Overview: DOL Opinion Letter FLSA 2019-2 confirms that an employee's time spent participating in an employer's volunteer program is not compensable so long as the program is optional, the employer does not control or direct the volunteer work, and an employee will not suffer adverse consequences for choosing not to participate.
Details:
The United States Department of Labor (DOL) has issued an opinion letter in response to an employer’s query about whether volunteer hours logged by its employees are considered “hours worked” under the Fair Labor Standards Act (FLSA). The employer facilitates an optional community service program for its employees. Employees may participate during work hours (for which they are compensated) and non-work hours (for which they are not). The employer provides a yearly bonus to the group of employee volunteers that make the greatest community impact. To determine which employees receive the bonus, a supervisor may consider how many hours each employee volunteered. The employer does not require employees to participate, nor does the employer control their participation. The employer uses a mobile device application to track the employees’ volunteer hours.
Previous DOL guidance permitted employers to request employees to volunteer for outside activities if there is no coercion or requirement that the employees participate. The DOL has also permitted employers to consider the time that an employee has spent volunteering in determining whether to pay the employee a bonus, as long as:
1. volunteering is optional;
2. not volunteering has no adverse effect on working conditions; and
3. employees are not paid a bonus for volunteering.
In response to the employer’s inquiry, the DOL determined that because the above three conditions were met, the employer’s program did not require it to treat volunteer hours as hours worked under the FLSA. It also determined that the employer could use the mobile app to track volunteer hours. However, if the employer used the app to direct or control the employees’ volunteerism, such as instructing how an employee was to complete volunteer work, the time employees spent complying with the instructions would be compensable.
Action Required: Employers that offer employer-sanctioned volunteer activities should ensure that they comply with guidance provided by the DOL’s Opinion Letter.
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