What are the legal requirements relating to workers, generally? Federal and state wage and hour laws (like the Fair Labor Standards Act) provide that all “employees” must be paid either: (i) an hourly wage of at least the applicable minimum wage and overtime for hours worked over 40 in the work week; or (ii) for certain “exempt” employees, a minimum weekly salary of least $684. Currently, the New Jersey minimum wage is $11.00 per hour. Do these legal requirements apply to volunteers? While wage and hour laws define the term “employee” quite broadly, applicable guidance from federal and state departments of labor (DOL) provides that qualifying volunteers are not employees under wage and hour laws, and therefore are not subject to the wage and hour requirements described above (i.e., they need not be paid for services rendered). Who qualifies as a volunteer? While there is no bright line rule for employers, DOL guidance sets forth the following factors in determining whether an individual providing services to a nonprofit institution (like a university) qualifies as a volunteer: The individual must be performing services for civic, charitable, or humanitarian reasons. The individual must be providing those services without promise, expectation, or receipt of compensation for services rendered. The individual should be providing the services in a part-time capacity. The individual must provide the services freely and without pressure or coercion, direct or implied, from an employer (including the promise of future employment). The individual must not displace any regular, paid employees. Stated another way, the individual must not perform work that is essentially being performed by paid employees. The individual must be performing services which are of the kind typically associated with volunteer work. Individuals generally may not volunteer in commercial activities run by a non-profit (such as a gift shop). With respect to an individual volunteering for their non-profit employer, the individual may not volunteer to provide the same type of services to the non-profit employer that are the same as the duties provided as an employee. If an individual fails to satisfy any of the requirements listed above, the individual may be deemed an “employee” and must be paid in accordance with wage and hour laws. Consequently, the University would be required to pay payroll taxes on the individual’s salary, and extend to the individual all of the same legal protections extended to other employees (e.g., temporary disability, workers’ compensation). If a University employee intends to also serve as a volunteer for the University, the employee’s hiring manager should consult with Human Resources and the Tax Compliance Office in the Office of Finance and Treasury. What are the legal requirements relating to volunteer work during the “work day”? Federal regulations provide that volunteer work is work that would generally be provided outside of the employee’s normal working hours. The regulations suggest that volunteer work during normal working hours would be considered compensable. See 29 CFR § 785.44 (“Time spent in work for public or charitable purposes at the employer's request, or under his direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee's normal working hours is not hours worked”). Will University employees be covered by workers’ compensation in connection with their volunteer activities for the University? Risk Management is in the best position to advise on the terms of the University’s applicable policy, but it is possible that volunteers may not be covered by workers’ compensation if they would not be considered “employees” under the statutory framework while carrying out volunteer work. There are certain exceptions for volunteer firefighters, first responders, and the like. (Note: Occupational accident insurance policies may cover certain exposures for injuries incurred during volunteer work. These policies are essentially workers’ compensation policies for non-employees, like independent contractors, volunteers, and temps. In addition, the University’s CGL policy may cover claims relating to injured volunteers.) At Princeton, after considering the above information relevant to employees who desire to also volunteer for the University, what additional steps should be taken? The volunteer should sign the Volunteer Acknowledgment form prepared by OGC. Go to: COVID-19 Response Special Activities and Resources Group
