The U.S. Department of Labor has issued yet another opinion letter sorting out when an employee need not be paid while volunteering. DOL Opinion Letter FLSA2019-2 was one of three letters issued on March 12, 2019. In this case, an employer inquired whether an employee’s time spent in its optional volunteer program was compensable as “hours worked” under the Fair Labor Standards Act (FLSA). In short, this employer tracks employee’s hours volunteering and awards a bonus to certain participating employees. The volunteering is purely optional. While employees are paid to volunteer during working hours, or for work required to be performed on the employer’s premises, they are not paid to volunteer outside normal working hours.
The DOL thus clarified that compensating employees while participating in volunteer activities during normal working hours does not jeopardize their status as volunteers when they participate outside of normal working hours. The DOL also clarified that an employer may use volunteer time as a factor in considering whether to pay the employee a bonus, and need not count that time as hours worked, “so long as: (1) volunteering is optional, (2) not volunteering will have no adverse effect on the employee’s working conditions or employment prospects, and (3) the employee is not guaranteed a bonus for volunteering.” That being said, employers should keep in mind that this opinion letter is fact specific. The debate with an employee will be the degree to which they believe that volunteering was not in fact “purely optional” as an employer states, but was expected, favored, implied, or coerced.