Volunteering in the Crossroads of Immigration and Labor Law
Volunteering is a vital part of American society and many academic institutions are enormously indebted to the true volunteers that make many programs possible — the volunteers in our hospitals who read to the patients, candy stripers, alumni volunteers that organize events, interns seeking to observe and learn business practices.…The list is almost endless. These activities are wholeheartedly (and rightly) encouraged. Care should be taken to make sure that volunteerism is not abused and does not abuse the Fair Labor Standards Act.
In order for the Fair Labor Standards Act (FLSA) to apply to a given situation, three things must exist:
- An employer
- An employee
- The conditions of employment
A volunteer is often viewed simply as someone who offers his or her services for free. Contained in the definition of "employee" above is also the FLSA guidance on volunteers, albeit in the context of employees of public agencies.
The regulations define a volunteer as: (29 C.F.R. 553.101)
- An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours. Individuals performing hours of service for such a public agency will be considered volunteers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4)(A) and (B) of the FLSA and the guidelines in this subpart.
- Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to "volunteer" their services.
- Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer.
- An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.
Essentially, the following test, which is adapted from the publication Negotiating the Legal Maze to Volunteer Service by Anna Seidman of the Nonprofit Risk Management Center, may be helpful in determining volunteer status:
- Are the services performed for civic, charitable or humanitarian purposes?
- Are the services entirely voluntary, with no direct or indirect pressure by the employer, with no promise of advancement and nopenalty for not volunteering?
- Are the activities predominately for the individual's own benefit?
- Does the individual impair the employment opportunities of others by performing work that would otherwise be performed by regular, paid employees?
- Does the "volunteer" provide services that are the same as services provided by a paid?
- Is there no expectation of compensation either now or in the future for these services?
- Do the activities take place during the individual's regular working hours or scheduled overtime hours?
- Is the volunteer time insubstantial in relation to the individual's regular hours?
US Citizenship and Immigration Service (USCIS)
USCIS has a slightly different definition of an employee that should also be kept in mind:
- An individual who provides services or labor for an employer for wages or other remuneration."
- Remuneration can include such innocuous things as reimbursements, food (coffee, doughnuts, pizza, etc.)
Employers who wrongly classify individuals as volunteers may be liable for:
- The payment of back wages
- Federal fines of $10,000 for violating wage and hour laws
- State fines of up to $10,000 for employing and individual without proper employment authorization
- Potential loss of federal research grants and contracts as a result of Executive Order #12989 and the inability to re-apply for federal grants/contract for 1–2 years.
Individuals found to have been working without appropriate employment authorization have violated the terms of their status and are subject to deportation. This could also negatively impact their plans to remain in the U.S.
"Managing" the Risk of "volunteers"
Institutions must have clearly defined guidelines that they follow regarding volunteers. These policies should establish the scope of any volunteer positions. It should state whether or not the volunteer is covered by workers compensation and what liability the institution carries with respect to its volunteers. Campus players to have involved in formulating/formalizing a policy on volunteering: University Counsel, International Students and Scholars Services, Human Resources.
From the NAFSA Region VIII Conference in Bethesda, Maryland – November 2002