Are you Risking a Wage and Hour Lawsuit when Employees Volunteer?

Employers should ensure they are not applying undue pressure on employees to work “off the clock”

Posted by Randall Crane in Employment Law, Human Resources on November 21st, 2012

Many businesses want to “give back” to their community by participating in charitable and community-based activities. The willingness of business to sponsor fund-raising, sports events, food drives, school programs and other such outreach is an important part of the voluntarism that supports private benefit for the community.

According to the United States Department of Labor website:

Time your employee spends in work for civic or charitable purposes will be hours worked if:

  1. you, the employer, requested the employee to do it;
  2. the work being done is under your direction or control; or
  3. the work is being done during the time the employee is required to be on your premises or any other location assigned by the you as the employee’s place of work.

Such time should not be confused with bona fide volunteer activities. If the employee performs hours of service for civic, charitable or humanitarian reasons, without promise, expectation or receipt of compensation for the services rendered, he or she probably would be considered to be a volunteer of the religious, charitable or similar non-profit organization that receives the benefit of the services performed and the time would not be hours worked.

Working “Off the Clock”

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Many businesses also want to extend opportunity for learning, group participation, and other action by encouraging employees to attend meetings at lunch, after work, weekends or other times when the employees are on their own unpaid time. Employers encourage employees to take outside courses, attend outside lectures, go to brown bag lunches and otherwise engage in self-development.

At the same time, it is easy to overstep the line when an employer pressures an employee to give benefit to the company without compensation. The most obvious case is, for example, an employer who claims that hourly employees are so dedicated to the company and so in love with their work that they “voluntarily” punch out but continue to work off the clock. Actually it is common for low level laborers and also clerical staff to be “encouraged” to keep working “voluntarily” in order to keep their jobs.

It may be that  the loyal employee really does want to continue working at the job on the employee’s own time, but the employer must be aware of rules at the federal level and in many states which put limits on such activity whether the employer and employee agree or not.

Guidelines on what’s Voluntary

Here are the general rules.

  1. The work must be truly voluntary, not coerced by explicit or implicit pressure.
  2. The work must be outside normal working hours.
  3. Most importantly, the work cannot be directly related to the employee’s regular work and productive work cannot be performed.

So, for example, attending a course on public speaking is probably not paid work—unless the employer specifically agrees to pay. But attending a lunch meeting on billing practices is definitely work.

The common sense guide for the employer is to stand in the employee’s shoes and ask “would I volunteer to do this if I did not have to?” If the answer is “No!” or even “Probably Not,” arrangement for appropriate compensation at the usual rates is the fair and right step to take.

Randall Crane
Randall Crane

Principal Attorney at Law Offices of Randall Crane

Principal attorney at Law Offices of Randall Crane, has practiced business law and litigation since 1973, representing employers in California with an emphasis on employment law and litigation. Respected for practical problem solving and creative solutions, as well as cost effective and well-managed litigation, he services clients throughout the United States from law offices in Oakland, California. Graduated Boalt Hall School of Law, Elizabeth Joscelyn Boalt Scholar, in 1973. Pomona College 1967.

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