- Employee participation in an employer's optional volunteer program is not considered hours worked under the Fair Labor Standards Act (FLSA) — even if the employer awards a bonus to certain participating employees — provided the program is charitable and voluntary, the U.S. Department of Labor (DOL) said in an opinion letter Thursday.
- The letter answered questions about an employer's optional community service program in which workers perform activities either sponsored by the employer or chosen by employee. The employer doesn't require employees to participate in the program, DOL said, nor does it control their participation. As part of the program, the employer "rewards the group of employees with the greatest community impact with a monetary reward." Workers also are compensated for time spent volunteering during work hours or when they're required to be on the employer's premises.
- DOL also said the FLSA permits an employer to use an employee's time spent volunteering as a factor when calculating a bonus without needing to treat volunteer time as hours worked, so long as the volunteering is optional and doesn't have an adverse impact on the employee's working conditions or employment prospects. On a separate point, the agency approved the employer's use of a mobile device app to track participating employees' volunteering time for the purpose of determining which team would win the monetary award. But were the employer to use the app to direct or control worker's volunteer activities, time spent following such instructions would count as hours worked under FLSA, the agency noted.
Employers might need to exercise caution when launching volunteer programs. DOL makes clear that the FLSA does not permit employees to volunteer services to for-profit employers but, at the same, time the agency stated in its March 14 letter that "Congress did not intend for FLSA 'to discourage or impede volunteer activities,'" and also cited previous agency opinion letters in explaining that an employer "may notify employees of volunteer activities and ask for assistance with them as long as there are 'no ramifications if an employee chooses not to participate.'"
Volunteerism has been linked to larger corporate initiatives to improve brand image as part of corporate social responsibility efforts. By offering paid volunteer hours or otherwise encouraging employee-led projects in local communities, employers may be able to create team-building opportunities and improve engagement. Many have joined in on the trend and encouraged volunteerism through such programs, as did Starbucks when it launched a pilot program in 2018 allowing select employees to split their time working at a community organization while still getting paid.
DOL's wage and hour opinion letters can serve as a partial defense for other employers in the event of litigation — provided employers rely on the letters in good faith — but that defense can be an imperfect one due in part to the letters' fact-specific nature, experts previously told HR Dive.