Support obligations arising from a divorce miniseries: child support

By Daniel Judd

The prospect of a divorce is likely the most important and difficult decision you will ever make, especially if there are children involved.

The previous article examined spousal support obligations arising from divorce (also called “alimony”).

This month’s focus will address the child support obligations of each parent and explain current law regarding when child support is appropriate, who has to pay, and how the court determines the amount of support.

For a Nevada court to order the payment of child support, it must have jurisdiction over the minor child(ren). Further, to achieve jurisdiction, Nevada must be considered the home state of the child(ren).

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) considers the state in which the child has resided for the previous six (6) months to be the child(ren)’s home state.

As such, for a Nevada court to have the jurisdiction required to order child support, the child(ren) must have resided in Nevada for the previous six (6) months. This requirement is separate and distinct from the requirement that a person seeking a divorce have at least six (6) weeks of residency and physical presence within the State.

NRS 125.510(9) states that child support shall continue until the child is 18 years of age and not enrolled in high school, or if the child is still enrolled in high school, until the child is 19 years of age.

There is an exception to this rule. If a child is handicapped/disabled/special needs, the parents will be responsible for supporting the child beyond the age of majority, until the child is no longer handicapped/disabled/special needs, or is self-sufficient, so long as the condition occurred prior to the age of majority.

NRS 125B.070(1) sets forth a formula to determine the amount of child support. Child support is based upon the custody arrangement, number of children, and the parents’ gross monthly income.

The child support obligation under a primary physical custody situation occurs where one parent exercises more than 60% custody over the minor child/ren. The non-primary physical custodian (“obligor” or person obligated to pay support) is required to pay based upon their gross monthly income. Gross monthly income is all income from any source.

The percentage of an obligor’s child support will be calculated on a percentage of the gross monthly income, and the percentage is dependent on the number of minor children involved.

The current rates are as follows: 18% for one child, 25% for two children, 29% for three children, 31% for four children, and an additional 2% for each additional child the parties may have.

This percentage of the parent’s gross monthly income is subject to a presumptive maximum cap which sets forth categories of income and the maximum a parent can be required to pay per month and per child.

The presumptive maximum is adjusted on a yearly basis for inflation based on the Consumer Price Index. In any event, the minimum amount of child support a party may pay is $100.00 per month, per child, unless a court makes a written finding that the party is unable to afford that minimal amount. NRS 125B.080(4).

If the parties share joint physical custody of the children, the case of Wright v. Osburn, (1998) establishes a formula for child support involving the gross income of each parent.

The formula developed in that case takes into consideration that both parents are equally sharing the children’s expenses as they each care for the children in approximately the same amount of time (does not have to be exactly equal or 50%-50%, but can be up to 60%-40%).

The court will take the appropriate percentage of each parent’s gross monthly income based on the number of children they have. The court will then subtract the difference from the two incomes and the parent with a greater income will have to pay the parent with a lesser income the difference of the calculated percentage of gross income.

As an example, suppose parent A and parent B have two children and are getting a divorce where they are awarded joint physical custody. The appropriate percentage of their gross monthly income to be taken into account is 25%.

Parent A has a gross monthly income of $4,000.00 per month and Parent B has a gross monthly income of $1,000.00 per month. The court will take 25% of each parent’s gross monthly income resulting in $1,000.00 and $250.00 respectively.

The court will then subtract the difference, $1,000.00 less $250.00 resulting in a difference of $750.00. Parent A will be required to pay parent B child support in the amount of $750.00 per month, the difference of 25% of their respective incomes. This payment is subject to the presumptive maximum amount per child based on parent A’s gross monthly income.

Although the court sets child support at a certain amount, it does not have to remain constant for the duration of the obligation. Child support can be reviewed at least once every three years in accordance with NRS 125B.145(1).

Additionally, child support may be changed based on a change in circumstance of either party (Rivero v. Rivero). There are many different occurrences which would justify a change in circumstances. Generally, these changes in circumstances which could potentially affect the calculation of support relate to an addition or reduction of gross monthly income such as getting a promotion or losing one’s job.

When faced with a divorce, child support is a significant issue that must be addressed. It is important to know your rights and obligations when preparing for the divorce process.

It can be intimidating to face the prospect alone. Experienced and knowledgeable legal counsel can help ease the burden and ensure that your rights are protected. Should you require more information or have questions, please visit: AllisonMacKenzie.com or call 775-687-0202.

Joan C. Wright Receives Brewery Arts Center Recognition

Joan C. Wright, a former partner, of Allison MacKenzie Law Firm was recognized by the Brewery Arts Center (BAC), as a “Supporter of the Arts.” Joan’s tireless efforts include service as President, Board Member, and Member for BAC throughout the years. Additionally, she has provided pro bono legal counsel for the Carson City organization.

Joan joined Allison MacKenzie in 1979 and holds an extensive list of affiliations with professional organizations including the Nevada State Bar Association, California State Bar Association, Washoe County Bar Association, First Judicial District Bar Association (President 1986), the Nevada Women Lawyers Association (President 1982) and Volunteer Attorneys for Rural Nevadans (President 1997-2000).

Upon her graduation from the University of the Pacific, McGeorge School of Law in 1978, Joan was admitted to practice in California. She is AV® Preeminent™ Peer Review Rated by the Martindale Hubbell Law Directory. Joan focused her practice in the areas of real estate law, resort timeshares, community associations, secured transactions, secured creditors (bankruptcy), easements and quiet title. In April of 2016, Joan became Of Counsel with the firm.

In addition to her affiliation with BAC, Joan finds the time to give back to the community through involvement with the University of Nevada, Reno Women’s Athletic Association in which she served as President in 2000 and 2001, Carson Tigersharks (Masters Swimming) and the Sierra Nevada Chapter of the California Dressage Society.

Congratulations to Joan for being recognized for her enthusiastic support of the arts.

Support obligations arising from a divorce: understanding alimony

By Daniel Judd

Facing the possibility of a divorce can be daunting. There are so many uncertainties and questions to be answered: What is going to happen to the house? What is the custody arrangement for the children? How am I going to pay the bills without my spouse’s income? Fortunately, in Nevada, courts have the discretion to award spousal support, also known as alimony. NRS 125.150(1)(a) authorizes the court to award “just and equitable” alimony at the conclusion of a divorce case.

Alimony may either be awarded in a lump sum or through periodic payments over time, usually monthly payments. Alimony, when paid periodically, will generally be set to last a specific duration. If no specific duration of alimony is ordered by the court, alimony will terminate automatically on the occurrence of either the death of either party or the subsequent remarriage of the party receiving the periodic alimony payments. However, alimony can also terminate in the event the recipient cohabitates with a significant other.

When establishing spousal support, the court will look at specific factors set forth in NRS 125.150(8). These include the following:

  • The financial condition of each spouse;
  • The nature and value of the respective property of each spouse;
  • The contribution of each spouse to any property held by the spouses jointly;
  • The duration of the marriage;
  • The income, earning capacity, age and health of each spouse;
  • The standard of living during the marriage;
  • The career before the marriage of the spouse who would receive the alimony;
  • The existence of specialized education or training, or the level of marketable skills attained by each spouse during the marriage;
  • The contribution of either spouse as a homemaker;
  • The ward of property granted by the court in the divorce, other than child support and alimony, to the spouse who would receive the alimony; and
  • The physical and mental condition of each party as it relates to the financial condition, health and ability to work of that spouse.

The court will review each of these and based on the particulars of each case, will make an award. Two of the factors the court must address when granting alimony are: whether the spouse that will be paying alimony received greater job skills or education during the marriage, and whether the spouse that will be receiving spousal support provided financial support to the other spouse when they were obtaining those skills.

For example, the court could determine that one spouse received an advanced degree during the marriage while the other spouse worked to support them, allowing the first spouse to make substantially more money than the second spouse. Therefore, the court could award alimony to the lower-earning spouse to help him or her to maintain the standard of living they became accustomed to during the marriage.

In addition to the type of spousal support outlined above, NRS 125.150(10) also gives the court the discretion to order rehabilitative alimony, or support for the express purpose of increasing the recipient’s education or training.

The purpose of rehabilitative alimony is to provide the lower-earning spouse an opportunity to get financially established through education or training. If the lower-earning spouse is able to increase their earning potential, then they will be less dependent on their spouse’s alimony payments.

Generally, alimony which came from a decree of divorce, or an agreement ratified, adopted or approved in a decree, which provides for periodic payments is not modifiable as to alimony which has already accrued; however, upon a showing of a change in circumstances, a party may file a motion to change alimony which has not yet accrued.

When faced with a divorce, alimony is just one small, but important issue that must be resolved. It can be intimidating to face the prospect of a divorce alone. Partnering with a compassionate and knowledgeable attorney can help guide clients through this difficult time and achieve a fair and just result.

See the article at ThisisReno.com.

Daniel S. Judd Joins Allison MacKenzie Law Firm

On August 12, 2019, Nevada native, Daniel S. Judd joined Allison MacKenzie Law Firm as a new associate attorney.  Daniel will focus his practice on the areas of Family Law, Divorce, Guardianships and Estate Planning. He is a former law clerk for both Allison MacKenzie and the Honorable James T. Russell, District Court Judge of the First Judicial District Court in Carson City. Additionally, he served the community as a Deputy Sheriff in Carson City.

A Douglas High School graduate, Daniel attended Western Nevada College before transferring to the University of Nevada, Reno where he obtained his Bachelor of Science Degree in Criminal Justice-Pre-Law in 2013. Daniel went on to serve as a Youth Counselor at China Springs Youth Camp where he advised troubled youth. In 2014, he was sworn in as a Carson City Deputy Sheriff. These experiences rejuvenated his desire to help people understand the legal process and their individual rights.

Pursuing his dream of becoming an attorney, Daniel attended the University of Wyoming College of Law, and in 2017, he obtained his Doctor of Jurisprudence Degree. In 2018, he was admitted to the practice of law in Nevada.

“I am honored to join Allison MacKenzie Law Firm. The firm has an affinity for family values and treats its legal team, staff and clients with the utmost respect. They are effectively able to balance compassion with great legal work for all clients,” said Daniel on his new position.

Daniel is excited to embark on his legal career counseling clients and finding effective legal solutions.

Daniel resides in Carson City with his wife and two dogs.  He enjoys the many outdoor activities that Northern Nevada has to offer, particularly hiking and fishing.

Allison MacKenzie is pleased to welcome Daniel to the family. The firm is confident he will provide exceptional and compassionate service to clients. For more information, contact Allison MacKenzie Law Firm at 775.687.0202, or visit AllisonMacKenzie.com.

Changes to Nevada’s minimum wage law – what employers need to know

By Jennifer McMenomy

The 2019 Nevada Legislative Session may be over, but the sweeping statutory and policy changes made by the body are just now beginning to take effect. One such legislative change addressed during the session is the increase of the statewide minimum wage for private employers. As a business owner, it is important to be compliant with the latest federal and state minimum wage requirements in order to avoid legal consequences.

Prior to the most recent legislative session, the minimum wage in Nevada was $7.25 per hour if the employer provided health insurance to the employee being paid the minimum wage. If the employer did not provide health insurance to the employee, the minimum wage was $8.25 per hour. Additionally, Nevada law previously stated that it was the statutory duty of the Nevada Labor Commissioner to establish the minimum wage in accordance with federal law.

Assembly Bill (AB) 456 was introduced on March 25, 2019 by Speaker Jason Frierson and the Assembly Committee on Commerce and Labor. The bill increases the minimum wage required to be paid by private employers. The bill eliminates the Labor Commissioner’s establishment and duty of maintaining the minimum wage and instead enumerates the requirements set by the Legislature in statute. Under the new law every private employer must pay each employee $8.00 per hour of work if the employer offers health insurance to the employee and $9.00 per hour if the employer does not offer the employee health insurance.

In addition to setting the minimum wage, the bill also provides that the minimum wage will increase each year. The new law provides that the minimum wage increases by $.75 on July 1 of each year until 2024. At that time, the minimum wage will reach $11.00 per hour if health benefits are provided and $12.00 per hour if health benefits are not provided. Therefore, employers must be cognizant of the fact that the minimum wage continues to rise by $.75 each year until 2024 and that they are required by law to raise their minimum-wage employees’ wages on the 1st of July each year.

The new law also provides that any employee that prevails in a civil action against an employer for failing to pay the minimum wage is entitled to all remedies under both state and federal law as well as reasonable attorneys’ fees and costs. Thus, employers who violate the requirements of the statute will not only risk facing federal and state civil penalties as well as liability for back wages, but may also be required to pay the attorneys’ fees and costs of any employee who brings forward such a suit.

The passage of AB 456 was a departure from maintaining the minimum wage at the federal level. Presently, the federal minimum wage as it is set forth in the Fair Labor Standards Act is $7.25 per hour and has not increased since July 2009. On July 18, 2019, The House of Representatives voted to pass H.R. 582, more commonly referred to as the “Raise the Wage” Act which would raise the federal minimum wage to $15.00 over a period of six years. According to a U.S. House of Representatives report, the “Raise the Wage” Act would raise wages for approximately 40 million Americans. The Senate will now consider the measure and whether to pass it. It would also need to be signed by the President to become federal law.

If the “Raise the Wage” Act passes it would require employers to pay their minimum wage employees $8.55 per hour effective within three months from the time of passage of the bill. After one year, the minimum wage would raise to $9.85 per hour. Thereafter, each year the minimum wage would raise to $11.15 per hour, $12.45 per hour, $13.75 per hour and finally $15.00 per hour, respectively. Tipped employees making minimum wage would fall within a different standard under the “Raise the Wage” Act. If the Act passes, employers would be required by federal law to follow the standards set forth by Congress and the provisions of AB 456 would no longer apply.

While the National “Raise the Wage” Act is still being considered by Congress and has not become law, AB 456 is the law in Nevada. The bill was signed by Governor Sisolak on June 12, 2019 and became effective July 1, 2019. Therefore, as of July 1, 2020, all private employers in Nevada are required to pay their employees a minimum wage of $8.00 per hour if the employer offers health benefits to the employee and $9.00 per hour if the employer does not offer health benefits to the employee.

In addition to raising the minimum wage, the new law also provides language that allows the Nevada Labor Commissioner the ability to adopt any necessary rules and regulations to administer and enforce the newly enacted minimum wage law.

It is imperative for business owners to stay abreast of such changes made at the Legislature in order to ensure that their business is compliant with the latest laws and regulations. The nuances regarding labor law are many, varied, and oftentimes complex. It is advised that business owners consult with knowledgeable and experienced legal counsel to ensure the adoption of policies and practices that are within the bounds of all federal, state, and local labor laws.

See the article at: NNBVhttps://www.nnbusinessview.com/news/changes-to-nevadas-minimum-wage-law-what-employers-need-to-know/

Joel W. Locke Elected to Nevada State Bar Board of Governors

Joel W. Locke, attorney with Allison MacKenzie Law Firm in Carson City, Nevada
Joel W. Locke

Joel W. Locke, a partner at Allison MacKenzie Law Firm, has been elected to the Nevada State Bar Board of Governors. He was elected and sworn in on Thursday, June 27, 2019 at the State Bar of Nevada Annual Meeting which was held in Vail, Colorado. Members of the Board help promote the integrity of the legal profession, encourage professional growth, and provide the opportunity to give back to the community.

The Board of Governors is comprised of 15 members representing the four state districts defined in Supreme Court Rule 81. Elections for the Board are held annually, and governors are selected by the members of their districts to serve two-year terms. Also serving on the Board is the immediate past president and two ex-officio members representing the William S. Boyd School of Law and the Board of Bar Examiners.

The Board of Governors assists in implementing administrative functions of the State Bar, establishing policies and procedures, and affecting rule changes; the Board also takes legislative positions relative to the administration of justice, and oversees the Bar’s fiduciary responsibilities. The State Bar of Nevada has been governing the legal profession, serving its members, and protecting the public interests in Nevada since 1928.

Regarding his election, Joel W. Locke stated: “I am honored to serve as Carson City’s District Representative on the Board of Governors and am humbled by the support of my colleagues in the Carson City legal community. I look forward to giving back to the legal profession and serving with the esteemed members of the Board during my term.”

Joel W. Locke joined Allison MacKenzie in 2007. A native Nevadan, Joel Locke graduated from the University of Nevada, Reno in 2000, and then obtained his law degree from Gonzaga University School of Law in 2006. Subsequently, he was admitted to practice law in the State of Nevada in 2006. Joel’s areas of legal practice include: Family Law, Probate Law, Guardianships, Employment Law, and more. Allison MacKenzie Law Firm is proud of Joel’s election and dedication to serve on the Board of Governors. The firm remains dedicated to civic service and encourages its team of talented attorneys and staff to support various community-minded organizations in the area.

Carson City’s Ryan Russell named to list of top ranked family law attorneys

Ryan Russell

Carson City attorney Ryan Russell was among several Nevadan family law attorneys recently named by the National Academy of Family Law Attorneys on its list of nationally-ranked family law attorneys. The NAFLA recognizes the top family law attorneys in each state with the intent of helping consumers select well-qualified professionals when legal representation is needed.

Candidates must be licensed, in good standing with their local bar association and nominated by either a licensed practicing attorney or one of the in-house staff researchers. In addition, each attorney must have achieved meaningful professional recognition and earned the respect of their clients and peers.

In the final stage of the NAFLA’s four-step selection process, NAFLA’s processing committee selects a portion of the nominated attorneys to advance to the final selection stage, reviews the finalists and selects the official award recipients from each state. The rankings are independent and free from commercial influence.

See the article

Marijuana and employment law: an ever-changing legal landscape

By Emilee Sutton

The legalization of medical marijuana in 2001 and recreational marijuana in 2018 has created significant uncertainty for Nevada employers and employees alike regarding their respective rights and obligations in using marijuana and regulating its use. Specifically, can employees who possess valid medical marijuana cards be terminated for positive drug tests? And what affect, if any, does the legalization of marijuana for recreational use have on an employer’s ability to prohibit its use? One court in Las Vegas has been tasked with answering the former question, while the Nevada Legislature has attempted to bring clarity to the latter.

In order to understand the current legal landscape, employers should be aware of NRS Chapter 453A governing the medical use of marijuana in the State of Nevada. The most significant provision for Nevada employers is NRS 453A.800, which requires employers to attempt to make “reasonable accommodation for the medical needs of an employee who engages in the medical use of marijuana if the employee holds a valid registry identification card, provided that such reasonable accommodation would not:

(a) Pose a threat of harm or danger to persons or property or impose an undue hardship on the employer; or

(b) Prohibit the employee from fulfilling any and all of his or her job responsibilities. NRS 453A.800(3) (emphasis added).

NRS 453A.800(2) also states that Nevada medical marijuana laws do not “require any employer to allow the medical use of marijuana in the workplace.” However, NRS 453A.800 has created significant ambiguity for employers and employees because it does not authorize any administrative agency to enforce it, create a private cause of action for employees to enforce it, or identify the liability of an employer who violates it. Moreover, the statute does not explain what steps an employer must take to reasonably accommodate an employee’s medical marijuana use. Fortunately, the currently-pending Nellis v. Sunrise Hospital case may provide much needed clarity on this very murky area of the law.

On September 22, 2017, Scott Nellis, a registered nurse, filed suit against his former employer, Sunrise Hospital, alleging claims of wrongful discharge and violations of NRS Chapter 453A based on his termination following a positive drug test. Years prior to his termination, Nellis was attacked by a patient at Sunrise Hospital and suffered from a fractured vertebra. As a result, Nellis applied for and obtained a medical marijuana card. In February of 2017, Nellis was again attacked and injured by a patient while on duty. In the emergency room, Nellis provided a urine sample, which tested positive for the presence of marijuana. Sunrise Hospital then terminated Nellis on the basis that it suspected he was working while impaired in violation of hospital policy.

While the case is likely far from resolution, it is significant that Nellis’ claims have survived the motion to dismiss filed by Sunrise Hospital. The case is currently set for trial on January 6, 2020 in Department 8 of the Eighth Judicial District Court in Las Vegas, Nevada. Employers should closely monitor this case, as its final decision will likely have significant ramifications for employer obligations and policies related to medical marijuana use.

The Nellis case also begs the question of whether employers can avoid issues with Chapter 453A by refusing to hire anyone who tests positive for marijuana in a pre-employment drug test, since Chapter 453A only applies to employees. This issue is further complicated by the fact that the recreational use of marijuana has been legalized, and a person may test positive for marijuana days or even weeks after consumption. During the most recent legislative session, the Nevada Legislature clarified the issue of marijuana and pre-employment screening. Assembly Bill 132, approved by Governor Sisolak on June 5, 2019, prohibits employers from “fail[ing] or refus[ing] to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” AB 132 does contain exceptions for prospective employees applying for positions as firefighters or emergency medical technicians and positions that are safety-sensitive or require an employee to operate a motor vehicle. In addition, the provisions of AB 132 do not apply “to the extent that they are inconsistent with the provisions of an employment contract or collective bargaining agreement” or federal law or “to a position of employment funded by a federal grant.”

Notably, AB 132 does not distinguish between medical and recreational marijuana users, meaning an individual does not need to hold a valid medical marijuana card to be protected by the new law. It is also important to note that AB 132 only applies to pre-employment screening. Employers may still prohibit employees from engaging in recreational marijuana use and may terminate an employee should they test positive for the presence of marijuana. While AB 132 does not become affective until January 1, 2020, employers should consult with qualified legal counsel to ensure the adoption of policies and practices that conform to the new law.

See the Article at NNBV

Ryan Russell Named Legal Elite

Ryan Russell

Ryan Russell, partner at Allison MacKenzie Law Firm, was recently announced as one of the Top Attorneys in Northern Nevada by Nevada Business Magazine. This year, the Legal Elite process is in its 12th iteration, and the publication releases its Legal Elite list highlighting the top attorneys in the state.

Polling for the 2019 publication began in mid-February, and nearly 5,000 nominations were submitted by licensed attorneys within the state. Each submission then went through an extensive verification and vetting process resulting in the top attorneys selected their peers.

The Legal Elite list includes only the top 3 percent of attorneys in the state broken down by location. In addition, Legal Elite includes special lists ranking Nevada’s best “Up and Coming” and best government attorneys. The process is rigorous and each nominee must navigate several levels of scrutiny before obtaining final approval to appear on the list. After closing the nomination process, each ballot is individually reviewed for eligibility and every voting attorney is verified with the State Bar of Nevada.

Ryan joined Allison MacKenzie in 2004 and has dedicated his career to serving the communities of Northern Nevada. He has served the community as a Judge Pro Tem for the Carson City Justice and Municipal Court, and serves as Carson City’s representative on the State Bar of Nevada’s Board of Governors. Further, he volunteers his time to the Boys and Girls Club of Western Nevada and served as President of the Board of Directors in 2009. He is also active in the Carson City Rotary Club and coaching youth sports.

Ryan offers his clients a comprehensive background of practice areas. As an attorney and partner with the law firm, he practices in the areas of litigation, administrative law, business law, and family law. He received his Bachelor of Science in Business Administration and Management from the University of Nevada, Reno in 2000. He then pursued a degree in law and graduated from University of Nevada’s William S. Boyd School of Law in 2003. That same year he was admitted to practice law in the State of Nevada.

Congratulations to Ryan and for his accomplishments and being selected as 2019 Legal Elite.

Implementing an Employer-Sponsored Optional Volunteer Program?

By Jennifer McMenomy

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.

See the article at: NNBV.

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