Volunteers, Employees & Interns.

On May 22, I attended a videoconference of a workshop entitled Managing VolunteersUnderstanding the Legal Impact, sponsored by Pfizer, DLA Piper, Habitat for Humanity, and Dorot.

Our local Baltimore videoconference site, held at DLA Piper’s beautiful office in Mount Washington, was also co-sponsored by:

The seminar was a terrific employment law refresher, and included lots of important points for community gardens and urban farms.

Probably the most important point of the day was that both not-for-profit and for-profit organizations MUST differentiate carefully between employees and volunteers. 

Volunteers v. employees at a for-profit farm or garden.

It is illegal for for-profit businesses (including farms) to use volunteer labor. Therefore, all workers at a for-profit farm or garden MUST be employees. If there are non-employees (even friends and family) working at your for-profit farm or garden, that is a huge legal problem and you may owe back wages to the worker and back taxes and fines to the state or federal government, or both.

For-profit organizations may have unpaid interns, but they must follow a strict set of rules about the intern’s duties:

  • The internship must be similar to training given in an educational environment.
  • The internship experience is for the benefit of the intern, not of the organization.
  • The intern does not displace regular employees but works under close supervision of existing staff.
  • The employer derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded.
  • The intern is not entitled to a job at the conclusion of the internship.
  • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Volunteers v. employees at a nonprofit farm or garden.

Volunteers

Employees

Provides services to not for profit organizations. Provides services to nonprofit OR for-profit organizations.
Without promise, expectation, or receipt of compensation (or employment). In exchange for compensation. Compensation doesn’t have to be wages/salary; it can be room, board, medical coverage.
Absence of coercion. Subject to some form of “control” by the organization (e.g., employee’s schedule, conduct, how & what services are provided).

In order for their volunteers not to be classified as employees, nonprofit farms and gardens must be careful not to provide compensation to their volunteers. Compensation doesn’t have to be in the form of money; it can include produce or room and board.

The Department of Labor has stated that nonprofits can give volunteers small gifts of appreciation, as long as the gifts are not tied to productivity and as long as they are worth 20% or less of what an employee doing the same work would earn. Volunteers can also be “made whole,” or reimbursed for the expenses they undertake while volunteering (e.g., gas money or bus fare, lunch).

According to the Sustainable Economies Law Center, in recent years, state agencies throughout the country have been increasing their enforcement of employment laws; an audit from a state agency could reveal that an organization has been treating volunteers as employees, and could issue heavy fines as well as require payment of back wages and back taxes.

Employment law is very important for nonprofit organizations to understand! If you have specific questions about your own organization, contact a local attorney.

Posted on by Kristine Dunkerton

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