The legal ramifications of volunteer programs


(Sarah Hawk) #1

Does anyone know what the legal ramifications of running a volunteer team (e.g. a superuser program, or moderation team) without them technically being employees?

If you train people, set them tasks, and reward them, do they have to have a legal employment contract? Are there ways around that?

How do you handle this in your communities?

@Steve_Combs and @rebeccabraglio – any advice?


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(Shreyas) #2

I can give some inputs from the ‘other side’. Earlier this week, I took up the role of Volunteer Community Moderator at the Mozilla Leadership Network Discourse forum. Some Mozilla projects and roles are under NDA, so it requires the volunteers to sign that before being given access.

Looping in @caitmuenster who might be able to offer more details regarding this since she works closely with volunteers.


(Sarah Hawk) #3

I’ve done some digging and the main issue is around payments and benefits. The definition of a volunteer is grounded in the idea of service without contemplation of pay. There are some boundaries around how you incentivise people.

I have a couple of interviews scheduled with lawyers tomorrow and I’ll come back with more info after that.

I’m still very interested in hearing how others handle this.


(Caitlin Neiman) #5

This is a really interesting question. Most of my work experience has been at non-profit organizations where volunteer roles are clearly marked and defined as being without financial compensation, and this issue never came up :slight_smile:

If you’re trying to run a volunteer group at a for-profit company, you might want to check with an employment lawyer to make sure that your program is above-board. If you’re at a non-profit, though, I think you should be fine as long as you clearly communicate that these positions are voluntary and will not be financially compensated.

For what it’s worth, I have a group within my community who are responsible for moderating Firefox add-on submissions, and none of them are under contract. They have to apply to join the team, and if accepted, they receive training about specific tasks. We have a rewards program in place to give them prizes when they achieve certain milestones in their contributions. A few of our most committed moderators have commented that they’re motivated by our organization’s mission and that they enjoy the task of moderation, and that while they appreciated the rewards program, that wasn’t what kept them coming back to volunteer.

I can give you more info about how we’ve set up our program and how I’ve seen volunteer programs play out at other organizations if that would be helpful!


(Sarah Hawk) #7

Thanks Caitlin. Have you seen any programs where rewards or incentives are tied directly to a specific task, or to the amount of work done/time spent?


(Caitlin Neiman) #8

Sure!

I’m going to send over a few links to info about the moderator group in my community. Incentives/rewards are tied directly to moderation activity.

Overview: https://wiki.mozilla.org/AMO:Reviewers
Incentives/Rewards: https://wiki.mozilla.org/Add-ons/Reviewers/Points_and_Incentives


(Sarah Hawk) #9

Much appreciated.

This is interesting territory.

My understanding is that the key to defining ‘volunteer’ work is that there is no expectation of reward for work. Here you have very clearly defined expectations.


(Richard Millington) #10

I think the problem here isn’t so much if they are a volunteer or an employee, but whether they are a volunteer.

Private sector companies in the USA can’t legally accept volunteers according to the Department of Labor:

http://webapps.dol.gov/elaws/whd/flsa/docs/volunteers.asp

The guidelines feel pretty clear about this.

So anything that could be construed as any sort of official volunteer program (training, detailing specific tasks etc…) could be construed as volunteering. Which is a bit of a problem.


(Sarah Hawk) #11

So the key here is that they are already performing those services voluntarily. Providing you don’t set up a formal payment or reward program that is directly tied to the tasks performed, and you don’t have them performing tasks that paid employees would otherwise do, then they’re not “volunteers”, they’re community members who are more active than other community members.

I’ve spoken to a few lawyers who concede that it is a grey area, but provided your intention is clear, the expectations of the members are clear, and no one feels that they are being taken advantage of, then you’re not crossing lines.


(Richard Millington) #12

I think that’s the difference between volunteer and employee rather than a legal definition of a ‘volunteer’.

You can have community members that are more active than other members…and provide some level of recognition for that. But if you setup a distinct program with fixed tasks to do, provide training, or remove those that don’t perform…that’s almost certainly going to be classified as a volunteer.

Now when you mix that with the work that volunteers tend to do is very much the work that employees could very well be doing (answering questions, creating content etc…) I think there’s a problem here regardless of whether people they are being taken advantage of or not.


(Sarah Hawk) #13

I’m not wholly convinced.

I think we’re trying to solve a problem that doesn’t need to be solved (at least according to the lawyers that I’ve spoken to). That said, if people are concerned then it’s safer to err on the side of caution.


(Richard Millington) #14

Think it’s a very grey area and very much open to interpretation.

This is also worth a read: https://en.wikipedia.org/wiki/AOL_Community_Leader_Program#Department_of_Labor_investigation


(Rebecca Braglio) #15

Ugh yes, this is a huge can of worms.
I feel like the emphasis is more that they understand they are not an employee, rather than they understand they are a volunteer, if that makes sense?

Regardless of whether you are for-profit or non-profit, this would apply. It may also depend on whether there are any state laws that come into effect.

I think it also depends on how large the organization is and the breadth of volunteers – for one organization I was with, there were hundreds. And they received benefits such as travel reimbursements (to some amazing places for free conferences), meals, and so on. Some volunteers also worked as contractors. The lines are easily blurred.


(Jake McKee) #16

The issue I’ve run into with corporate lawyers (that tends to get branded as “co-employment”) is whether there is a perception of employment. Their concern is that you ask a non-employee to do something specific with a specific, tangible reward for that something, then you are setting up a situation where they appear, by all accounts to be an employee. Think about that for a sec: what’s an employee? It’s someone you task with specific tasks, then pay them for doing those tasks.

So the corporate lawyers tend to fear a single volunteer lawsuit, or even worse, a class action lawsuit from a group of volunteers that make the claim that they were asked to function as employees and therefore are entitled to backpay/benefits/protections.

There is existing case law, although I’m not sure how much it really applies. The biggies are AOL and About.com.

The way you work around this is to ensure that you’re not saying, directly or indirectly: “If you do X, I’ll give you Y”. Think about it as an award vs. reward.

Reward: “If you volunteer, I’ll give you a laptop”

Award: “Because you did such amazing things last year, you’ve won the Fan of the Year award which comes which comes with a prize package”

Am I making sense??


(Sarah Hawk) #17

Yes, thanks Jake.

I agree re it not really applying… in the case of AOL, the volunteers had to undergo an intensive 3-month training program, were required to file timecards for shifts, work at least four hours per week, and submit detailed reports outlining their work activity during each shift. If you’re controlling people to that degree it’s pretty hard to justify the term volunteer!

If, on the other hand, you train someone up about your products, ask them to answer questions in the community as much as they want to, and give them a badge and gifts to thank them for being engaged community members, that feels like a very different proposition.

One lawyer I spoke to also pointed out that unless you treat people in a way that makes them want to file a grievance, this wouldn’t be an issue in the first place.


(Jake McKee) #18

Yes, but remember… case law and more specifically, the lawyers that are paid to reduce risk to zero aren’t concerned about direct connection, they’re concerned about similarities that could be extended to another case. While I personally feel like both of those cases are a stretch for programs I’m working on, they’ve been brought up by in-house counsel more times than I can count.

The catch of all this is that the devil is in the details. You talk about training someone up… but does that constitute a significant action that could be considered “employement-like”? That’s not for you or I to decide… it’s up a judge/jury, if it comes to that.

Yes, but also very much no. If you’re a smaller company, maybe. If you are Google or GE or anyone else with huge pocketbooks, you have a nice, fat, money distributing target on you. And that’s a huge part of what in-house counsel is going to be concerned about. It may or may not happen, but if you can’t get a program through Legal, it doesn’t really matter anyway.

This isn’t me arguing for anything in particular (and I’ve spent a career arguing FOR taking the risk). But this is the reality of what we all face.


(Sarah Hawk) #19

All very fair points.


(Richard Millington) #20

thanks @jake_mckee actually have a blog post going live on this topic tomorrow which mirrors a lot of what you brought up above and some of the points from @HAWK from private discussions earlier in the week too.

The key thing here is understanding the objectives of any legal team. Reduce the risk. It’s come up with some of our clients in the past and will do again. It’s important to understand and listen to the legal side of things - rather that skirt around everything they want to do.

That’s probably the difference in perspective here. @HAWK is looking at this from what the perspective of how a judge might rule on it if it went to court and @jake_mckee from how in-house legal teams will act to reduce the risk to zero.

Interesting discussion.


(Sarah Hawk) #21

I’ve spoken to another lawyer on this, and have some further interesting points to note. (This lawyer was based in the UK. The previous ones were in NZ, Australia and the US.)

  • The law around this varies greatly from country to country so it’s difficult to say anything completely definitive.
  • It is risky to give the impression that the way things are done in the USA has wider applicability, because it is probably the English-speaking country which has least employee protection in the world.

Under UK law, in order to fall into a ‘volunteer’ category (and therefore avoid national minimum wage obligations) the traditional view has been that it is important:

  • That the individual is free to voluntarily work (or not) as they wish.
  • That there is no element of compulsion to their attending work, or the hours that they work.
  • That they have no form of contract.

Requiring people to undertake specific training is also a risk factor.

TL;DR So long as there is no contract, no obligation to perform work or work for specific hours, then they are true volunteers (under UK law).

She also notes that regardless of the specifics of the law, in practice the legal risk is going to boil down to whether people want to bring a claim.


(Jake McKee) #22

The point you make about “no obligation to perform work” is a crucial point… the question I would ask is “what does obligation look like?” That’s the point I was referring to earlier… if you say “a volunteer gets a free X for doing Y number of hours of volunteer work”, is that considered “obligation”?