New Federal Labor Standards Act rules that go into effect December 1, 2016, will add 4.2 million employees to the roles of non-exempt employees thereby making them eligible for overtime. The new rules also address use of volunteers by non-profit organizations.
Generally, a volunteer will not be considered an employee for purposes of the FLSA if the individual volunteers freely for public service, religious, or humanitarian objectives, and without contemplation or receipt of compensation. In other words, the person who works in a
volunteer role must be a bona fide volunteer.
However, the analysis under the new rules does not end there. The Department of Labor has suggested that a volunteer should only work on a part-time basis. In fact, it has decided that a volunteer “should not displace employees or perform work that would otherwise typically be performed by employees.” In addition, paid employees, under the Department of Labor’s interpretation, may not volunteer to provide the same type of services to the non-profit organization that they are otherwise typically employed to provide.
Volunteers can be part of a solution to managing overtime costs at a non-profit, however, it now calls for vetting with legal counsel to establish rules that can potentially withstand governmental scrutiny.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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