November 21, 2013

Employee Volunteers Might Cost You Anyway…Even if it’s for Charity

Is this woman a volunteer if she was paid?

I can hear your indignation now: Do I really have to pay my volunteers? Why would I have to pay a volunteer? It’s charity, for Frank’s sake! What kind of world is this, anyway?!

When it comes to answering whether your team can agree to work for free, my typical response is: you say “tomato,” the DOL says “hours worked.” You can’t get out of paying your employees simply by calling them volunteers for the day – even if that day involves charitable work! 

There is a very limited set of circumstances where your employees will be considered true volunteers – and you don’t need to compensate them for their time.

An employee’s participation in an event can be treated as unpaid volunteer work only if: (1) the event is outside the employee’s normal working hours; (2) the event is for a civic or charitable purpose, and not for the primary benefit of the employer; and (3) the employee is freely volunteering to participate without coercion from their employer.

The easiest way to demonstrate where the problem usually lurks is with a couple short examples. One is a urologist’s office and the other is a dental practice.

This friendly neighborhood urologist’s office traditionally participates in an annual 5K run for charity. Each year, they raise funds for cancer research by taking part in a nonprofit-hosted event held on a Saturday at a local park. Employees are not required to participate, but those who do might run/walk the race, hand out water, or help with setup and teardown.

Now let’s skip tracks for a minute. Our other example, the dentist’s office, designates a free dental day once per year so that members of the community can receive services that they otherwise can’t afford.  Leading up to their event, management asks employees to volunteer their services and participate in this event.  The event is advertised on local radio and in the local newspaper to raise awareness and to generate good press for the office.  If employees volunteer their services, they are expected to meet the same standards of care normally required by the office, including treatment quality, recordkeeping, and patient service.

Sounds straightforward so far, right? To keep things simple, both practices make it clear that no one is required to help out at these events. Both practices provide a sign-up sheet and take a step back. No one who has declined participation has ever been fired for not attending, and no one has ever been told that “volunteering” might help them get a promotion. Neither of these events sound like a problem…or do they?

So, what’s the difference? What if I told you that these scenarios leave the dental office on the hook for paying their non-exempt employees, but not the urologist’s office? What the heck, right?

The urologist’s employees are volunteering for the charity that hosts the 5K, on a Saturday when they normally don’t work, and aren’t being required by their employer to perform any specific task while there.

By contrast, the dental employees are volunteering directly for their employer, and the office is receiving the benefit of goodwill in the community. The event is during normal working hours, and some employees are actually missing out on a normal day’s worth of pay. It’s wonderful that these free services are being offered, but the business choosing to forgo patient payment doesn’t mean that they can have their staff provide free labor.

What’s an employer to do if they want to provide free services to the community? Your first step should be to do it through an established charity. The dentist could look into partnering with an organization like Dentistry from the Heart. The free dental day can still be hosted at their office, but it should be taking place on a day the business is normally closed so that an employee’s participation isn’t cutting them short on working hours.

 Friendly Disclaimer: This information is general in nature, and is not intended to replace good counsel about a specific issue with either your attorney or your favorite HR expert. Questions about a specific circumstance, or how your medical or dental employee handbook should handle volunteerism? Call CEDR anytime at 866-414-6056.

 

 

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 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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Please note: CEDR Solutions specializes in providing expert HR support to owners and operators of independently owned medical and dental practices.