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When is an employee really a volunteer? August 25, 2006 Excerpted from Tennessee Employment Law Letter, written by attorneys at the law firm Miller and Martin The warm weather months bring a host of opportunities for fresh-air charity work, from outdoor cleanup projects to fence painting to tree planting. While its certainly laudable for you to encourage your employees to roll up their sleeves and participate in those sorts of activities, remember that some of the time spent in those efforts may be compensable work time. (But remember, those concerns apply to nonexempt employees only. Work time — including volunteer time — generally isn't an issue for bona fide exempt employees, whose salaries typically cover all hours worked.) Q: Our computer software company encourages our employees to get involved in the community, often posting notices and forwarding memos and e-mails describing various volunteer opportunities. In fact, several of our employees are working on a Habitat for Humanity construction project over the next three weekends. We hadn't thought about compensating them for that time since they've volunteered to work on the project during their off-duty hours. Should we have any concerns? A: Based on the facts you presented, probably not. Federal regulations state that when employees freely volunteer to work for charitable or public purposes during off-duty hours, that ordinarily won't be considered compensable work time. That's true even if the employer encourages employees to engage in those sorts of activities. Time spent in such activities at the employer's request or under the employer's direction or control, however, must be compensated, so be careful that such efforts don't turn into organized, company-directed events in which employees are required (or heavily pressured) to participate. The U.S. Department of Labor (DOL) has said that "any coercion or pressure" from an employer to get employees to participate in volunteer activities renders the time spent as compensable work time. Q: Well, that's good news because that same Saturday, we have another group of employees who have agreed to provide free computer training to underprivileged youth at our local community center. It's a pretty neat deal. We get to post our banner at the community center during the event, and one of the event sponsors, a local trade magazine, has agreed to let us run a couple of free ads in recognition of our participation. A: Slow down a minute. There are several factors here that distinguish this volunteer situation from the previous one. First, the employees who are volunteering seem to be providing services awfully similar to what they do for you. Second, your company clearly is obtaining some benefit as a result of their volunteer efforts. In such a situation, even if the employees' participation truly is voluntary, the DOL might find it to be compensable work time — it's a close call. But again, if these are bona fide, exempt, salaried employees we're talking about, it isn't a problem. Q: Hmmm, interesting. Say, we'd thought of making it mandatory for all our employees to do at least 10 hours of volunteer service each year. In fact, we've discussed including that as a separate item on performance evaluations. How does that sound? A: You're really getting into dangerous territory here. Federal regulations and a recent opinion letter issued by the DOL make it clear that when an employer links an employee's continued employment or compensation to volunteer work, it becomes compensable work time. So while it's fine to encourage volunteer work and to use an employee's volunteer efforts as one criterion to assess performance, you should offer alternative methods for an employee to achieve an acceptable rating on that aspect of his performance evaluation, particularly if it's linked to his compensation. And you should never fire or discipline a nonexempt employee for failing to perform volunteer work. Q: Gotcha. One more thing — our building is showing some serious wear and tear. A group of employees has offered to come in this Saturday to clean up and paint. Isn't that nice of them? A: Very nice. But if there are any nonexempt employees in the group, you need to track their time and pay them (though not necessarily at their regular hourly rate), including time and a half for any overtime hours worked. Even if their efforts truly are voluntary and they have no expectation of getting paid, those employees clearly are providing a benefit to you, and if push came to shove (meaning an audit or claim), their time would be considered compensable work time. Copyright © M. Lee Smith Publishers LLC. This article is an excerpt from TENNESSEE EMPLOYMENT LAW LETTER. TENNESSEE EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but to provide information about current developments in Tennessee employment law. Questions about individual problems should be addressed to the attorney of your choice. Additional resources on HRhero.com Subscribers Area Resources (available to Employment Law Letter subscribers)
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