What type of form do I need for people wanting to volunteer their services? I have young people who ask about volunteering because of a program through their schools or just wanting to volunteer. But do I need some type of legal document for volunteers to sign?
Answer:
Volunteer programs: We do not know the types of activities these volunteers would perform for your business, but it is unusual for individuals to volunteer their services to for-profit businesses. It is more common for nonprofit organizations to utilize volunteers. While for-profit pet stores and supply companies like Petco and Petsmart for example have volunteers in their facilities, these volunteers are typically working in pet adoption centers or at pet adoption events run by nonprofit organizations focused on animal welfare that the for-profit companies have partnered with. Workers in these centers and at these events are volunteering their time to the nonprofit organizations that run the centers and events and not directly to the for-profit businesses hosting the centers or events. Assuming you have a pet adoption center, hold pet adoption events or have partnered with a nonprofit organization focused on animal welfare in some other fashion, then you should have any volunteers contract directly with the nonprofit organization if they want to volunteer their time. While you may want to develop policies for any volunteers the nonprofit organizations have working on your premises and provide those volunteers with a copy of your policies with an acknowledgement form that you have them sign, any volunteer contract should be between the volunteer and the nonprofit organization. Your lawyer can help you develop your volunteer policies and acknowledgment form. The following is an example contract between a nonprofit organization and its volunteers:
To avoid labor law issues with any volunteers, it is important not to have volunteers performing any work directly for your company that any of its employees would ordinarily perform, or they would likely be classified as your employees. As your employees, they cannot volunteer their time to your business and must be paid for the hours they work. Under the Fair Labor Standards Act or FLSA, employees may not volunteer services to for-profit private sector employers as discussed in the article below. The FLSA is the federal wage and hour law which sets basic minimum wage, overtime pay and child labor standards.
Also, if these volunteers are young children, you would have to consider child labor laws if they were to be classified as your employees. The following is FLSA child labor law information for your review:
Internships: Though not possible for every small business, there may be opportunities to engage workers as unpaid interns. In order to engage workers as unpaid interns rather than employees, a business generally has to establish an internship program that takes advantage of the trainee exception to the minimum wage and overtime requirements under the Federal Fair Labor Standards Act or FLSA. Again, the FLSA is the federal wage and hour law which sets basic minimum wage, overtime pay and child labor standards. Under the FLSA, workers who are considered employees are required to be paid minimum wage and overtime pay unless they qualify for one of the exceptions under the FLSA. Not all categories of workers are considered employees under the FLSA. For example, independent contractors and certain volunteers and trainees are not considered employees under the FLSA and are therefore not subject to the FLSA’s minimum wage and overtime provisions. When an intern qualifies as a trainee under the FLSA, the intern is exempt from the FLSA’s minimum wage and overtime provisions and does not need to be paid.
While many internship programs take advantage of the trainee exception to the FLSA, internship programs must be carefully structured to avoid violating the FLSA. In terms of trainees, the Department of Labor (DOL) has developed a six-factor test for trainee status under the FLSA, which applies to interns. Of the six conditions, the two most important rules are that the employer must not obtain immediate advantage from the activities of the intern and an intern cannot displace a regular employee. If the internship primarily benefits the intern and has a sufficient nexus to the intern’s education, it is not likely to be deemed an employment relationship for which wages must be paid. On the other hand, if the intern is used to perform the work of regular employees, or if an employer uses the internship to provide on-the-job training for the future of its own employees, this violates the FLSA and the intern will be regarded as an employee. You can review discussions on trainee status under the FLSA and the DOL six-factor test at the following websites:
- Department of Labor on Trainees: dol.gov
- Department of Labor on Wage and Hour Division (WHD): dol.gov
- Rules Regarding Interns: hopkinscarley.com
- Six Criteria of Unpaid Internships: lacba.org
- No Such Thing as a Free Intern: workknowledgeblog.com
- Preventing Employer Misclassification of Student Interns and Trainees: cornellhrreview.org
Internships are generally designed to help students gain experience and training in their chosen professional field and often earn class credits, which is different than general or in-house, student employment or work programs. Official intern programs are often coordinated through a school or university. To determine if your particular jobs would qualify for an internship program and to identify any internships that apply to your business, we suggest you start by contacting local colleges or technical schools. The schools will have guidelines, which may or may not include course credit. If there are problems with an official internship, there are still opportunities for employing students in an unofficial internship. As we discussed above, unless they qualify as trainees under the FLSA, your interns will need to be paid. However, most internships, including those that provide course credit, provide interns with a reasonable wage. You can review additional information regarding internship programs at the following websites:
Example employer guides to university internship programs:
Intern recruiting resources:
If you are uncertain whether you can establish an unpaid internship for your business after reviewing the above information, we recommend that you review your hiring plans with a local labor lawyer to clarify the application of the FLSA and DOL guidelines to your situation and help you develop your internship program. Assuming interns are classified as employees and not as trainees under the FLSA and DOL guidelines, then you should follow all the new hire procedures with them that you would with any new employees.
Published: July 26, 2013
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