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February 2006

The Fair Labor Standards Act and Other Obstacles to Progress

By Susan J. Ellis

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The job of legal, financial and IT staff is to listen to what we need and want to do and then help us to find the best and appropriate ways in which to do it.

Unfortunately, in the real world of volunteer management, these experts too often instead are our "no" people.   They tell us what we can't do rather than support our objectives.  Further, they do not expect their prohibitions to be questioned, let alone challenged.  

As advocates for volunteer engagement, we need to approach such specialized counselors as equal team members, remembering that we, too, have expertise to offer.  When it comes to volunteer management, our requests and plans should not be dismissed, since we may very well be right in insisting for more than a “no” reply.

What elicited this month’s Hot Topic was a cluster of e-mails and questions from workshop participants from several unrelated organizations, each asking me whether they should accept being forbidden from doing something with or for volunteers.  Some examples:   

I am facing the obstacle of not being allowed to have "administrative" volunteers… It has been told to me that the Dept. of Labor and Industry does not permit it because of the fact someone could be employed in the same capacity. 

I've been told that under no circumstances can an employee donate their time....
 
I’ve been told we’re not permitted to use volunteers in a retail store that is generating income for our organization, is that correct?

Our IT department won’t allow me to post current openings for volunteer positions online.

What makes me angry about these situations is the dismissal of the fundamental issue:  Does the organization want to engage volunteers in the most meaningful ways to serve clients and achieve its mission?  And, therefore, what are the consequences of NOT permitting some volunteer activity?  Our job must include raising this question anytime the volunteer program is forbidden from doing something with or for volunteers. Use the advice and information below to prepare yourself for a knowledgeable discussion rather than accepting the word “no” as the “final say.”         

The Fair Labor Standards Act

Most pronouncements about what volunteers can or can’t do are examples of "a little knowledge is a dangerous thing."  The legal or human resources staff quoted above are misinterpreting the law – they are taking what they "think" is the law and not doing any further research.  And while I’m about to discuss an American law, the principles for how a volunteer program manager needs to be an in-house advocate apply to any country.

There are countless examples of nonprofit and government agencies that have volunteers handling administrative, managerial, and clerical roles – just as they have volunteers handling highly specialized professional roles.    It’s probably true that every single activity that someone does somewhere for pay, someone else does somewhere as a volunteer.   So how can there be a fixed rule?  It’s situational, and therefore a legal or HR staffer ought to consider each proposed volunteer role on its own merits.

If you need further ammunition, consider:

  • Surgeons spending vacation time in developing countries to donate medical care, often side-by-side with paid doctors. 
  • Countless thrift shops and gift stores whose purpose is, indeed, to make money, and whose staff are volunteers.  Not to mention every fundraiser of any kind!
  • The fact that wealthy politicians choose to refuse their salary and so “volunteer” for their jobs (currently this list includes California Governor Schwarzenegger and NYC Mayor Blumberg, and has in the past included President Kennedy and Vice-President Rockefeller).
  • Communities in which there is a paid firefighting force in place during the daytime hours, which is then relieved at night by volunteer firefighters. 
  • Students doing unpaid “internships” in for-profit businesses large and small.

The Fair Labor Standards Act (FLSA, http://www.dol.gov/esa/whd/flsa/) is designed to stop employers from obtaining unremunerated overtime work hours from employees.  The guidelines actually do not speak about "outside" volunteers, but rather limit what an employee may do – even  if truly by choice – as a volunteer in the same setting in which s/he is employed.  The volunteer work must be different from the usual duties of the employee and in no way seem expected or coerced.  It is definitely good advice to have separate job descriptions and titles for paid employees and volunteers.  Volunteers can certainly do some of the same tasks, or help with the employee's tasks, but not have the exact same role. 

However, the Department of Labor and Industry does not universally prohibit having volunteers do work simply because “someone could be employed in the same capacity."  In fact, when it comes to public agencies, the Department of Labor actually states (http://www.dol.gov/dol/allcfr/Title_29/Part_553/29CFR553.104.htm):
"There are no limitations or restrictions imposed by the FLSA on the types of services which private individuals may volunteer to perform for public agencies." 

I want to make it very clear that I am not a lawyer, but what’s important here as a strategy is to question any negative response.  Ask for the documentation on which the legal or HR person based their reply (a great way to see if they actually did any research at all).   You can also talk to a Department of Labor representative directly or find examples of common practice in other organizations similar to yours.
 
Risk, Liability and Insurance as Smokescreens

Ten years ago, I wrote a column for The NonProfit Times which I titled “Volunteering Is Inherently Risky” (click to read the article).   All of the points I raised continue to be applicable today. 

Fear of lawsuit is not the same as a legal prohibition against doing something.  The percentage of probability of a worst-case scenario occurring should not overshadow the majority of times an activity will bring positive results without danger.   Everything we do in life carries some risk – we all make daily decisions about which risks we are willing to accept.  For organizations, the question is not “might we be sued?” – it’s “if we were sued, can we defend our actions?”  Or, again, “are the consequences of not providing this service worse than doing it and accepting the risk?” 

Unfortunately, this reasonable approach is too easy to ignore when it comes to volunteers.  Maybe the question regarding volunteers is:  “Do we value the impact of volunteer services enough to plan safe and sound ways to do what we really feel ought to be done for our clients – even if it means paying for insurance, too?

Again, for volunteer program managers, the best advice is to hold your ground.  If you truly believe in something you want volunteers to do, don’t let an initial “no” daunt you.  Make your case.  Browse the resources on legal issues in the Energize Online Library at http://www.energizeinc.com/art/subj/risk.html for other expert quotes.  Keep asking:  “So if you think what I’ve just proposed is wrong, help me find another way to accomplish these goals.”

Recalcitrant Webmasters
 
Finally, a word about Webmasters.  They are knowledgeable about software and technology, but should not make final decisions about site content or determine communication priorities.  If your Webmaster resists keeping the pages about volunteering current, or won’t post an application form, or won’t do something you’d like, ask questions to discover the true reason for resistance. For example, is it technically difficult or is it mainly a lack of time and many demands?  If the issue is fitting the volunteer program into the sequence of priorities, you may need to find the appropriate executive who can insist that the Webmaster devote time to searching for ways to meet your needs.

Remember that many IT professionals have developed problem-solving skills needed for translating complex computer languages into successfully running Web sites. Challenge them to use those problem-solving skills to serve your online communication needs.  Also, offer to recruit a skilled volunteer who can create or maintain all the needed Web pages (following the official templates) and give them to the Webmaster for simple posting to the site.  This keeps “control” of the Web site in one place, but removes all the common barriers of “this sort of updating is just too time consuming.”

The Common Denominators
In all these cases, remember these approaches and strategies:

  • Assume lack of education about volunteer-related issues/precedence, if not total ignorance, despite the appearance of great specialized knowledge.   It’s not necessarily malicious, but too few lawyers, etc. even recognize how complex the subject of volunteering is.  It seems very simple.  It rarely is.
  • Don’t be afraid to challenge a turn-down or turn-away.  Ask pointed questions, both to teach the other person about the complexity of volunteering and also to learn more about how decisions are reached.
  • Use outside resources.  Not everyone wants to be the first to do something, but few people want to be the last, either.  If the expert consultant thinks this is your own pie-in-the-sky idea, it’s easy to dismiss it.  But if you show how this same practice has been proven elsewhere, it’s harder to say no without some clear reason.
  • Involve volunteers as co-advocates.  Sometimes legal and risk management experts can’t envision that volunteers would be willing to do something.  Prove them wrong.

So…what obstacles have been thrown in your path?  How did you deal successfully with lawyers, insurance agents, accountants, and Webmasters?  Inquiring minds want to know!

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A validating tool for analyzing the effectiveness of an organization's volunteer management practices, with complete Scoresheets and instructions to conduct the process successfully.

 

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Managing a volunteer program part-time? Or just not enough hours in a day? Full task analysis of the job of volunteer program manager, how to build a management team and engage volunteers in leadership of the program.

 

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A set of checklists, worksheets, idea stimulators, and other practical guides for senior-level leaders to incorporate volunteer involvement as a key ingredient in the overall strategy of an organization.

 

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