DOL Opinion Letters Tackle Pay for Volunteer Programs and Residential Janitors

 

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The U.S. Department of Labor (DOL) recently clarified its positions on compensating workers who participate in an employer's off-duty volunteer program and on paying minimum wage and overtime premiums to residential janitors.

The DOL made these clarifications in two opinion letters responding to employer questions about Fair Labor Standards Act (FLSA) compliance. Opinion letters describe how the agency would enforce federal wage and hour laws in specific circumstances presented by an employer, worker or other party who requests the opinion. Opinion letters are not binding, but there may be a safe harbor for employers that show they relied on one.

Volunteer Programs

The first letter addressed whether employees' off-duty time spent volunteering through a company program counts as hours worked and is therefore compensable under the FLSA.

In the situation presented, the organization's employees could participate in a community service program at employer-selected or employee-selected events. Workers weren't paid for off-duty hours spent volunteering, but the employer awarded a bonus to the group of employees with the "greatest community impact," according to the letter. The group's supervisor had discretion on how to split the award among group members.

The request for an opinion asked if the employees must be paid under the FLSA for the time they spent volunteering outside of working hours. In this case, the DOL said no.

Vanessa Kelly, an attorney with Clark Hill in Princeton, N.J., noted that employers likely won't have to pay employees if the off-duty volunteer program follows these rules: 

  • The program must be truly voluntary.
  • Employees aren't guaranteed a monetary benefit.
  • There are no adverse consequences for employees who do not volunteer.
  • The employer doesn't control the volunteer program.

"The last factor may cause employers some trouble," Kelly said. In the program presented in the opinion letter, employees could choose the type of charitable work they wished to pursue, and there was no requirement that they participate for a certain number of hours.

"Employers certainly should be applauded for encouraging employees to engage in volunteer activities and identifying religious, civic, humanitarian or similar public service opportunities," said Josh Woodard, an attorney with Snell & Wilmer in Phoenix. However, employers should ensure that they are not pressuring employees to engage in volunteer activities or directing or controlling such activities, he said.

Based on the facts presented, the DOL found that the employer's program was charitable and voluntary. Significantly, the employer didn't guarantee a bonus to participants, even though the winning group received one.

"Make sure that employees' participation in volunteer work does not affect the terms and conditions of their employment, either positively or negatively," said Melanie Pate, an attorney with Lewis Roca Rothgerber Christie in Phoenix. "It must be truly optional."

Residential Janitors

The second DOL opinion letter addressed whether an employer must pay minimum wage and overtime premiums to a residential janitor to comply with the FLSA even though the relevant state—New York—exempts certain live-in superintendents.

In its opinion letter, the DOL said residential janitors are not exempt from the FLSA's requirements and compliance with state wage and hour laws doesn't excuse noncompliance with federal law.

Employers must comply with both the FLSA and state laws, and, when the laws differ, employers must follow the requirement that provides the most protection for the employee, whether it is the state or federal law, Pate explained.

[SHRM members-only toolkit: Determining Overtime Eligibility in the United States]

As to the issue presented in the opinion letter, the DOL's Wage and Hour Division "took a practical and workable approach," Kelly said. Employees, such as residential janitors, who live permanently or for extended periods on an employer's premises don't need to be paid for all time spent at the property. The agency recognized that these employees spend time on the premises pursuing personal activities, such as sleeping, eating or entertainment.

In these circumstances, employers must come to a reasonable agreement with the resident employee as to working hours. Once the agreement is reached, the employer doesn't have to keep overly detailed records of the employee's time spent working.

"In other words, the employee doesn't have to log time spent on each and every task," Kelly said. Instead, general time records that correspond to the agreement will suffice.

"However, if there is a departure from the agreement and actual hours worked, it is time for a new agreement," she added.

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