True or false: Anyone can volunteer to work for free. Answer: True. That was easy. Now, true or false: Any private for-profit company can allow anyone to volunteer to work for free. Answer: Not necessarily.
The Pew Research Center just published a report suggesting that social media users, particularly those on social networking sites, are more likely than those who do not travel in online circles to be engaged in volunteer activities. According to the report, 80% of social media users participate in volunteer groups compared with 56% of those who do not utilize the Internet. The report prompted cnn.com to note that “[t]he stigma that heavy internet usage creates lonely, reclusive people blogging in a dark room may require rethinking.”
So we know that today’s workforce (and those applying to work for your company) are heavily involved in social networking, and we now see that most of those making up the social media workforce are more inclined to act as volunteers. And we also know that today’s economic climate is such that people are more willing to volunteer their services just to be able to get work experience and a name on their resume. So what’s the problem?
In 1985, the federal Fair Labor Standards Act was amended to strike the proper balance between infringing on an ability to have true volunteer activities, while at the same time avoiding wage violations and other employer abuses. Remember that the basic tenet of federal wage and hour laws is that covered, non-exempt individuals must be compensated for all services performed for an employer, with the law requiring the payment of a minimum wage and premium overtime compensation for more than 40 hours worked in a workweek. However, the definition of “employee” for purposes of federal law coverage does not generally include one who volunteers to perform services for a public or not-for-profit agency under most circumstances. Yet, no such exclusion exists to allow unpaid volunteers in a private for-profit entity.
A related issue involves the use (and perceived abuse) of unpaid interns. The Department of Labor has established 6 criteria for determining whether one is properly classified as an unpaid intern:
(1) The internship is similar to training which would be given in an educational environment;
(2) The internship experience is for the benefit of the intern;
(3) The intern does not displace regular employees, but works under close supervision of existing personnel;
(4) The employer derives no immediate advantage from the intern’s activities, and on occasion its operations may be impeded;
(5) The intern is not necessarily entitled to a job at the conclusion of the internship; and
(6) The employer and intern understand that the intern is not entitled to wages for time spent, and services performed, during the internship.
The general rule of thumb is to look at whether the intern is truly performing the services for his or her own educational benefit, or whether it is for the benefit of the employer.
Employer Take AwayWhat should you as an employer take away from this development? The belief that any private for-profit company can use volunteers or unpaid interns without limitation has long been widespread. However, as with many other issues involving workplace classification (e.g., employee vs. independent contractor, exempt vs. non-exempt) the consequences for failing to comply with the law can be steep, even if your intentions are good.