Steps for Terminating Injured Employees in Ohio by kjr12144


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                                                                    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

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

                                           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

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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

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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,
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

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    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,
    compensation when they feel they                      Retrieved June, 2004 from
    should be because they are also             
    employed by the same organization.                    laim+labor+violations/2100-1023_3
    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          
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

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                                                                 Volume XXIV, Number 3

in nonprofit governance and direct service. Connie also writes an online advice column on
volunteerism. “Ask Connie” appears monthly at, where she answers
questions about volunteer management issues and provides Internet resources. You may contact
her at

                                           94                                   January 2007

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