Must Companies Pay Employees For "Volunteering" At Company Charity Events?
Many companies hold charitable events or other events that benefit the public. Often times, employees of the company are pressured to volunteer at those events. If you are one of those employees, you may be asking yourself; “should I be getting paid to work my company’s charity event?”
The answer is – maybe.
Employers holding charitable events or events for the benefit of the public are likely doing so to help their own good will and boost their brand’s name. Although they are spending money and valuable time to put on the event, it is also a business opportunity that helps the company in many ways.
Federal rules and statutes guide employers as to when they should be compensating their employees for “volunteering” at these events.
Employers Holding Charity Events Should Be Careful Not To Pressure Employees To Volunteer, Keep The Event Times Outside Of Employee Working Hours, And Have Legitimate Public Or Charitable Reasons For Such Events.
Companies are guided by a federal rule that states, “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.”1
The regulation has been understood to hold that charitable work is considered working time and should be compensated if one or more of the conditions mentioned in the rule are met – unless the employee truly volunteers to help with the event (without pressure or coercion).
Basically, charitable work should be compensated if one or more of three specific conditions are met:
a. the employer requested the work;
b. while volunteering, the employee is subject to the employer’s direction or control; or
c. it is during a time when the employee would normally be required to be on the premises.2
The Federal Labor Standards Act (“FLSA”) also provides guidance. According to the FLSA, any person who performs “work” for the benefit of a private employer is an employee and must be paid.3 “By not providing a definition of ‘work’ … Congress left it to the courts to determine which employment-related activities are compensable under the Act.”4
Courts generally accept the definition of “work” to be all activities “controlled or required by the employer and pursued necessarily and primarily for the benefit of his employer and his business”.5
Therefore, there are two requirements that must be met in order for an event to be considered work. The events must be, a) controlled or required by the employer, and b) necessarily or primarily for the benefit of the employer and his business.6
How Do Courts Consider Whether A Company Controls Or Requires An Activity?
In a Missouri case discussing these federal rules, the charitable events at issue included “working with management to plan blood drives, … visiting various work centers during … work time to encourage other employees to donate … and soliciting donations for United Way.”7 The case opinion fails to mention how much or what kind of evidence was provided, however, the claim survived summary judgment since the employees alleged that at least some of these activities took place partially during work hours and on the employer’s premises.
This case also shed light on the analysis of whether an employer controls or requires an activity. The factors a court considers in this analysis include: whether the employer a) selected the individuals who participate; b) dictated the extent of participation; or c) disciplined individuals for not participating.8 Interestingly, there, the Court ruled that some Committee Meetings that employees held in the office were not compensable because:
a) the union decided who would serve on the committees;
b) participation was voluntary;
c) there was no discipline for non-participation; and
d) even though the employer controlled the possible implementation of procedures derived from the meetings, it was not proper to rule that the meetings themselves were controlled by the employer.9
In a Florida case, an employee of a private company claimed that she was “directed” to attend what she characterized as off-site “business events.”10 She also claimed that the events were primarily for the promotion of the company. The Court opined that if either of her claims (a. that she was directed to attend the events, or b. the events were for the promotion of the business) were true, then her action for unpaid wages could be valid. Her employer argued that the events were for public or charitable purposes and that, at most, the employee was encouraged, not directed, to attend.11
There, the Court denied summary judgment holding that a reasonable juror could find that at least one of the employee’s claims were true. Further, the employer failed to provide evidence that the purpose of the event was charitable and that the employee was not directed to attend.12
If The Employees Truly Volunteer, They Need Not Be Paid For Their Time
The Court in Saphos, also recognized that “an employee is not entitled to compensation for time voluntarily spent” at charitable events.13 A person is considered a volunteer generally when they are motivated (not necessarily entirely) by an “altruistic sense of civic duty … as opposed to the expectation of compensation”.14
The Supreme Court has defined ‘volunteer’ as "an individual who, without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit."15
It has also been held that, “a common-sense approach … suggests that anyone who performs public services without the expectation of compensation, and with no tangible benefits for himself, is volunteering for civic, charitable and/or humanitarian reasons”. 16 However, a volunteer’s motivation does not need to be solely or even predominantly for charitable or humanitarian purposes as long as the services are rendered free of pressure or coercion.17
1. 29 C.F.R. § 785.44,
2. Kayser v. Southwestern Bell Tel. Co., 912 F. Supp. 2d 803, 811 (E.D. Mo. 2012).
3. 29 U.S.C. § 203.
4. Dade Cnty. v. Alvarez, 124 F.3d 1380, 1384 (11th Cir. 1997).
6. Kayser v. Southwestern Bell Tel. Co., 912 F. Supp. 2d 803, 810 (E.D. Mo. 2012).
7. Id. at 807.
8. Id. at 810.
10. U.S. LEXIS 29182 at 11 (M.D. Fl., Orlando April 9, 2008).
11. Id. at 5.
12. Id., but see, Prise v. Alderwoods Group, Inc., 817 F. Supp. 2d 651 at 675 (W.D. Pa. 2001) (stating that encouraging employees to attend charitable events is not necessarily the same as directing attendance if there are no employment consequences for not attending).
13. (internal quotations omitted) Saphos v. Gross Pointe Dev. Co. LLC, U.S. LEXIS 29182 at 10.
14. Brown v. NY City Dep’t. of Educ., 2012 US LEXIS 176212 at 12 (Dec. 12, 2012).
15. Tony & Susan Alamo Fnd. v. Sec’y of Labor., 471 U.S. 290, 295 (1985).
16. Cleveland v. City of Elmendorf, 388 F.3d 522, 528-29 (5th Cir. 2004) (ruling that volunteer police officers in a small town were not compensable employees).
17. Brown v. N.Y. City Dep’t. of Educ., 755 F.3d 154, 169 (2nd Cir. 2014).