Make Sure it Complies with the Fair Labor Standards Act
Many employers understand the value of giving back to their communities and realize the benefit of visibility within their communities. Thus, an increasing number of employers are following the new trend of implementing optional community service programs within their companies. In an employer-sponsored volunteer program, the employer allows employees to volunteer for a certain number of working hours each year or each month while providing the workers with the compensation they would have received for being on the job. In some instances, employees may volunteer during non-working hours and still receive some type of monetary award. These can include bonuses or non-monetary awards such as a party or other fun outing or activity.
In an employer-sponsored volunteer program of this nature, the employer may either sponsor a volunteer outing or outings in which employees can participate. Alternatively, businesses may allow employees to participate in a volunteer activity they have chosen for themselves. Such a program can have a significant benefits for both employees and employers, including improved morale at the work place, increased involvement and contributions in the community, and visibility within the community. However, it is wise to be cautious in the implementation of a volunteer program within any business or workplace.
A March 14, 2019 Opinion issued by the Wage and Hour Division of the United States Department of Labor addresses such programs and how they have the potential to violate the Fair Labor Standards Act (FLSA). The Opinion provides that “Congress did not intend for the FLSA ‘to discourage or impede volunteer activities,’ but rather to ‘prevent manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to ‘volunteer’ their services.’”
As such, under the law, an employer intending to implement a volunteer program is permitted to notify its employees of such volunteer opportunities and activities as well as ask for assistance from employees in participating in such volunteering tasks. An employer is also permitted to implement an incentive-based program so long as an employee’s participation in such a program is not mandatory. An employer-sponsored volunteer program cannot adversely affect working conditions or employment prospects for employees whether they do or do not choose to participate. In other words, an employer cannot engage in direct or implied retaliatory actions against an employee who chooses not to participate. Further, the employer cannot put undue pressure on the employees to participate in the program.
Moreover, the Opinion stated that an employer cannot “control or direct” the volunteer work of its employees. Specifically, an employer is not permitted to allow or disallow certain types of volunteer work and/or direct the employee on how to accomplish such volunteer work. If the employer does “direct or control” the way in which an employee completes a volunteering task and/or volunteering activity, that time will be considered hours worked under the FLSA. In turn, those hours are subject to the regulation of overtime and other standards under the FLSA. The Opinion also stated that employers may use certain methods of tracking the volunteer hours of its employees so long as the tracking device does not control or instruct the employee in their volunteerism.
The Opinion also states that compensating employees when they participate in volunteer activities during normal working hours does not “jeopardize their status as volunteers when they participate in volunteer activities outside of normal work hours.”
An employer may use an employee’s time volunteering as a factor in calculating whether to provide that employee with a bonus, “without incurring an obligation to treat that time as hours worked so long as: (1) volunteering is optional; (2) not volunteering will have no adverse effect on the employee’s working conditions or employment prospects; and (3) the employee is not guaranteed a bonus for volunteering.” In essence, a bonus cannot be guaranteed to an employee who volunteers and/or taken away from an employee who does not volunteer.
Therefore, if an employer chooses to engage its employees by implementing a volunteer program, the employer must ensure that it is complying with the FLSA. In order to do so, employers must ensure the following items are adhered to 1) employee volunteering is completely optional; 2) there are no adverse impacts or effects on employees who choose not to volunteer; 3) if an employer chooses to provide bonuses to employee-volunteers, that the bonus is not guaranteed in exchange for the employee’s volunteer hours; and 4) the employer does not direct or control the employee volunteer activities.
Employer-sponsored volunteer programs are valuable tools that provide many benefits for companies, employees and communities alike. If you, as an employer, are considering implementing such programming, it is important to confer with legal counsel regarding the specifics of such a program to ensure compliance with the FLSA.