Tag Archives: Volunteers

01.24.22
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Keep Litigation Far Away: Tips for Nonprofits so Volunteers Won’t Be Considered Employees

Jonathan photographed in April 2021. (Photo: Xben911 via Wikimedia Commons, CC BY-SA 4.0)

Jonathan turns 190 this year, but you won’t see his mug on the cover of People. That’s because Jonathan lives a solitary life in St. Helena, a remote volcanic island in the South Atlantic. Once a week, he is hand-fed cabbages, cucumbers, carrots, and apples to boost his nutritional intake. Jonathan is a giant tortoise, and he is believed to be the oldest living land animal.

You could volunteer to help feed Jonathan, but St. Helena is hard to get to. The island is 1,200 miles west of Africa, and commercial air service is limited. Sea transport is available on the RMS St. Helena, but it takes five days to get there from Cape Town.

If you want to volunteer closer to home, however, opportunities abound. Nonprofits thrive on the services of volunteers. But every once in a while, we hear of a volunteer who later claims to be an employee and who wants to be paid.

A recent case against the American Film Institute serves as a good reminder that expectations should be clearly established when working with volunteers.

When engaging volunteers, consider asking all volunteers to sign a short acknowledgement. Consider including these types of representations in the acknowledgement, customized to fit the specific project and organization:

  • That this is volunteer work and is purely optional;
  • That the decision to work is made freely, without pressure or coercion;
  • That the volunteer does not expect to be paid; and
  • That the work is being performed to support a nonprofit organization, and is being performed for [insert] objective [e.g., public service / religious / charitable / humanitarian / civic / some other similar non-commercial].

If the work could result in physical injury or damage to the individuals’s clothing or other property, consider adding that the individual acknowledges the risks (e.g., bodily injury, damage to personal property), knowingly assumes these risks, and will not hold the nonprofit responsible if those things occur.

Please don’t use the exact language above. This is not legal advice or a template. I’m just giving you ideas here — for the greater good. Work with counsel to draft an appropriate agreement.

Be sure the volunteer work is really voluntary. The voluntariness of the work was at issue in “the Lord’s Buffet” case a few years back, which has quite the backstory.

Volunteer service is important, and nonprofits unfortunately need to protect themselves against the occasional ungrateful troublemaker.

A simple acknowledgement can go a long way toward keeping litigation far away — like St. Helena and Jonathan, 1,200 miles from the nearest land mass.

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© 2022 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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04.26.18
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Restaurant Can Decline to Pay Workers if They Are Church Volunteers, Says Appeals Court

Angley

Serving God by serving mashed potatoes

According to TV evangelist Rev. Ernest Angley, the Cathedral Buffet is “the Lord’s buffet,” and members of his church, Grace Cathedral, are expected to volunteer when Rev. Angley asks. Although the church’s restaurant had paid employees, it was sometimes short-staffed and looked to parishioners to help — as unpaid volunteers. Rev. Angley has been controversial in the past (google “Rev Angley never actually touched his …”), but this controversy is SFW.

The Department of Labor sued the church, claiming that the volunteers were doing the same work as the restaurant’s employees, and therefore they had to be paid like employees. The Fair Labor Standards Act (FLSA) requires at least a minimum wage.

The Sixth Circuit Court of Appeals, however, has sided with Rev. Angley. The Court ruled that if workers do not expect to get paid, they are volunteers and not employees, which means they are not covered by the FLSA.

There is one exception, though. If someone is coerced to work for free, the volunteer rule does not apply. The Court noted that when the restaurant was short-staffed, Rev. Angley would “ask” for volunteers.

But here’s what we mean by “ask”: He would instruct churchgoers that “[e]very time you say no, you are closing the door on God.” He suggested that church members who repeatedly refused to volunteer at the restaurant were at risk of “blaspheming against the Holy Ghost,” which was an unforgivable sin in the church’s doctrine.

Is that coercion?

Yes, maybe, but it’s not the kind of coercion covered under the law. The Court ruled that the coercion exception applies only to economic coercion, not spiritual coercion. To summarize:

  • If working for free is required by your powerful boss, that’s economic coercion. Illegal.
  • But if working for free is required by a higher power, that’s spiritual coercion. Not illegal.

The Court of Appeals stressed religious freedom. If church member volunteers have no expectation of being paid when working for a church-run enterprise, they are volunteers and not employees. The expectation of compensation “is a threshold inquiry that must be satisfied before” applying the FLSA.

The decision reversed a judgment of nearly $400,000 against the church.

Trip advisor reviews of the Cathedral Buffet, as expected, are hilarious, with Duane H of Stow describing the buffet as “akin to nursing home food.” Hooliganmom accused the mashed potatoes of being “fake” and says she preferred her high school cafeteria.

Unfortunately for curiosity seekers (or volunteers) living near Cuyahoga Falls, Ohio, the buffet is now permanently closed.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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09.28.17
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For the Greater Good: When Do You Have to Pay Volunteers?

One of my favorite movies is Hot Fuzz, the story of an overzealous London policeman (Simon Pegg), who transfers to a small town where things are not as they seem. Throughout the movie, various characters declare that something is being done “for the greater good.” Watch the movie. I won’t play spoiler. After you watch, go to imdb.com and read more about all the subtleties you may have missed. Trust me on this one.

Anyway, this is the part of the blog post where I segue from a totally unrelated pop culture reference to something related to employment.

Today we’ll talk about volunteers — you know, those who perform work “for the greater good” (nailed it!).

Where is the line between volunteers and employees, and when must volunteers be paid?

The Department of Labor (DOL) is pretty tough when it comes to determining Who Is My Employee?  As explained here, a worker not in business for himself/herself is usually presumed to be an employee under the Economic Realities Test.

The DOL, however, recognizes an exception for work that is truly volunteer work — so long as it’s not wink wink nod nod really employment.

What’s the difference?

Continue reading →