DOL, CFR Clarify When Volunteer Service Falls Outside FLSA Coverage

Federal regulations and Department of Labor guidance reaffirm narrow conditions under which unpaid service is treated as volunteer work rather than employment under the Fair Labor Standards Act. The rules flow from the 1985 amendments to the FLSA and are implemented in 29 C.F.R. part 553, Subpart B, which sets out when public-agency volunteering does not create employee status for FLSA purposes.

The regulation states its purpose plainly: "Section 3(e) of the Fair Labor Standards Act, as amended in 1985, provides that individuals performing volunteer services for units of State and local governments will not be regarded as 'employees' under the statute. The purpose of this subpart is to define the circumstances under which individuals may perform hours of volunteer service for units of State and local governments without being considered to be their employees during such hours for purposes of the FLSA." The rule adds that "An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours," and that volunteers are not subject to sections 6, 7, and 11 of the FLSA when service is performed in accord with Section 3(e)(4)(A) and (B) and the guidelines in the subpart.

Practical tests used by employers and agencies mirror that framework. A widely circulated summary lists three core requirements: "There is no promise, expectation, or receipt of compensation for the services rendered. It is acceptable to pay expenses, reasonable benefits, or a nominal fee. The employee offered his or her services freely and without coercion, direct or implied, from the employer, and the individual is either not employed by the public agency for whom the services are being performed or the individual employee is not performing the same type of services that that employee is otherwise employed to perform." The regulation also explains that the phrase "same type of services" means similar or identical services and that the Administrator will consider, among other things, "the duties and other factors contained in the definitions of the 3-digit categories of occupations in the Dictionary of Occupational Titles" in assessing that question.

The Department of Labor emphasizes that volunteering is recognized for religious, charitable, civic, humanitarian, or similar nonprofit purposes, and that "The FLSA recognizes the generosity and public benefits of volunteering and allows individuals to freely volunteer in many circumstances for charitable and public purposes." But the agency draws clear lines: "Individuals generally may not, however, volunteer in commercial activities run by a non-profit organization such as a gift shop." The DOL warns that certain tasks - making or receiving interstate telephone calls, shipping materials to another state, and transporting persons or property to another state - may create individual coverage under the FLSA, although the Wage and Hour Division "will not assert that an employee who on isolated occasions spends an insubstantial amount of time performing individually covered work is individually covered by the FLSA."

Lawyers and practitioners stress the operational stakes. Ward and Smith, P.A. uses a concrete contrast: "A police officer can properly be considered a volunteer, and need not be paid, for reading to school children at the municipal library. The same officer must be paid, however, and cannot be considered a volunteer, when directing traffic for a city-sponsored road race in the same municipality where the police officer is employed." The firm also cautions that "Keeping labor costs low through the use of volunteers or interns can benefit your organization, but can also present significant monetary liability."

For employees, interns, and employers, the takeaway is straightforward: unpaid public or nonprofit service can be lawful volunteer work, but only within tight legal limits. Employers should confirm that volunteers receive no expected compensation, do not perform the same paid duties as their jobs, and are not used to displace regular staff. Workers who are asked to volunteer for their employer or to perform duties that cross state lines or resemble their paid job should raise the question of whether that time must be paid. Organizations that rely on volunteers or unpaid interns should review the CFR language and DOL fact sheets and consult counsel to avoid wage-and-hour exposure.