Volunteers

Who is a volunteer?

Under FLSA:

  • Individuals who donate their services
  • Usually on a part-time basis
  • For public service, religious or humanitarian objectives
  • Without contemplation of pay are not considered employees of the religious, charitable or nonprofit corporation that receives their services.

Under NY Labor Law:

  • “[A] person who works for a nonprofit- making institution under no contract of hire, express or implied, and with no promise of compensation, other than reimbursement for expenses as part of the conditions of work.”

 

Can I pay my volunteers a small sum?

Dangers of compensating volunteers:

  • Minimum wage violations
  • Health insurance benefits
  • Pension/retirement benefits

Permissible Reimbursement:

  • Reimbursement for reasonable shipping expenses paid to volunteers required to return materials used in connection with their volunteering.
  • Reimbursement for out-of-pocket expenses (i.e., meals, books, supplies, transportation, tuition for classes to learn how to perform volunteer services).

 

Factors to Consider

  1. The entity receiving the services (civic, humanitarian, charitable, religious, public-service)
  2. Is there a promise or expectation of compensation?
  3. Did the volunteer offer his/her services freely and without direct or implied coercion?
  4. Does the volunteer provide services on a full-time or part-time basis?
  5. Are regular employees displaced?
  6. Are the services provided the type of services generally considered to be volunteer work?
  7. Is the person already employed by the organization to provide the same services?

 

INTERN vs. EMPLOYEE

 

Err on the side of CAUTION!

Design programs with the interns’ benefits in mind (who is the primary beneficiary?)

Structure the program around the academic experience of the interns (recommend coordinating the program with an educational institution so interns get school credit)

Provide close supervision and mentoring

Do not use interns to displace your workforce or avoid overtime during busy periods

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Courts and legislatures have increasingly addressed the issue of unpaid internships over the last few years
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It is critical that employers with internship programs do not treat interns as “free labor” who displace regular employees
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Interns not covered by minimum wage laws

 

Based on the Walling v. Portland Terminal Co., 330 U.S. 148 (1947) decision, the Federal Department of Labor developed a six-factor test to determine whether an individual is a bona fide intern or an employee:

  • An employee is “any individual employed by an employer” under the FLSA
  • The FLSA defines employ as “to suffer or permit to work”
  • “Intern” is not defined in the statute
  • According to recent Federal Department of Labor publications on the subject (both published in 2010), ALL six factors of the test must be met in order for an individual to be excluded from FLSA guarantees:
  1. Training is similar to what would be given through academic or vocational training; 
  2. The training is for the benefit of the intern; 
  3. The interns do NOT replace regular employees, but work under close supervision of existing staff; 
  4. Employer providing training derives NO immediate advantage from the intern’s activities; on occasion may even have operations impeded by the intern;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; 
  6. Employer and intern understand that the intern is not entitled to wages for the time spent in the internship.
  • Paying a stipend to interns does NOT create an employment relationship so long as the stipend does not exceed the reasonable estimation of expenses incurred by interns in the program
  • The Federal Department of Labor is being very proactive in this area because interns often do not come forward out of fear – though that is increasingly less the case

New York State Department of Labor  Test

State law must also be taken into account

 

The New York State Department of Labor uses an eleven-factor test for evaluating intern classifications under the state’s Minimum Wage Act and Wage Orders. Many of the factors are similar to those under the Federal DOL test, while others are different…

 

Factors Similar to the Federal DOL Test:

  1. The training is educational in nature and similar to what would be given in an educational environment
  2. The training is for the intern’s benefit.
  3. The intern does not displace regular employees, and is closely supervised.
  4. The company derives no immediate advantage from the intern’s activities.
  5. The intern is not entitled to a job when the internship ends.

Factors Specific to New York State’s DOL Test:

  1. The interns are notified in writing that they will not receive wages and are not considered employees for minimum wage purposes.
  2. The training is supervised and directed by people who are knowledgeable and experienced in the activity.
  3. The interns do not receive employee benefits.
  4. The training is general, and qualifies the interns to work in any similar business – not designed specifically for a job with the employer offering the program.
  5. The screening process for the internship program is not the same as for employment, and does not appear to be for that purpose (it only uses criteria relevant for admission to an independent educational program).
  6. The advertisements, postings, or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.

 

IMPORTANT NOTE ABOUT STUDENT INTERNS AT NOT-FOR-PROFITS: New York law, sets out a lower standard for nonprofits’ student interns. That being said, the safest course of action is following the 11-factor test. (https://labor.ny.gov/formsdocs/factsheets/pdfs/p726.pdf)

 

Discrimination with INTERNS

The City and State of New York recently passed amendments to their respective Human Rights Laws, extending their protections to paid and unpaid interns. Interns (paid and unpaid) are protected from discrimination and harassment based on protected characteristics (e.g., race, gender, religion, etc.)

 

Make Sure To:

 

Clearly articulate the interns’ duties

Make clear that the internship is not paid

Do not create an impression that the program will lead to a job

And when in doubt, pay your interns minimum wage!
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NY Minimum Wage = $9.00/hour (but set to rise!)
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Approximately $3,600 for a 10-week program

 

Contact Us

Managing Attorney

Angel A. Castro, III, Esq.

60 Broad Street

24th Floor
New York, NY

10004 

 

 

Phone: (646) 234-3177
Fax: (212) 731-0217

 

Hablamos Espanol

Visita
CNYabogado.com

 

Serving the New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Westchester, and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.

Meetings

We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.

This website contains general info. about AA Castro C.L.A.N, PLLC and is not intended to serve as a source of legal advice.

 

Neither receipt of information presented on this site nor any email or other electronic communication sent to Castro CLAN PLLC or its lawyers through this site will create an attorney-client relationship, and no such email or communication will be treated as confidential. No user of this site should act or refrain from acting on the basis of information on this site without seeking legal advice from counsel in the relevant jurisdiction. Castro CLAN PLLC expressly disclaims liability with respect to actions taken or not taken based on the contents of this site.

 

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