Last month, the federal Department of Labor issued an Opinion Letter 2026-12 addressing when non-profit employees can volunteer for their employer without additional compensation. The DOL has long taken the position that employees may not volunteer without expectation of compensation to perform duties that are the same or similar to their regular compensable work. In addition, if an exempt employee volunteers similar work, the employer must be careful that the employee’s primary duty remains exempt work or those employees would be entitled to additional compensation. This particular work involved socializing puppies at home to become service animals. The duties of office workers and veterinarians were dissimilar enough from the tasks of socializing puppies at home and, thus, could be voluntary. However, the compensable duties of exempt dog trainers were too similar to be volunteer work. Further analysis would be required to determine whether raising puppies changed the primary duty of their exempt position. “If the employee remains exempt under the applicable duty and salary tests, the employee’s salary could serve as compensation for any hours spent raising puppies at home, and no additional compensation would be required.” This is because, “an employee who is exempt from the minimum wage and overtime requirements under section 13(a)(1) may perform additional juvenile canine socialization work without additional compensation if the employee’s primary duty remains the performance of exempt work and the employee continues to satisfy the salary requirements for the exemption.”
The DOL has long applied by analogy FLSA regulations
applying to government work to non-profit agencies.
[A]n employment relationship does
not exist when a public sector [i.e., government] employee volunteers to
perform services to the employing public agency, so long as the individual
receives no compensation to perform the volunteer services,3 and such services
are not the same type of services for which the individual is employed to
perform for the public agency. 29 U.S.C. § 203(e)(4)(A). In addition, the
Division’s regulations clarify that individuals are volunteers “only where
their services are offered freely and without pressure or coercion, direct or
implied, from an employer.” 29 C.F.R. § 553.101(c). . . .
Although the FLSA does not include
a similar express provision for private, nonprofit employers, the Division has
consistently applied the same requirements to employees of religious,
charitable, or nonprofit organizations who volunteer their services to their
employing organization for civic, charitable, or humanitarian reasons. . . .
Accordingly, an employee of a
nonprofit organization may, freely and without coercion from the employer or
its agents, volunteer to perform work that is neither the same nor of similar
type as the work that the employee is employed to perform. Put another way, a
nonprofit employee cannot be both a paid employee and a non-paid volunteer
while performing the same type of work for the same employer … . .When a nonprofit employee volunteers to
do the same type of work that the employee is employed to perform, the Division
has long considered that volunteer work an indivisible part of the employment
relationship for FLSA purposes, and, as such, it may constitute hours worked. . . . Additionally, employees cannot agree, or
be required to “agree,” to waive their rights to compensation under the FLSA
under the guise of volunteering.
If an exempt employee volunteers to perform work that is the
same or similar to his or her regular duties, the employer need not necessarily
pay extra salary or compensation unless the amount of so-called volunteer work
involves non-exempt aspects of the employee’s job and the employee’s primary
duties are no longer exempt duties.
An employee’s exemption status can
become relevant, however, if the “volunteer” work does not satisfy the
conditions for volunteering required by the Act and explained in the Division’s
regulations, including, for example, if the volunteer duties are of the same or
similar type as those the employee is employed to perform, and thus are part of
the employment relationship. In those circumstances, for a non-exempt employee,
the employer must pay for all combined hours worked, including any “volunteer”
hours, pursuant to the Act.
In analyzing job duties in comparison to the tasks of
raising puppies at home, the DOL concluded that exempt veterinarian and office
workers could volunteer to raise puppies, but exempt dog trainers could not
volunteer without further analysis of how the non-exempt work of raising
puppies affected their primary duty test.
Based on a general understanding of
the work that veterinarians typically perform, we assume for the purposes of
this letter that the veterinarians’ duties involve providing medical care to
the canines, such as diagnosing and treating sick or injured dogs, and do not
include providing non medical care to, training, or socializing juvenile
canines. Likewise, we assume for the purposes of this letter that the
directors’ duties involve supervising employees and do not include directly
caring for, training, socializing, or otherwise interacting with the juvenile
canines. As such, the veterinarians’ and directors’ duties would be
sufficiently different from the routine care, socialization, and early training
involved in raising juvenile canines, and veterinarians and directors could
volunteer to provide these services in their homes . . .
The result is different for
trainers. As discussed above, juvenile canine socialization includes not only
routine care but also training. If the nonprofit employs trainers to provide
specialized training for canines, as your letter implies, or to care for or
socialize the canines, those duties would likely be the same or sufficiently
similar to the services performed by juvenile canine caretakers, such that the
trainers may not volunteer for your organization to care for or train canines
at home. . . . This is true regardless whether the employee
also performs other work, including exempt work, or whether the employee’s
primary duty for purposes of the section 13(a)(1) exemption is caring for or
training canines.
For veterinarians and directors
whose job duties differ sufficiently from those involved in juvenile canine
socialization, the time the employee spends as a volunteer juvenile canine caretaker
would not be part of the employee’s employment relationship with your
organization for FLSA purposes. In contrast, if the services you employ the
employee to perform involve the same or similar type of activities as those
involved in juvenile canine socialization, the volunteer hours are part of the
employment relationship and must be counted as hours worked for FLSA purposes
as long as they qualify as compensable worktime under the FLSA.. . .
Because the volunteer work (which is sufficiently dissimilar
from regular job duties) is not considered to be work under the FLSA, no
further analysis is required to determine whether the employee’s exempt status
is affected. However, for the exempt dog
trainers, further analysis would be required to determine whether raising
puppies at home would change the primary duty of their position and affect
their exempt status. “If the employee remains exempt under the applicable duty
and salary tests, the employee’s salary could serve as compensation for any
hours spent raising puppies at home, and no additional compensation would be
required.”
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
