Nonprofit employees are often deeply committed to the mission of the organizations they serve. That commitment sometimes leads an employee to offer to help at a fundraising event, participate in a weekend program, or perform other services without pay. The offer may be entirely sincere. It also may create an unexpected wage-and-hour problem for your nonprofit organization.

Why? The federal Fair Labor Standards Act (“FLSA”) does not allow an employee simply to waive the right to be paid for compensable work. Calling an employee a “volunteer,” obtaining the employee’s written consent, or moving the work outside normal business hours does not necessarily change the result. If the employee is actually performing work within the employment relationship, the nonprofit must treat the time as compensable work time.

The U.S. Department of Labor’s Wage and Hour Division (“DOL”) recently addressed this issue in Opinion Letter FLSA2026-12 (“Opinion Letter”). The Opinion Letter provides a useful road map, while also illustrating why nonprofits must carefully examine the employee’s actual job duties and proposed volunteer services rather than relying on titles or good intentions.

The Service-Dog Organization That Prompted the DOL’s Guidance

The circumstances involved a nonprofit organization that breeds and trains service dogs. Some of its employees -- including veterinarians, service-dog trainers, and directors who supervised trainers -- wanted to volunteer outside normal working hours to help the organization by raising and socializing puppies in their homes. The DOL concluded that veterinarians and directors generally could volunteer their time, if their regular jobs did not involve the routine care, training, or socialization of the dogs. Trainers, however, presented a different problem. Their paid duties included training, caring for, or socializing dogs, raising and training puppies at home would likely constitute the same or similar services they provide as an employee. Therefore, the nonprofit could not treat the work by the trainers as unpaid volunteer service merely because the trainers offered to perform it at home.

The lessons in the Opinion Letter extend to volunteer circumstances well beyond service dogs. A nonprofit’s finance employee, for example, might be able to volunteer as a weekend race marshal, while a paid youth counselor may not be able to “volunteer” to supervise children on an evening trip. An administrative assistant might volunteer to distribute meals at a community event, while an employee whose regular job is coordinating food distribution may not be able to perform the same work without pay.

Start With the Work, Not the Employee’s Job Title

The most important question for a nonprofit organization to ask is whether the proposed volunteer services are the same as or similar to the services the employee is paid to perform. This is a factual inquiry. A nonprofit should compare the employee’s actual responsibilities -- not merely the written job description -- with the job duties for the proposed volunteer role. Different job labels will not cure substantial overlap. Calling someone an “event volunteer” does not help if the employee’s regular job includes planning and staffing the same event. Likewise, separating the work by time or location does not make otherwise identical duties different. The service-dog trainers could not perform unpaid training at home simply because their paid training as an employee occurred at the nonprofit’s facility.

The DOL will also consider whether the volunteer work is closely related to the employee’s assigned job responsibilities. When the comparison is close or uncertain, the prudent approach for the nonprofit is to treat the time as compensable work time.

The Employee Must Be Genuinely Free to Decline

Volunteer services also must be offered freely, for charitable, civic, humanitarian, or similar reasons, without direct or implied pressure from the organization. The employee must have no expectation of compensation for performance of the volunteer services. Employee coercion is not limited to an express instruction to work without pay. Pressure may be implied when supervisors solicit volunteers, participation is described as evidence of commitment to the mission, employees believe attendance will affect their performance reviews or advancement, or the organization repeatedly depends on staff members to fill volunteer shortages. A supposedly optional event can become problematic if employees reasonably understand that attendance is an employer expectation.

Nonprofit boards and executive directors should be especially mindful of organizational culture. Mission-driven employees may feel substantial pressure to help even when management never uses the word “required.” Employees should be told clearly that volunteering is optional, declining will have no employment consequences, and volunteer service will not result in preferential treatment. Volunteer services ordinarily should occur outside the employee’s normal working hours and should not displace paid workers or satisfy an ongoing need that otherwise would require paid staff. A nonprofit also should avoid tying payments, benefits, or other rewards to the amount or productivity of volunteer service. Reimbursement of legitimate expenses, reasonable benefits, or a genuinely nominal fee may be permissible in limited circumstances, but each arrangement should be reviewed carefully under applicable DOL/IRS rules before payment is offered.

Exempt Status Does Not Decide Who Is a Volunteer

One of the Opinion Letter’s most useful clarifications is that the threshold volunteer analysis applies to both FLSA exempt- and nonexempt-from-overtime employees. An exempt executive, administrator, or professional does not automatically become a permissible volunteer merely because that employee is paid on a salary basis.

Exempt status matters primarily when the purported volunteer service fails the test. If a nonexempt employee’s additional activities are part of the employment relationship, the nonprofit generally must record and pay for the time, combining it with the employee’s other hours when determining minimum wage and overtime obligations.

An otherwise properly exempt employee may perform additional work without extra compensation if the employee continues to satisfy the applicable salary and duties requirements. However, substantial nonexempt work may change the employee’s “primary duty” and jeopardize the exemption. A nonprofit should not use an employee’s salaried status as a shortcut around the volunteer analysis.

A Practical Review Process

Nonprofits should require employees to obtain advance approval before being permitted to volunteer their time for their employer. The review should identify the proposed activities, when and where they will occur, who initiated the request, how frequently the employee will volunteer, and how the services differ from the employee’s paid duties. The organization should document that the employee volunteered without pressure, expects no compensation, may stop volunteering at any time, and will suffer no employment consequence for declining or discontinuing the service. That written acknowledgment is helpful, but it will not overcome facts showing that the employee was actually performing compensable work.

Managers also should monitor what happens in practice. A properly structured volunteer assignment can inadvertently drift into paid duties when volunteer responsibilities expand, staffing shortages arise, or supervisors begin directing the employee’s activities. Periodic review is particularly important for recurring arrangements.

Finally, nonprofit status does not itself eliminate FLSA coverage requirements. Coverage may arise from an organization’s commercial activities or an employee’s own involvement in interstate commerce, among other circumstances. The DOL provides additional guidance in Fact Sheet No. 14A. State and local wage laws may impose additional obligations.

Employee volunteerism can strengthen a nonprofit’s culture and mission. The safest rule is straightforward: approve unpaid service only when it is genuinely voluntary, clearly separate from the employee’s paid work, performed outside normal working hours, and free from any expectation of compensation. When the facts are unclear, paying for time that is “volunteered” is usually less expensive than defending the decision not to do so.

For more information or assistance with nonprofit workforce practices, including wage-and-hour compliance, and nonprofit board training and governance policies, please contact Timothy Hughes at (703) 526-5582 or thughes@beankinney.com, or Doug Taylor at (703) 526-5586 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult an attorney regarding any specific legal questions. Any views or opinions expressed herein are those of the authors and are not necessarily the views of the firm or any client of the firm.