Under the US’s Fair Labor Standards Act, however, volunteer work for a for-profit business is illegal.  Agricultural workers are exempt from the FLSA’s minimum wage and overtime protections; however, the US government still considers them employees. Therefore, if a farmer “volunteers” to help his friend bring in a crop, the federal government considers that volunteer farmer to be an employee and may fine the friend for not paying employment taxes and not providing worker’s compensation to the volunteer, among other violations of state and federal law.

In 2004, Hmong, Mien, and Lao refugee farmers in California’s fertile Central Valley began to receive citations from the state labor agency because they were sharing their work reciprocally. The California Division of Workers’ Compensation has fined individual farmers between $14,000 and $26,000 each for noncompliance with just the worker’s compensation requirement.

Lawmakers introduced a bill in 2009 that would exempt very small farms (with owner taxable income less than $10,000) from the workers compensation requirements. However, unions and other groups opposed the law, because they argued that all workers need to be protected on the job.

The Sustainable Economies Law Center has begun a legal clinic for these farmers called the Refugee Farmer Project; this clinic has held legal advice sessions for farmers and has developed training materials and other resources. Check out what the SELC is doing here!

While this particular story is about rural farmers, urban farmers who are not part of nonprofit organizations must be careful about the kind of help they accept. This free help could end up costing a lot of money in fines and back pay to your “volunteers.”

If you live in Maryland and have questions about your particular organization or project, contact the Community Law Center for resources!

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

• the Community Law Center, and
• the Maryland Volunteer Lawyers Service.

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.

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.

The post Volunteers, Employees & Interns. appeared first on Community Law Center.