Arizona Practical Questions Archive
Federal and state wage and hour laws require employers to compensate employees for their work. Sounds pretty basic, right? This can get confusing, however, when hourly employees “volunteer” their time. For example, what if the association maintenance man “volunteers” to stay late to finish repairs? What if the association administrative assistant “volunteers” to attend an association holiday event, perhaps to take tickets or pass out food? Are these hourly employees really volunteering their time or are they working?
The Supreme Court says a “volunteer” is someone who:
• Without promise or expectation of compensation,
• But solely for his personal purpose or pleasure,
• Works in the activities carried on by another person,
• For their own pleasure or profit.
Applying the Supreme Court’s definition, it is doubtful that the maintenance man is working late solely for his “personal purpose or pleasure.” In addition, courts have held that when an employee “volunteers” to do the same or similar type of work he normally performs during the workday, the employee is not really a volunteer and must be compensated. In our example, the association should compensate the maintenance man for staying late to make repairs.
The example of the administrative assistant who volunteers to attend a holiday event is trickier. In considering whether that employee should be compensated, the association should consider whether the employee is free to come and go as she pleases, or whether she has committed to attend the event for a specific time period. The association should also consider whether the employee may eat, drink and socialize with friends, or whether she must stay at a particular place or perform a particular task until she can be relieved or until the event ends.
The freer the employee is to come and go and to enjoy the event on her own terms, the more likely she is present for her own personal pleasure and the association need not compensate her. The more restrictions on her time and her ability to enjoy herself as she chooses, the more likely she is not a volunteer and the association should compensate her.
As you can see, there may not be a “black or white” answer when it comes to whether an hourly employee is a volunteer under federal and state wage and hour laws. Wage and hour laws are also highly complex, and the law assumes the employer to know them -- even when the “employer” is comprised of volunteers. If you have questions regarding whether an association hourly employee is a volunteer under certain circumstances, or regarding wage and hour laws generally, please contact Nicole Miller at 480-922-9292.
The information contained in this Homeowners Association Tip is for informational purposes only and is not specific legal advice or a substitute for specific legal counsel. Readers should not act upon this information without seeking professional counsel.
© Ekmark & Ekmark, L.L.C. 2011 – reprinted at HOA Pulse with permission
