer, the volunteers to work as a member of the organization may subject itself to production crew unnecessary risk and/or liability related • a secretary or bookkeeper who offers to to volunteer recruitment procedures and do some announcing and on-air work. decisions, how people are treated while they are employed (versus how they are Employee Or Volunteer? treated as volunteers), or volunteer Terminology often sets the stage for separation/termination procedures and determining how laws may be applied. For decisions. example, the applicability of a specific labor • Federal Employment Discrimination law will depend on whether the worker in Law - question falls under the law's definition of Federal laws prohibiting employment "volunteer" or "employee." The classifica- discrimination based on race, color, tion chosen by the service organization will religion, sex or national origin include not affect the law's applicability. Therefore, Title VII of the Civil Rights Act of 1964, whether a charitable entity refers to its (1) the Age Discrimination In Employ- personnel as "volunteers," "participants," ment Act of 1967 and (2) the Pregnancy "gratuitous employees," or "interns," the Discrimination Act. Several cases under organization's choice of appellation will not these laws have involved volunteers or modify its obligation to afford certain prospective volunteers who claimed dis- protections to all personnel who meet the crimination and sued organizations. statutory qualifications of an "employee." These cases held that volunteers who Just as the characteristics of volunteers may receive no compensation are not vary, so do the classifications imposed by protected by federal employment different laws. An individual, who may discrimination laws. Thus, the issue for qualify as an "employee" under one law may any organization that allows employees 92 January 2007 THE INTERNATIONAL JOURNAL OF VOLUNTEER ADMINISTRATION Volume XXIV, Number 3 to volunteer for it is whether or not it is frustrations with employees who volunteer. worth the risk to blur the lines between Negotiating the legal maze of volunteer who is a volunteer and who is an service administration can be confusing. The employee. laws that have been designed to protect vol- • Workers' Compensation-Workers' unteers from exploitation and employees compensation laws provide a means of from unfair competition often make it diffi- recovery for individuals injured during cult for service organizations to offer the course and scope of employment. community service in a legal and Workers' compensation benefits are economically feasible manner. One of the commonly reserved exclusively for key questions to answer before embarking injured "employees" and their families. on utilizing employees as volunteers in your In a few states, the courts have addressed organization is how to guarantee that the the question of whether a volunteer may legal requirements for employee-volunteers receive workers' compensation benefits. are met. Some of these decisions hinge on whether the volunteer receives any form References of compensation, such as a living Johnstone, A. K. (2002, July). Employer allowance, stipend, room and board, sponsored programs: Wage and hour benefits or even reimbursement for liability pitfall. New Hampshire expenses. Volunteers are not covered in Business Review. most states. When employees volunteer for their employer, there may be a risk Junnarkar, S. (1999). AOL volunteers claim that they will not be covered by workers' labor violations, CNETNews.com. compensation when they feel they Retrieved June, 2004 from should be because they are also http://news.com.com/AOL+volunteers+ employed by the same organization. laim+labor+violations/2100-1023_3 224395.html When employees volunteer in their own workplace, it blurs the lines (factually and Sixel, L. M. (2002). Volunteers grapple with perceptually) between employment and vol- gray areas of labor law, Houston untary engagement. It can become very Chronicle. difficult to distinguish between what employees do for salary and what they do U.S. Department of Education. (1998). voluntarily. It can also lead to frustration Negotiating the legal maze to volunteer and resentment among employees who work service. Retrieved from for pay and who don't volunteer in the http://www.ed.gov/inits/americareads/re workplace because they can't or choose not ourcekit/Negotiating/wagehours.html to volunteer. Also, volunteers from outside the organization can have these same About the Author Connie Pirtle is Principal Consultant with Strategic Nonprofit Resources, a Washington, DC, area firm serving nonprofit organizations in all areas of volunteerism. For more than 15 years she has worked extensively with volunteer program managers, volunteers, board members, executive directors, and marketing and development directors to increase effective utilization of volunteers 93 January 2007 THE INTERNATIONAL JOURNAL OF VOLUNTEER ADMINISTRATION Volume XXIV, Number 3 in nonprofit governance and direct service. Connie also writes an online advice column on volunteerism. “Ask Connie” appears monthly at www.VolunteerToday.com, where she answers questions about volunteer management issues and provides Internet resources. You may contact her at AskConnieP@cs.com. 94 January 2007
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