How legal is your volunteer program?
During this year’s SXSW festival, more than 3,000 volunteers donated time in exchange for incentives like wristbands, badges, and swag. As local public radio station KUT recently reported, the for-profit festival may not have their ducks in a row when it comes to the legality of their volunteer program. The report references a Salon article from Charles Davis, claiming that SXSW violates labor laws and minimum wage statutes.
Obviously SXSW has stricter standards than standard charitable organizations because of their unique timeframe, abnormal publicity,and special volunteer incentives, but all intern and volunteer programs still need to follow the Fair Labor Standards Act.
The nonprofit risk management center offers advice on how in line your nonprofit is with the law, but below are links to the Fair Labor Standards Act.
While there are a number of factors that the Department of Labor uses to determine if someone is a volunteer or unpaid employee, no single factor drives their decision over the others. They consider the following:
What is a Volunteer? According to the Department of Labor, a volunteer is: an “individual who performs hours of service… for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.”
Is your org a registered nonprofit charitable organization with the IRS?
Is the activity less than a full-time occupation?
Are the services offered freely and without pressure or coercion?
Are the services of the kind typically associated with volunteer work?
Have regular employees been displaced to accommodate the volunteer?
Does the worker receive (or expect) any benefit from the entity to which it is providing services?
A volunteer position at your nonprofit is likely to be regarded as “ordinary volunteerism” and safely exempt from the minimum wage requirements of the FLSA if you can answer “yes” to the first four questions and “no” to the final two questions.
Many nonprofit organizations are retooling their intern and volunteer programs to better fall in line with FLSA, especially for full time volunteers and interns. Volunteer and intern job descriptions and a clear volunteer orientation are quick ways to avoid any FLSA trouble, but be careful about any incentives that could come across as payment for services rendered.