A recent employment and social activism trend is to encourage workers to participate in volunteer and non-profit work programs. Many San Diego employers have jumped on the bandwagon. An example would be an accounting or law firm encouraging employees to offer free or reduced-cost services to the less-advantaged. One question that has arisen is whether an employer must pay the worker for the time spent participating in such an employer-sponsored volunteer program. The federal Department of Labor (“DOL”) recently issued a Letter Opinion on this topic. See Letter here; FLSA 2019-02.

The guidance provided by the Opinion Letter is that an employer does not have to pay for the time spent under these conditions:

• Employee participation is completely optional
• There are no adverse employment consequences for workers who opt out
• The employer does not directly control the volunteer work
• The volunteers are paid their normal wages if the volunteer work is done during normal working hours and at the location of their primary employment

According to the facts described in the Opinion Letter, it is acceptable to incentivize the volunteer work. In the particular example under advisement, the employer provided a monetary award at the end of the year for the group of employees that had the “greatest community impact.” That money was then divided by the employer’s supervisors among the participating employees with the most money typically being given to the worker that volunteered the most hours. The reason for the letter to the DOL was that the employer was considering offering a mobile/smartphone app that would help track the number of hours volunteered.

Despite the DOL Opinion Letter, San Diego employers should take caution with worker volunteer programs even if the programs are voluntary. You should consult an experienced San Diego corporate attorney for advice and counsel. A company policy should be drafted and approved before your business embarks on a program like this.

There are several concerns to consider as well. First, even if your business says that there is no adverse employment consequence for opting out, there may be pressure felt by workers to volunteer. There may also be the appearance that refusing to volunteer will be punished. Remember that an “adverse employment consequence” can be the failure to be promoted or the failure to receive the same level of raise that someone else received. This is particularly true the more your business advocates for employees to volunteer.

Second, depending on the size of the incentive — the monetary award — volunteering might be seen as a substantial benefit that is denied to workers who fail to volunteer. This is another factor that might lead to the feeling of pressure to volunteer and the appearance that refusing to volunteer will hurt a worker’s chances for advancement.

Third, a so-called volunteer program becomes less and less volunteer the more an employer facilitates the volunteering. As noted above, control by the employer of the volunteering done and the hours volunteered makes the work more and more like “work,” which must be compensated. The proposed phone app to track volunteer hours is problematic as it now seems that the “volunteering” is more like “work” since the “volunteers” are being encouraged to “clock in.”

As can be seen, it is important to address potential legal issues if your business has or is contemplating sponsoring a volunteer program. This is why a company policy is important. Likewise, training for supervisors should be undertaken. If an employee asks: “Do I really have to volunteer?” it is important that the supervisor not hesitate and equivocate or offer something like “No, but it would be nice if you did and everyone else is volunteering.” That sort of statement begins to cross over into the territory of a “work requirement.”

Contact San Diego Corporate Law

For further information, please contact Michael Leonard, Esq. of San Diego Corporate Law. Contact Mr. Leonard via email or by calling (858) 483-9200. Mr. Leonard’s law practice is focused on business, transactional, and corporate matters. Mr. Leonard can help with employee-related matters such as employment contracts, drafting and/or reviewing company employee policies and procedures, creating and/or updating employee handbooks, and more. Like us on Facebook.

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