Peggy, it's the Fair Labor Standards Act that is enforced by the Department of Labor. Here is some information that may be of use. The bottom line is that they can't engage in work normally done by a paid employee as that is displacing a paid employee and they can't work in a retail or commercial business division of the non-profit. I hope this helps answer the question.
"While the FLSA itself does not contain an exemption that generally excludes volunteers from the definition of employees at non-profit businesses, the U.S. Department of Labor’s (DOL) Wage and Hour Division has recognized that there are certain circumstances under which volunteer workers at non-profits are exempt from the wage requirements of the FLSA. The DOL’s enforcement position has been that individuals may work for charitable, civic, religious, humanitarian, and similar non-profit enterprises and not be considered an employee under the FLSA if they volunteer freely, without expectation of compensation, and if they are engaging in activities that constitute “ordinary volunteerism.”
In determining whether a particular activity involves “ordinary volunteerism,” the DOL considers a variety of factors, including:
- the nature of the entity receiving the services;
- the receipt by the worker (or expectation thereof) of any benefits from the entity receiving the services;
- whether the activity is less than a full-time occupation;
- whether regular employees are displaced;
- whether the services are offered freely without pressure or coercion; and
- whether the services are of the kind typically associated with volunteer work.
However, if an individual volunteers in a part of a non-profit that engages in commercial business and serves the public (such as retail stores and other businesses), those workers won’t be deemed volunteers. Rather, they’ll be considered employees subject to the minimum wage and overtime wage requirements of the FLSA.
Employees who volunteer for their employing organizations are also worthy of note. An employee may volunteer his time for his employer so long as: the employer does not request, or otherwise direct, the employee to volunteer; the work the employee performs is not the same type that constitutes his normal work activity; and the work is performed outside the employee’s normal working hours. In the absence of any of these factors, the volunteer work that the employee is performing is working time and must be paid."
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Roslyn Schaffer, SHRM-SCP, SPHR
Chief Human Resources Officer
The Barnes Foundation
Philadelphia, PA
rschaffer@barnesfoundation.org
Original Message:
Sent: 08-16-2016 08:26 AM
From: Elspeth Inglis
Subject: Volunteer docents and paid educators
We're in the process of hiring a volunteer coordinator through AmeriCorps, so I'm doing some research. You've raised a very good issue, one that we've considered, but not from a legal point of view -- doing some digging and at some point, I'll ask our HR director what she knows. We're governed by a community college, and they don't use volunteers (except staff!). The museum is the odd cousin, so I'm not sure they'll have the answers to the legal aspect, either. Meanwhile, here's a bit of what I've found:
Employee or Volunteer: What's the Difference?
elaws - employment laws assistance for workers and small businesses
Using Volunteers and Interns: Is It Legal?
None of these sites has anything to say about the legality, per se, of volunteers doing the same work as employees, but they do say that volunteers "typically" do not displace employees. Let us know if you find anything more specific!
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Elspeth Inglis
Assistant Director for Educational Services
Kalamazoo Valley Museum
Kalamazoo MI
Original Message:
Sent: 08-15-2016 10:33 AM
From: Charles Hersh
Subject: Volunteer docents and paid educators
Thank you both for your responses!
Elspeth - What an interesting situation. You're right, finding distinctively different yet still meaningful roles for both volunteers and paid staff is key. We've arrived at making this more of an educational position, like an introduction to museum education, and that's helping a lot to differentiate between the two roles. Like you suggest, we're probably going to involve them in the development of new curricula. And I love the idea of having volunteers help with some of the trainings. That will definitely help to ease volunteers' potential fears of displacement. Good luck as you navigate this situation as well!
Peggy - I'm not sure of the specifics of the law but I imagine it has to do with the logic of, if two groups are doing the exact same tasks, why are we paying x group and not y group? (Though I should also clarify that this requirement has come to us from more senior staff through a few other people, so it's possible that the legality issue was added in "through the grapevine" and is actually just a company issue.) But if anyone has any resources I'd love to learn more as well!
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Charlie Hersh
Education Assistant
National Museum of American Jewish History
Philadelphia, PA
Original Message:
Sent: 08-12-2016 02:43 PM
From: Peggy Derrick
Subject: Volunteer docents and paid educators
Hello,
Your situation has raised an ancillary question for me. Why do the job descriptions for staff and volunteers need to be different? I get that they usually are, but is that a legal requirement?
And I understand that it is illegal to have a paid employee donate volunteer hours doing the same thing you pay them for. I was not aware that it was illegal to have paid and unpaid staff doing the same duties. If it is, can someone point me to a reference source to read up on it?
Thank you,
Peggy
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Peggy Derrick
Curator
La Crosse County Historical Society
La Crosse WI
Original Message:
Sent: 08-11-2016 09:44 AM
From: Charles Hersh
Subject: Volunteer docents and paid educators
Hi all,
Our Education Department has an established volunteer docent program, but due to frequently not having enough docents for our tours, we're trying to supplement our docents with paid (part-time) Museum Educators. We're hoping to bring on either current students or recent grads to lead tours, plus do a few other administrative tasks such as outreach to schools and setting up tour materials. We've been told that, legally, we need to distinguish the job description from our docent program, and we're concerned that adding on these administrative tasks isn't enough. We're also worried about potentially negative reactions from our docents.
Do any of you have both volunteer docents and paid part-time educators? How do you distinguish between the two positions? Is there any friction between the two groups, and if so, how have you handled it?
Thank you so much!
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Charlie Hersh
Education Assistant
National Museum of American Jewish History
Philadelphia, PA
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