WORKPLACE LAW -
Volunteering in the Workplace

Question:

I am a recent college graduate, and have not been able to find a job in my field. I have read on the Internet that volunteering to work for free is a good way to get your foot in the door. I was talking with some friends about this idea, and somebody said that you need an internship. I am pretty sure you need to still be in school to get an internship. Can I just volunteer if the company will agree to it?

Answer:

You have asked a very timely question. With unemployment the highest it has been in many years, people are looking for innovative ways to get a job. While a potential employee may believe that offering up his or her services “for free” is a viable marketing tool, most private sector, for profit employers are prohibited from taking advantage of this type of offer. This is because California and Federal law require private for-profit employers to provide workers certain benefits and protections under wage and hour laws. There are exceptions to this general rule for internship programs, as well as for certain types of jobs. In addition, public sector and non-profit organizations can use volunteer labor, with certain restrictions.

Under the California Labor Code, all employees, with certain exceptions, are entitled to minimum wages, overtime, and meal and break periods. The exceptions include volunteers for a public agency or a private, nonprofit organization, and certain narrow categories of workers, mostly related to organized sports.

The Division of Labor Standards Enforcement (DLSE), which enforces California wage and hour laws, has issued an opinion letter discussing the use of volunteers by non-profit businesses. The DLSE stated that a volunteer for a religious, charitable, or similar non-profit organization must intend to work for public service, religious, or humanitarian motives, without contemplation of pay, and that the volunteered services may not be the usual services of that volunteer’s paid job. The DLSE further opined that volunteers may not be utilized for religious, charitable, or nonprofit commercial enterprises that serve the general public. If a volunteer meets all of these requirements, the volunteer is not entitled to pay for the work performed.

Federal law has similar standards for volunteers. The United States Department of Labor (DOL) has issued a Fair Labor Standards Act (FLSA) advisory opinion stating that under the FLSA, employees can do volunteer work for public sector employers and non-profit employers, but not for private sector, for-profit employers. The DOL explained that in order for work to qualify as unpaid volunteer work, the worker must satisfy the following three criteria:

  • Perform work for a public agency for civic, charitable or humanitarian reasons, without promise, expectation or receipt of compensation. A volunteer can be paid only for expenses, reasonable benefits or a nominal fee to perform such services;
  • Volunteer freely and without pressure or coercion from an employer; and
  • Not be employed by the same public agency or non-profit business to perform the same type of services as those for which the individual proposes to volunteer.

Workers may also provide free labor as interns, but internships must qualify under a set of fairly restrictive criteria. Some of the criteria echo the rules used for non-profit volunteers. For instance, interns may not “replace” regular employees, and an intern may not be entitled to a job at the conclusion of the internship. In addition, the internship must provide training to the worker. Although no direct affiliation with a school is required unless clinical training is involved, the training must be similar to that which would be given in a vocational school.

In a November 12, 1998 opinion letter, the DLSE addressed the use of unpaid interns at a weekly newspaper. The “interns” performed a mix of editorial and clerical tasks, and were not affiliated with a college program. The opinion letter applied an 11-part test for internship programs. Not surprisingly, the DLSE concluded that the performance of clerical duties by the interns was more like free labor for the newspaper than training for the interns, and that the interns were in fact employees who were entitled to wages.

In conclusion, volunteering in the private, for-profit business sector is not an available option for job-seekers under current law, although participating in an internship that satisfies the legal requirements discussed above may be an option. Volunteering for the non-profit or public sector, however, is a worthwhile use of your free time, and may impress a future employer.
- - - - - - - - - - - - - - - - - - - - - - - - - -
Back to Menu- Work Place Law 2009 Articles