reserve peace officers

As we are in the midst of the holiday season, employers need to be mindful about the parameters that may apply when granting employees time off to volunteer, paying employees to volunteer to support a cause, and other potential issues involving volunteer time.  This topic was raised as a suggestion from a regular reader of the blog, and if you have any topics you would like to see covered, please let me know.  This Friday’s Five covers five issues employers need to be aware of regarding time off and pay issues for volunteer time:

1. When does an employer need to pay for employee’s volunteer time?

The California Division of Labor Standards Enforcement (DLSE) issued some guidance for California employers in an opinion letter addressing whether workers for religious organizations are employees or volunteers.  The DLSE took the position that “the intent of the parties is the controlling factor.  If the person intends to volunteer his or her services for public service, religious, or humanitarian objectives, not and an employee and without contemplation of pay, the individual is not an employee….”  The DLSE continued explaining that employees of the religious, charitable, or non-profit organization can donate services as a volunteer, but these services cannot be of the “usual services of that employees’ job.”

The United States Department of Labor issued an opinion letter on the issue under federal law similar to California’s DLSE.  The DOL maintained that “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.”

The DOL explained:

Therefore, the employer need not compensate an employee for time spent volunteering for charitable purposes if the work is performed outside of normal working hours and the employee is truly volunteering, not performing the volunteer work as a result of coercion or pressure by the employer.

The DOL’s opinion letter sets forth that under federal law, an employer who encourage employees to volunteer for “public or charitable purposes” outside of normal working hours is not obligated to pay wages to the employee as long as participation is optional.  If the employee does not participate in the volunteer activity, this “will not adversely affect working conditions or employment prospects.”

2. Volunteer firefighters, reserve peace officers or emergency rescue personnel are provided with protected time off under California law. 

California’s Labor Code, Sections 230.3 and 230.4 provide leave protections to employees who volunteer as a firefighter, reserve peace officer, and emergency rescue personnel.  An employer cannot not discharge or discriminate against an employee for taking time off to perform emergency duty as a volunteer firefighter, a reserve peace officer, or emergency rescue personnel.  In addition, employers with 50 or more employees must allow employees to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, for the purpose of engaging in fire, law enforcement, or emergency rescue training.

3. Civil Air Patrol members are provided protected time off under California law. 

Labor Code sections 1501 and 1503 provide that employers are required to allow employees no less than 10 days per calendar year of unpaid Civil Air Patrol leave to an employee who responds to an emergency operational mission of the California Wing of the Civil Air Patrol.

4. Employers need to be careful in permitting volunteer time for certain limited causes. 

If employers do allow employees unpaid time off to volunteer for certain causes, the employer should be careful that the causes supported by the company are not viewed as supporting one political view or cause.  For example, Labor Code section 1101 prohibits employers from forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.  The law also prohibits employers from “controlling or directing, or tending to control or direct the political activities or affiliations of employees.”  Section 1102 prohibits employers from coercing or influencing employees through the threat of discharge or loss of employee to “adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”  Employers developing a volunteer time off policy must keep these requirements in mind in order to avoid any potential claims that the policy violates this labor code section.

5. Approach unpaid internships with caution. 

Sometimes workers that are young or are looking to break into a new industry will volunteer as an intern without pay for a company or individual to learn the industry and develop contacts.  In April 2010, the DLSE issued an opinion letter setting for the analysis it would conduct in making a determination regarding whether an intern is properly classified.  In its opinion letter, the DLSE set forth that it would examine the following factors:

  1. The training, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in a vocational school;
  2. The training is for the benefit of the trainees or students;
  3. The trainees or students do not displace regular employees, but work under their close observations;
  4. The employer derives no immediate advantage from the activities of trainees or students, and on occasion the employer’s operations may actually be impeded;
  5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
  6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

While these factors are a fairly loose test, an intern attempting to challenge the classification as an intern would probably have at least a few good facts to support their position. This is why California employers need to approach the intern classification with caution.