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Can nonprofit staff members also serve as volunteers in the organization at which they work? Good question! Small nonprofits with limited staff and volunteers, often see this as a way to get needed roles filled. But it's complicated!
On today's episode, Tim and Nathan dive into what is an important but sometimes murky topic. Important because if not handled correctly, it could lead to legal issues down the road.
By the way...Tim and Nathan are not attorneys so any advice given is from experience only and any action taken should be done so after consulting your organization's attorney.
Here are the 6 points shared on this episode:
To sign up for the Fundraising Fundamentals class mentioned in this episode, go here.
The Hosts of The Practice of NonProfit Leadership:
Tim Barnes serves as the Executive Vice President of International Association for Refugees (IAFR) and can be contacted at tim@iafr.org.
Nathan Ruby serves as the Executive Director of Friends of the Children of Haiti (FOTCOH) and can be contacted at nruby@fotcoh.org.
All opinions and views expressed by the hosts are their own and do not necessarily represent those of their respective organizations.
As an executive director, it's my job to do everything I can to ensure the organization does not get sued. I mean really, it's the least I can do.
Tim Barnes:Welcome to Episode 103 of the Practice of Nonprofit Leadership. I'm Tim Barnes.
Nathan Ruby:And I'm Nathan Ruby.
Tim Barnes:Okay, nathan, I have a question for you. Have you ever been sued?
Nathan Ruby:Um well, is that a trick? Question Tim.
Tim Barnes:Not really. It's kind of more of a yes or no question.
Nathan Ruby:Oh well, in that case, no, Nope, I have never been sued.
Tim Barnes:Okay, I'll take your word for it. Well, that's good, Nathan. I appreciate that. I have a feeling that answer could have gone either way, but it's a good segue into today's topic of how not to get sued.
Nathan Ruby:Yeah, and a nonprofit can, and actually does, get sued. Is it likely that your organization will be sued? Well, yeah, it's probably pretty low. However, there are some easy things that you can do to limit the chances that you might get sued.
Tim Barnes:Now today we're going to talk about a very common practice at smaller organizations that actually could land you in hot water, could take you into the courtroom, and that is using paid staff people as volunteers. So to get us started and help define this, nathan's going to talk to us a little bit about the definition of a volunteer, as the Department of Labor uses that term. Oh, but wait a minute before Nathan gets going. This is our reminder. It seems like we've been doing a lot of these lately, nathan, but this is a reminder that neither Nathan or I are attorneys and this is not legal advice. While there are federal laws around this topic, there may also be state and local laws as well. So if you think you might be wondering about this more or there may be a chance you've done some things maybe you shouldn't have it's really important you consult an attorney and see how this law in particular applies to you specifically. So, nathan, we're not attorneys, but go ahead and give it your best shot here, okay?
Nathan Ruby:All right. Yeah, you're right, tim. I think this is like the third episode in a row where you've had to make that statement. So, anyway, that's good. It's good so that we don't get sued, tim. But yeah, that's a good thing, so all right. So here's the definition of a volunteer, as defined by the Department of Labor. There's four things. One activity is less than full time. That's number one. Number two the volunteer time is for a civic, charitable or humanitarian purpose, without any expectations or receipt of compensation by the employer. That's two. Number three is the employee is truly and freely volunteering their time without any implied or direct coercion from the employer. And number four if regular employees have been displaced to accommodate the volunteer. So those are the four definitions by the Department of Labor. So, before we get into the main topic for today, tim, let's just kind of set an example of where this might apply. So let's say that you're going to have your big annual auction. You've got, you know, maybe a hundred people coming, a hundred and fifty people coming, you're going to have an auctioneer to come, and it's a big night and everybody's there and, you know, the night goes on. It's a great success. And then, on the way out the door. Well, people have to pay for the items that they bought. So there sits your accounting office or your account, your paid accounting staff, and they are taking money and running credit cards and handing out receipts and doing all the things that financial people do, tim, and that is that's the example. Are the two people sitting there that are employees? Are they on the payroll for that night or so? Are they on the clock? Are they getting paid for the four hours that they've been there? Or are they volunteering their time? Because they're good people and they love the organization and they want it to be successful and it's a fundraising event, so why wouldn't they volunteer their time? So that's what we're talking about. That's the. That's the example, the easiest example. There's other examples, but that's an easy one.
Tim Barnes:And I think it's more prevalent in smaller organizations where you have fewer staff, fewer people, you know, even fewer volunteers real volunteers. It gets muddy sometimes when you're trying to pull some of these things off, and it's really important that we take a good look at this.
Nathan Ruby:Yeah, because you can. You can get yourself in trouble if you don't do this right.
Tim Barnes:Everything is great until it's not right. I think it's what we're saying. So you get a staff person that gets disgruntled and they come back and go. Well, I, you know, didn't get paid for doing X, y and Z, and that's why it's important to take take consideration.
Nathan Ruby:Yeah, it's kind of like insurance it's nobody wants to pay the premium until you've had a claim, and then it's it's a pretty good thing that you've paid that premium, so okay. So let's look at these. There's six key areas that you need to look at. All right, number one is verifying that the employee is freely volunteering. Now, this one I don't know. I kind of have a, I kind of have a hard time with this one, because how do you, how do you verify that the employee, the staff person, was absolutely under no pressure or expectation of volunteering? I mean, there's all kinds of times where I don't know, tim, I don't want to say it's an implied, but it's a, it's not a wink, but it's a. Hey, it'd be great if you could do this. Or I mean, how do you judge whether that employee is absolutely volunteering with no pressure, freely volunteering? I don't know how you actually define that, tim.
Tim Barnes:Shouldn't I ask you, Nathan, do you feel like this has more to do with someone who is is actually paid hourly, as opposed to someone who maybe has a salary? Is it a little more murky if it's a salaried person, or what do you think about this?
Nathan Ruby:Yeah, I, I don't know. That's a good question, tim. I'm not. I'm not sure of the answer of that, because you can have it's. It would be really easy to if you had a person, a staff person, that was a little on the introverted side and wasn't wouldn't necessarily speak up on something, and they're seeing, you know, there's six other staff people, or two other staff people, whatever the number is that are. You know they're volunteering. So well, okay, I guess I guess I have to too. Well, is that, is that freely volunteering, or is that peer pressure? Is that peer pressure volunteering? I don't know. So, needless to say, tim, we can't even figure it out right here, so let's just call that one a murky one. That's one you have to be careful of, all right. So, number one, just say it again verifying that the employee is freely volunteering. Number two make sure the type of volunteer work is not similar to an employee's regular duties. So that one actually caught me by surprise when I read these for the first time, because you know the example that we used at the beginning on describing this how many times have I, you know, been working with an organization, either, an organization, even an organization that I've led, where the accounting office. They are sitting there. Who is more trained to handle cash and handle transactions at an event like that? Then you're accounting staff. I mean, duh, you're not going to ask the you know the folks from the maintenance shop to do that. You're going to ask the accounting people to do that. Well, that's if you're. If they're volunteering at your event, somebody from your accounting office is volunteering to run the cash, the cash machine at your event, you are, you're breaking the law. That is not legal. So I don't know you got. And, the same way, it's not just the accounting people. You know what if you had? What if somebody from your kitchen, if you serve food in your organization, what if somebody from your kitchen is at the venue that night and they're just, you know, helping to make sure that the desserts on the dessert table are refreshed and look good?
Tim Barnes:So we're basically saying that if the you may think you're volunteering, but if you're doing work that's similar to what you're getting paid for, you should probably be paid for doing it at that.
Nathan Ruby:at that event, yeah, and as the executive director, you know we've got four more to go here, but already you can kind of see that it may make more sense for you, as the executive director, to say, hey, I really appreciate you volunteering to to do that at our event, but you know, I'm just going to pay, you know, whatever your rate is, or you know, twenty bucks an hour, fifteen bucks an hour for three hours, and you know, we're just gonna, we're just gonna be on the safe side. Uh, so, and that's only after two tim, we got four more to go. So, all right, let's keep going here. Number three ensuring that the volunteer work being done by an employee volunteer does not displace a regular employee position. Now, I would say this is probably more geared towards ongoing activities as opposed to a single event like a fundraising event. So this is actually uh, this is actually something that I did for a while. Um, I was with a very small organization and I was fundraising and they were low, low budget, small organization. And you know, some of us when the sometimes when the yard need to be mowed, or, you know, things need to be picked up, or you know the hedge need to be trimmed, you know we just, you know, come in on a saturday or come in off time and you know, hop in and help and, just you know, take care of it. We just you know, we just did it ourselves. Well, we didn't have to have a full time employee to do that, because we were volunteering our time to do that. And again, you can't do that. So if, if the volunteer work is displacing a full-time regular employee, that is again that's against law.
Tim Barnes:So don't do that I hope this is making sense to everybody who's on here, but there are some, there's challenges that we need to consider for sure. Well, let's, uh, we're gonna take a break and uh share some, some other stuff. That's going on and we'll be right back let's be honest with each other.
Nathan Ruby:Fundraising can be difficult, but it doesn't have to be just like learning anything else. You have to learn the fundamentals before you master a new skill. That's why tim and I are offering a new class called fundraising fundamentals on thursday, october 19th, at noon central. In this one hour class, you will learn fundamentals such as why do people give, how do I encourage people to give to my organization, how do I fit fundraising into my already overwhelmed schedule, and a lot more. This class will be fun, interactive and give you a solid base by which you can begin to build your fundraising muscle. If fundraising success has remained elusive, if you know in your heart your organization should be raising more dollars, but you just can't figure out how this class is for you, click on the link in the show notes and you'll be able to register. It's gonna be a good class. I hope to see you there. All right, we're back. All right, here we go. Number four making sure the volunteer work is done outside of regular hours. Now this is another one that can. That can really trip you up. So if you're, let's say, your staff person works a second shift and they are coming in on a day that is not their regular day to work, but they're coming in at second shift, so they're coming in. You have an evening event. It's on a saturday. They typically work monday to friday, second shift. They're coming in saturday to volunteer because, gosh, they love the organization and they want to do something to help. They're coming in on their day off, but during their regular shift. That is that's what this is talking about. So you got to watch the hours in which they are working or volunteering. So that's number four. Number five do not compensate for employee volunteering. So what does this mean? Well, that means, you know, a lot of times you'll get volunteers may get a goodie bag or they may get a freebie for coming in to volunteer. Well, you have to be really careful with that because, according to the Department of Labor, compensation paid to volunteers should be nominal. Well, the problem with nominal is the Department of Labor. They don't really define what nominal is, so it's up to us to figure out. Okay, well, what is nominal? Well, kind of a little bit of guidance on that is that not to give more than 20% of what an employer would otherwise pay for that service. So what does that mean? So let's say that you have your annual gala and you have staff serving as volunteers at the check-in table. Your staff working the table are from your maintenance department and they report their normal and they report for their volunteer assignment at 5pm. Now, this is okay because they're maintenance staff, so they are not working the front desk at your organization. They're not greeting people that come in the door at your organization. They're from the maintenance department, so it's a totally different, you know, volunteer assignment than what they do during the day. They're coming in for their volunteer assignment at 5pm and they're good on that because they work first shift in the maintenance department and they're usually off at 3.30. We got that good. They're not doing what they normally do and they're volunteering on an off shift. All right, so we've got that. Now, if you were going to pay someone to work at the check-in desk let's say I'm just going to use $20 for easy math and you would need them to work for $3. So 20 times 3, that'd be $60. So $60 total. So you cannot give a gift, a goodie bag or you know, a volunteer gift, some swag any more than 20% of that $60. So check my math, tim. What is 20% of 60? That's like 12 bucks, I think, isn't it? Yeah, that means, tim, that if you give a volunteer one of your staff volunteer a t-shirt, that t-shirt's probably worth 12 bucks. So anything more than that, you could be in violation of that section. So, anyway, you, just you have to be careful with giving away goodie bags and swag to your volunteers, especially if they're staffed.
Tim Barnes:So we're talking about any kind of volunteer at this point, but we're especially concerned about people who are paid staff, who are showing up to volunteer in the evening, correct?
Nathan Ruby:Yes, yes, that is true. This one is for volunteers any volunteer, also volunteers that are serving as staff. Yeah, this gets a little complicated, Tammy, kind of going around and around in circles here a little bit, All right, so that's number five. So one more. It's number six. Ensuring the nature of the work is in keeping with the typical types of volunteer work. This one is also a little eclectic. What this one's talking about is if you a best example is if the organization has what is called an unrelated business, and the easiest example here is there's a lot of nonprofits that will have a thrift store attached to it. So they use the store as a way to generate money. But then they also use the store as part of their programming, so people that come through their programs then they can get a job there, they can learn job skills, and so it becomes part of the organization's program. Well, if you are a staff person working at the nonprofit, you cannot volunteer at the thrift store. You can work there, but you have to be paid to do it. You cannot volunteer at that organization. So if the so the same way, another example would be a gift shop, If your organization has some type of a gift shop on premise. So staff cannot volunteer there. They have to be compensated, they have to be paid for that. So that's one that will trip you up to. There's a lot of organizations that have thrift stores, so something you got to be paid attention to. So there you go, Tim. Those are the six key things that you have to be paying attention to when your staff volunteers to volunteer. Those are the six things that you got to be paying attention to.
Tim Barnes:Those are really important things to keep in mind and I you know you may be thinking it's not that big a deal, is it? But as an executive director, we're always responsible for those kind of decisions. But it's important for us to know what we're doing and I will say anything. We will drop these points into the show notes and I would encourage you if you're like I'm a little fuzzy here look at those, look at those points. You can either listen to the podcast again or we actually have a transcript. If you'd like to see what we talked about, you can download the transcript and go through it. It is important that you you take some time to consider these points If you're leading a small nonprofit organization.
Nathan Ruby:Yeah, and this is this actually. It comes up. I was talking to a friend of mine the other day who's in the nonprofit world. He's operations director for a little larger organization, but they were having a fundraising event and they parking was going to be an issue. So he and his crew had to go in and, and you know, be there out in the parking lot taking care of parking. And I said I made a comment about extra pay or overtime pay or something like that. It was a, it was a. You know I'm a pretty funny guy, tim. So it was. It was a very good joke. I just can't remember what I said. And he said oh no, we're volunteering. And it was like ding, ding, ding, ding. I mean it. So these are real situations that happen. And you just, all I want you to do as an executive director is, when this stuff comes up, I want you to say, oh my gosh, tim and Nathan talked about this once and I need to look it up. And if you just, you can just Google this stuff and it'll pop up, and so there's. Or, like we said at the beginning, go talk to your attorney, but just just know there's some issues that you have to be paying attention to. Volunteers can be an amazing tool in every executive director's toolbox. Volunteers can bring skills and expertise that your staff don't have, and they can certainly allow the organization to accomplish bigger things without negatively impacting the budget. Can you use staff as volunteers? Yes, there is no question that that can be done. However, you need to make sure that you are following the rules. In our experience and we see many, maybe even most, nonprofits often violate these laws. All it takes is for one disgruntled former staff person to report your organization and you could end up with a costly litigation, punitive fines and a few days on the front page of a local paper. If you are going to do it, do it right.
