Volunteering to work?

Health fairs, ‘fun runs’ present legal challenges to health care providers asking employees to volunteer time

Clarence Belnavis
Fisher and Phillips LLP

For hospitals and health care providers, events such as health fairs, run/walks and other activities are traditional links to their community. These outreach activities are mission-critical to some institutions, especially when they feature medical screenings or similar services. The events also build employee camaraderie and morale, so much so that workers readily volunteer their time to participate. Unfortunately, these scenarios can present serious legal questions regarding whether employees must be paid for the time they spend "volunteering."

How the wage/hour law views it

The relevant legal issues arise almost exclusively under the Fair Labor Standard Act (FLSA), the federal law that sets forth requirements regarding the payment of minimum wages and overtime. This law is complicated and particularly unforgiving. To begin with, employers must pay all workers, for all compensable time that it knows about or "should" know about, unless the employee is specifically exempt under the law. Employees generally cannot waive their rights under the FLSA, and an employer’s liability can reach back as far as three years.

The frequency of FLSA lawsuits, particularly class actions, is growing rapidly. The health care industry has already seen considerable activity in this area, where groups of employees have parlayed various claims into large judgments or settlements.

Defining ‘volunteer’

In the context of these special events, the critical question hospitals need to answer is whether the time a non-exempt employee spends "volunteering" is compensable. Keeping in mind that the employer bears the burden of proof in virtually all wage and hour investigations, the first hurdle is to establish that employee participants freely elected to donate their time. Communications and documentation are very important in this regard. A hospital must be prepared to deal with the inevitable allegation of an implicit expectation that employee participation was mandatory.

Even when an employee’s participation is completely voluntary, the DOL will still consider the time spent to be compensable if 1) the activity occurs within the employee’s normal working hours; or 2) the voluntary activities are the same or similar to the employee’s regular duties. According to the DOL, if the circumstances fulfill either of these criteria, the employer should treat the time as compensable.

The health care setting

These two requirements can be problematic indeed, especially in the case of a health fair or health screening. First, given the variable staffing patterns often necessary in health care, it may not be easy to establish an employee’s "normal" working hours. Second, it may be difficult to ensure that the volunteer’s activities were not similar to his regular duties when working. In other words, when they "volunteer," specialized employees will expect to use their unique skills and training. This issue might not pose as significant a problem when coordinating a 5k race or a telethon, but it could be extremely difficult in presenting a health fair.

Considering the costs involved and the special role of events such as health fairs in the industry, hospitals would be well served to review their relevant policies before their next event. It could reduce risk and save considerable time and money in the long run.

Clarence Belnavis is a Vancouver resident and partner in the Portland office of Fisher & Phillips LLP, exclusively representing the interests of management in labor and employment matters. He can be reached at cbelnavis@laborlawyers.com or 503-205-8045.

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