Don’t ‘Volunteer’ To Pay Your ‘Volunteers!’

Joining unpaid interns, volunteers are the latest addition to the class of workers to seek unpaid wages – despite the fact that they possess no expectation of compensation at the time that they render services. A potential class action lawsuit filed last month by a volunteer against Major League Baseball (“MLB”) in New York federal court – Chen v Major League Baseball– sets the stage for this latest battleground.

How Does the FLSA Treat “Volunteers?”

The federal Fair Labor Standards Act (“FLSA”) exempts individuals who volunteer to provide services, so long as: (i) the individual does not receive, nor expect to receive, any compensation in consideration for his/her services (although the individual may collect paid expenses, reasonable benefits, or a nominal fee); (ii) the individual possesses a civic, charitable, or humanitarian purpose for providing the services; (iii) the services are provided without pressure or coercion; and (iv) the services rendered are not the same type of services rendered by the individual in his/her capacity as an employee of the same entity.

Although the term’s precise parameters remain somewhat blurred, the Department of Labor (“DOL”) has proclaimed that an individual may not render services on a volunteer basis to a for-profit institution. Indeed, according to the DOL’s formulation, only “public agencies” may engage the services of a volunteer ...

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