Firm Articles and Story Blog

Am I an Employee if I Volunteered to be Here? Should I be Getting Paid?

Posted by Caleb A. Miller | Aug 10, 2022 | 0 Comments

It is a common belief that if you are a volunteer worker, you are not eligible for pay or any other form of benefits and in most cases, this is true. However, the experienced employment attorneys at Miller Wilmers APC have seen first hand how quick some employers are to take advantage of employee-volunteers and subject them to working conditions that would otherwise be restricted to employees. Although volunteering for a good cause is always noble, there is no nobility in being taken advantage of. If you feel you are being coerced or pressured into volunteering by your employer for activities that benefit the company, you are likely just an employee with unpaid work tasks which is not legal in the State of California. 

What is a Volunteer?

A volunteer is not considered an employee and falls outside the California wage and hour requirements. The question whether an individual is a volunteer generally arises in one of two contexts:

1. When an individual who has never been an employee of this employer performs volunteer services; and

2. When an employee of the employer volunteers services in his off hours.

In the first situation, individuals who volunteer and donate their services, without contemplation of payment, lets say for humanitarian, religious or public service reasons are not considered employees. The Wage and Hour Division has ruled that, where there is no contemplation of payment, there is no employment relationship. This means that the volunteer never expected compensation and was informed clearly that there would be no compensation. Promises for payment in combination with being told you are a volunteer often result in no payment. Volunteer only because you want to, not in expectation of something. 

In-Kind Compensation

There is a concept called "in-kind " compensation. Where the employee expects payment in the form of some benefit rather than cash, than they are still considered to "expect payment". Providing individuals food, shelter, clothing, transportation and medical benefits in exchange for services is no different than providing wages in another form according to our Supreme Court. 

The Fair Labor Standard Act, which largely controls the baseline for working conditions and expectations in the country, has excluded from the definition of "employee," individuals who volunteer their services solely for humanitarian purposes at private non-profit food banks and their status is not affected if they receive groceries from the food banks. This is what we call an exception to the rule. If your employer asks you to stay a few extra hours to get that pizza party you have bene promised, this is just a corrupt employment practice and you are not volunteering you are working. 

Volunteer work by Current Employees

Generally, an employee cannot be treated as an unpaid volunteer for an employer when performing their regular work for the employer in the same workweek in which they are also an employee. For example, if you are employed by a charitable organization you may not both be compensated for your regular duties (i.e. accounting for donations) and considered to volunteer in events that seek charitable donations. If the related work arises from exigencies of the operations conducted by the employer it is not volunteer work, it is just an employer taking advantage of you. However, the employee can volunteer, with no expectation of compensation, to perform completely unrelated tasks for their employer. The question rests on whether this work is in fact related to your regular duties and to what extent to we draw the line at what is related. 

Volunteer work for a Government Agency

In order to qualify as "volunteers" to a government agency, the individuals must perform services for civic, charitable, or humanitarian reasons, without promise, expectation, or receipt of compensation. They must freely offer their services and without indirect or direct pressure or coercion. Meaning it must truly be voluntary. We had this saying in the Marine Corps, its that if you don't volunteer, you will be voluntold. That doesn't apply in the real world and thankfully, if you are being voluntold to perform unpaid activities you would likely have a claim for unpaid wages. 

The Depth of Unpaid Labor

As this problem expands, you will find you have not just been unpaid for this time, but likely there are overtime calculations that you were not considered for, meal breaks and rest breaks you were not given, and the derivative claims of inaccurate wage statements, time sheets and late payments. Over a period of time volunteering on weekends, you could find that you are owed much more than you realized.

Volunteering is noble but be sure it is truly volunteering and not an additional unpaid task you have been given by your employer. If you believe you are being subjected to, or voluntold to perform work, that is unpaid, contact our office for a FREE consultation. 

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Avvo - Rate your Lawyer. Get Free Legal Advice.