Episode 306: Team Volunteering Programs – Are They Paid?

Episodes like today’s are where our podcast gets its name. Maybe you just read the title of today’s episode and you’re thinking “Wait, what? That HR question makes no sense!” If so, welcome to the podcast! That feeling of confused annoyance that you’re experiencing right now? Totally normal. Join Paul and CEDR Solution Center Advisor Grace Godlasky as they explain why the employee volunteers at your charitable event might not really be “volunteers”, as far as the Department of Labor is concerned. We have lots of other WTHJH episodes you can listen to as well, and once you’ve listened to a few, concepts like this will just leave you smirking lightly in disbelief, like Jim from The Office.  

If you read the title and thought “Geez, is it Tuesday already? Okay Paul, make it make sense”, then it’s great to see you back! So yeah, even if your employee doesn’t want to be paid for working at your charitable event, there’s a whole 3-factor test that needs to be applied under the Fair Labor Standards Act to determine if it’s even maybe okay to let them volunteer. This week’s episode also has some pretty delicious-sounding food discussion in it though, and Grace is always a fun guest, so there’s no time like the present to queue this episode up and buff your HR Nerd credentials.

Transcript

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

Grace: Hi, Paul. It’s been a while since we’ve done a podcast together.

Paul: Has been great. It’s been a while. You’re in town.

Grace: I’m in.

Paul: It’s good to see you, Grace.

Grace: Good to see you. And I want to talk about good deeds and charitable events. Volunteer work, and things like that. You did a podcast episode a little while ago with a charitable foundation, and we get a lot of questions in the Solution Center for people who want to take their team out, do some good for the community without being aware that there are some rules and laws surrounding it.

Grace: And it’s counterintuitive because I think people feel like, well, I’m doing good, right? And so I should be able to do the good the way that I want to do good, which makes total sense. But that’s not the whole story. So I wanted to kind of cover the rules. They’re not that complicated, but it is a risky area if you don’t know about them.

Grace: Right. And rather than go through the dry rules, what I wanted to do is drag you out a little bit, Paul. OK. We’re going to talk about your personal life. So a lot of people, and I’ve known you for a really long time, they don’t know you’re really like a good person deep, deep down.

Paul: Well, I’m glad you did that.

Grace: You spent a lot of your time doing good. So I want to ask you, where do you spend most of your Tuesday afternoons?

Paul: Oh, that’s a loaded question. I spend my Tuesday afternoons early evening at a local women’s shelter. We have a shelter here called Sister Jose’s. It is a shelter. It’s an overnight shelter. But they provide services throughout the day. So they feed the women who come in three meals a day. It’s not a residency, so you can’t stay night after night unless you win the lottery.

Paul: And the lottery is every day. They call 44 names and they can stay overnight. And of course, it’s just a wonderful organization. And I’m just one little, you know, tying one little cog in that wheel that makes that thing run. But I spend it cooking. I used to be a chef. A long time ago, I kind of faked my way into being a chef for three or four years.

Paul: And I have a passion for it. So I go in with one other person, sometimes a couple of other people, and we cook 44 elevated meals every Tuesday.

Grace: That’s what always impressed me. What you do over there is that, you know, you think I’m going to cook for the shelter and you think, OK, I’m making supper, making mac and cheese and making hot dogs sometimes. But you are making ramen and braised short ribs. And what else do you do? I don’t even it’s they’re really good restaurant quality meals.

Paul: Yeah, we did chicken katsu last night.

Grace: Oh, my God.

Paul: Fried chicken with some really nice basmati rice and a curry down the middle of it. And they made them just a killer salad.

Grace: Come on. I mean, yeah, that’s incredible. So, you know, if you were to say, hey, Grace, I do this every Tuesday or on Tuesdays, you want to come along, you know, it’s a good cause. And I say, OK, Paul, I’ll come. Right? Do you have to put me on the clock for that or.

Paul: You know, I don’t. Yeah, because, well, first of all, I make it clear that this is something I’m doing. If you’d like to go do this with me, you can do it. The other thing that makes it really clear that I don’t have to pay you is that I don’t do this for the benefit of CEDR. Right. And I’m not asking you to come as an attorney or as an adviser or as a manager.

Paul: And I’m not asking you to do anything that you do for me at CEDR. I’m saying, do you want to come over and would you like to cut some vegetables and wash dishes and help me get through this meal? So there’s like a disassociate this gets even easier. There’s a disassociation.

Grace: That’s exactly right. Yeah. And I’m going to walk you hypothetically. So what if it was CEDR Charity Day or a cooking hour and are not cooking up? We’re out in the world cooking. We’re all going to wear our CEDR gear. It’s a CEDR photo op. It’s going to go on our website, which is not for the record, what you do this very under the radar.

Grace: I had to make you talk about it, but if you did this very above on the radar, and it was out here and we were, you know, profiting off of it and building our business up off of it to foster goodwill in the community, would you have to pay me that?

Paul: I would. Then I have to pay you because there’d be a couple of things. Attendance would be more compulsory. It would be pretty clear that and understood that this is a program that this company does. And if you work here, it’s probably a good idea for you to do it. And since you’re not volunteering and I’m air quoting for those people who aren’t watching us, it’s clear that it’s not voluntary.

Paul: And so we’re going to go out, we’re going to do good. But the key there is that you’re going to be wearing our t-shirts and we are going to use it in multiple ways, not, you know, not just to make us look good, but just for me to share. I think when you share that you do charitable work, it inspires other people to do it because that’s what inspires me to do charitable work.

Paul: And I see people doing what I see our members doing. Gosh, I see your members do so many things, I mean, travel to other countries. Yeah. Shut their practices down, hire, associate sometimes to run their practice so they can go to another country and stay there for three months and do the work that needs to be done to help people there.

Paul: So I’m always inspired by other people’s charitable, you know, activities.

Grace: It’s true and that’s why I wanted to have this conversation. Sometimes I get a call and somebody I’m recommending pays their team for a charitable event and it doesn’t make any sense. So the law or the rule and I don’t want to overcomplicate it, but it’s just a federal wage and hour rule and it’s the primary beneficiary test.

Grace: It’s a three factor test. But basically the event has to be outside of the employee’s normal working hours, not for the primary benefit of the employer. And I think that’s the one that normally is the kicker. Yeah. And the employee has to be freely volunteering, you know, without coercion or pressure or anything like that. So, you know, the one that’s the most common is sort of a free services community day where you open your doors.

Grace: Typically when the people are doing their normal job, the work they normally do every day, if that’s cleaning teeth or administering medication.

Paul: Intake, whatever it is.

Grace: Intake, that’s probably paid time. Yep. Doesn’t have to be their regular rate of pay.

Paul: They could take a lower rate of pay.

Grace: They could take like, you know.

Paul: We did this thing where we did this podcast where you can’t pay people for chicken and it was, the main point of it was if there’s an employee, they can’t give up their rights.

Grace: Yes.

Paul: And so that’s the thing that I think applies here. Once again, this is like this overall thing as an HR person that you can learn from is an employee that can’t give up their rights. So if the FLSA says you have to pay a person under the conditions that you just mentioned, even if the employee says no no, no, no, I don’t I definitely don’t want to be paid here.

Paul: Don’t pay me. I won’t accept payment. You have to pay them. Yeah. They can’t, they can’t sign it away. They can’t give it away.

Grace: That’s exactly right. Although I think if it was the thai chicken that you were describing from last night, i might accept that it is just like, you know what? I will be paid in Thai chicken.

Paul: I’ll take the Thai chicken. Well, you know, another way that we used to, we see this. So again, just to give everybody another little twist. So maybe we’re doing dentistry from the heart. And I don’t even know if that organization’s still around, but they were big a long time ago when we first got started. So say you’re doing an event for density from the heart and you’re doing it.

Paul: It’s somebody else’s. So your team is going to go to another dental practice. Maybe that practice has 17 operators, right? And so several of you have gotten together you’re going to do a two or three day event and you’re going to rotate your teams in and out, and you’re going to do this, you know, big community event, which God bless those of you who do that kind of thing as your teams rotate in.

Paul: Look, if they’re wearing your scrubs and you’re in the news and you’re part of the radio promotion, and when the posters go up announcing it, your name’s on there. This is a paid event. Now your hygienist comes to you and says, so-and-so over at someplace else. Is going to be doing some charitable event. And they’ve asked for hygienists.

Paul: Mm hmm. And I’d like to take Friday off to go do that. A, you don’t have to pay them that. And B, even though they may wear their scrubs. And by the way, we have another compliance person here. If she was here, she’d be hitting me, even though they may wear your scrubs. Your name may be on that.

Paul: I think at that point they’re doing that on their own. It doesn’t have anything to do with your practice. Yeah, not the other practice is promoting your practice you just have professionals going out to do what it is that they do. And I just thought I’d give that example because that example happens as well.

Grace: It does and I think that going back to the three factors, though, it is freely volunteering. It’s outside of their hours and it’s not for your primary benefit. Yeah. So I think that that really does pass that test. Um, other events that come up a lot where I think it obviously is unpaid and passes that test are kind of the 5Ks or Habitat for Humanity type things.

Grace: If it’s just, hey, we’re doing this, if you want to participate and come yeah, but it’s not driven by that, you know, private beneficiary.

Paul: Let me, let me throw the curve there on the, on the 5K, on the big 5K as they round the curve for the 3K, there’s water station there, your tent is up, your team is there in their scrubs. All your banners are there and you’re handing out branded… Well, this doesn’t have to be a part, but you’re handing out branded water for your practice, right?

Paul: That’s paid.

Grace: Admin. Absolutely.

Paul: They can’t volunteer their way into that.

Grace: So it’s YOU that’s what I love about these is you change one fact and you get that different outcome. But hopefully knowing that these rules even exist helps people to be a little bit more mindful with planning and still do charitable things.

Paul: Still do the charitable things. And as we said everybody, we didn’t stick to it very much, but we have guidance that we can give you. That is you can actually get like, say, a hygienist who’s earning an average $75 an hour in production or something or something along that she could volunteer for your event for minimum wage.

Grace: Yes. Yes.

Paul: And that would be fine. Yes. Go. I almost went down that rabbit hole without forgetting to do the weighted average anyway. If you’re listening, everybody, that’s another episode. That’s another episode. So this has been really good. I’m very glad. Especially, you know, it’s just good to be able to talk about this.

Grace: Yeah, doing good in the community is so inspiring and it’s always such a burst of the bubble when, you know, you forgot to do that and now you’re going to be in trouble. And this will hopefully help keep them on the right side of that rule.

Paul: Yeah. So, Grace, I want to end this today with a principle. I just started it this morning. I was like, I’m going to there’s nobody better to do this with than you. We learned this a long time ago. This thing where we sometimes have longer meetings, we buffer them with positive focuses. So we say, OK, everybody, we have this meeting.

Paul: Let’s get a positive focus from everybody. And it gets a little tongue in cheek sometimes. And it was like my cat didn’t die yesterday. And it’s like, you know, whatever. But the thing about positive focus, everybody in meetings is it’s hard to come in and start complaining when you’ve had to say something positive and think in a positive way.

Paul: It also, I think this time of year, we’re recording this around the holidays. It also, I think, creates being thankful, truly thankful for things from a perspective. Let’s take just a second. We’re going to end this podcast. Oh, even though we don’t need it, it’s not like a complaining session with a positive focus. And I and I and I and I have mine.

Paul: Yeah, it’s the first time in a long time here at CEDR where we have almost all of our people here because Grace has traveled in and we have everybody here and we’re able to kind of create fellowship between us. We’re having good meetings. It’s really been truly wonderful to spend time with one another. So that’s my positive focus, it feels really good.

Grace: It does.

Paul: It feels really, really good. And I don’t know why I just do. It feels good.

Grace: That’s just good team energy. Yeah.

Paul: Can’t get that. When everybody’s spread out all over the country or sequestered in their living.

Grace: Rooms, you can’t and maybe some common goals. Yeah, the time of year. Oh, now how do I follow that with a positive focus? But it’s I, you know, I always enjoy these podcasts with you, Paul, and being here is absolutely a positive focus. But because it’s a podcast, you don’t get the visual effect.

Grace: I did travel in from Tucson and have had such a positive week interacting with our team. But driving home last night, the sky was so clear, so dark. If you’ve never been to Tucson, the stars just are so bright. It’s jarring if you haven’t seen them in a while. I saw not one but two shooting stars I kid you not.

Grace: And it just felt like that little Tucson magic and that little, little CEDR trip magic. So that’s got to be my follow on.

Paul: That’s very nice. We do have a different sky both in the daytime. Yeah. All right, Grace, that was awesome. Thanks.

Grace:  Thank you.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, and you’d like us to discuss it on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.

Mar 7, 2023

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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