FLSA2019-2 — Compensability of time spent participating in an employer-sponsored community service program

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210

FLSA2019-2
March 14, 2019
Dear Name*:
This letter responds to your request for an opinion concerning whether an employee’s time spent
participating in an employer’s optional volunteer program, which awards a bonus to certain
participating employees, is hours worked under the Fair Labor Standards Act (FLSA). This
opinion is based exclusively on the facts you have presented. You represent that you do not seek
this opinion for any party that the Wage and Hour Division (WHD) is currently investigating or
for use in any litigation that commenced prior to your request.
BACKGROUND
You represent that your client provides a n optional community service program for its
employees. Under this program, employees engage in certain volunteer activities that either your
client sponsors or the employees themselves select. Your client compensates employees for the
time they spend on volunteer activities during working hours or while they are required to be on
your client’s premises; however, many of the hours that these employees spend on volunteer
activities are outside normal working hours. At the end of the year, your client rewards the
group of employees with the greatest community impact with a monetary award, and the winning
group’s supervisor decides how to distribute the award among the employees. In making this
decision, the supervisor may consider how many hours each employee volunteered. Your client
does not require employees to participate in the program or direct or control their participation.
Finally, your client is considering using a mobile device application to track each participating
employee’s volunteer hours.
GENERAL LEGAL PRINCIPLES
Congress did not intend for the FLSA “to discourage or impede volunteer activities,” but rather
to “prevent manipulation or abuse of minimum wage or overtime requirements through coercion
or undue pressure upon individuals to ‘volunteer’ their services.” 29 C.F.R. § 553.101. Indeed,
the FLSA recognizes the generosity and public benefits of volunteering and allows people to
freely volunteer time for religious, charitable, civic, humanitarian, or similar public services.
WHD Opinion Letter FLSA2006-4, 2006 WL 561849, at *1–2 (Jan. 27, 2006). A person is
ordinarily not an employee under the FLSA if the individual volunteers without contemplation or
receipt of compensation. WHD Opinion Letter FLSA2018-22, 2018 WL 4562932, at *1 (Aug.
28, 2018). Of course, the volunteer must offer his or her services “freely without coercion or
undue pressure,” direct or implied, from an employer. Id. (citing WHD Opinion Letter
FLSA2006-18, 2006 WL 1836646, at *1 (June 1, 2006); Acosta v. Cathedral Buffet, Inc., 887
F.3d 761, 767 (6th Cir. 2018)); see WHD Opinion Letter FLSA2006-4, 2006 WL 561849, at *2
(citing 29 C.F.R. § 785.44).

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An employer may notify employees of volunteer activities and ask for assistance with them as
long as there are “no ramifications if an employee chooses not to participate.” WHD Opinion
Letter FLSA2005-33, 2005 WL 3308604, at *1 (Sept. 16, 2005); see also WHD Opinion Letter
FLSA2006-4, 2006 WL 561849, at *1–2 (stating that volunteer time was not hours worked
where the employer “actively promote[d] participation in the volunteer activities” but non-
participation did not “adversely affect working conditions or employment prospects”).
Moreover, the practice of compensating employees when they participate in volunteer activities
during normal working hours does not jeopardize their status as volunteers when they participate
in volunteer activities outside of normal work hours. WHD Opinion Letter, 1999 WL 1002361,
at *2 (Jan. 29, 1999).
Additionally, a n employer may use an employee’s time spent volunteering as a factor in
calculating whether to pay the employee a bonus, without incurring an obligation to treat that
time as hours worked, so long as: (1) volunteering is optional, (2) not volunteering will have no
adverse effect on the employee’s working conditions or employment prospects, and (3) the
employee is not guaranteed a bonus for volunteering. See WHD Opinion Letter FLSA2006-4,
2006 WL 561849, at *2–3.
OPINION
The facts you have provided confirm that employee participation in your client’s program is
charitable and voluntary. Your client does not require participation in the program and does not
control or direct volunteer work. It does not appear that the employees suffer adverse
consequences in their working conditions or employment prospects if they do not participate in
the volunteer activities—such as, for example, by receiving a monetary penalty or by being
disqualified from participating in a bonus program. Moreover, your client does not guarantee
participating employees a bonus for their volunteer work. Instead, your client only rewards the
group with the most community impact and gives the winning group’s supervisor discretion to
determine what amount of the bonus, if any, to award to individual employees i n the group. As
such, participation in your client’s program does not count as hours worked under the FLSA, so
long as your client does not unduly pressure its employees to participate. See WHD Opinion
Letter FLSA2006-4, 2006 WL 561849, at *2–3.
As a separate matter, your client may use a mobile device application to track a participating
employee’s time spent volunteering to tally hours and determine which team’s volunteering has
the greatest community impact. But if your client uses the application to direct or control the
employee’s activities by, for example, giving specific instructions about what volunteer work he
or she should do, or how he or she should do it, the time the employee spends following these
instructions is hours worked under the FLSA. See id. at *2 (“[W]hen an employer directs an
employee to volunteer, that time is compensable.”).
We trust that this letter is responsive to your inquiry.

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Sincerely,

Keith E. Sonderling
Acting Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C.
§ 552(b)(7).