FLSA: Who Is a Volunteer?

The Fair Labor Standards Act establishes minimum wage, overtime pay, recordkeeping, and youth employment standards for employees—as opposed to volunteers—in the private sector and in Federal, State, and local governments. 

The FLSA defines employment very broadly, i.e., “to suffer or permit to work.”

However, the U.S. Supreme Court has made it clear that the FLSA was not intended “to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another.” 

In administering the FLSA, the Department of Labor follows this judicial guidance in the case of individuals serving as unpaid volunteers in various community services. 

The FLSA recognizes the generosity and public benefits of volunteering, and allows individuals to freely volunteer in many circumstances for charitable and public purposes. 

True volunteers will thus not be subject to the requirements of the FLSA.

Charitable Activities

Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, without contemplation of pay, are not considered employees of the religious, charitable, or non-profit organizations that receive their service. 

It is important to keep in mind, however, that individuals may only “volunteer” in an organization’s charitable activities; tasks done for a commercial or business purpose may be considered employment. For example, an individual could volunteer in a museum, but not in the museum’s gift shop.   

Under the FLSA, employees may not volunteer services to for-profit, private sector employers. 

On the other hand, in the vast majority of circumstances, individuals can volunteer services to public sector employers.

When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community with one exception: public sector employers may not allow their employees to volunteer, without compensation, additional time to do the same work for which they are employed.