Recently, the U.S. Department of Labor Wage and Hour Division issued Opinion Letter FLSA2026-12, addressing when employees of a nonprofit organization may volunteer for the same organization without creating compensable work time under the Fair Labor Standards Act (FLSA).
The opinion arose from a nonprofit organization that breeds and trains service dogs and wanted to know whether certain exempt employees could volunteer outside working hours to provide in-home puppy socialization and care services.
Background
The nonprofit employed both exempt and nonexempt employees, including veterinarians, service-dog trainers, and directors. The organization also utilized volunteers who provided in-home care, socialization, and basic training for puppies before the dogs entered formal service-dog training programs.
Several employees expressed interest in volunteering as puppy caretakers during nonworking hours. The employer asked whether that volunteer activity could be treated as true volunteer service rather than compensable work under the FLSA.
General Rule for Employee Volunteers
The Wage and Hour Division reiterated its long-standing position that employees of nonprofit organizations may volunteer for their employer if:
- The services are provided freely and without coercion;
- There is no expectation of compensation; and
- The volunteer services are not the same as, or similar to, the services the employee is hired to perform.
The agency emphasized that an employee generally cannot serve as both a paid employee and an unpaid volunteer while performing the same type of work for the same employer. If the employee volunteers to perform the same or similar services, the activity becomes part of the employment relationship and may constitute compensable working time under the FLSA.
Same or Similar Services Remain the Key Test
According to the opinion letter, the central issue is whether the volunteer work is the “same or similar” to the work the employee performs as part of their job. The determination depends on all facts and circumstances, including the employee’s actual job duties and responsibilities.
The Wage and Hour Division explained that nonprofit employers should evaluate whether the volunteer activities are closely related to the employee’s assigned duties. If they are, the employee generally may not be treated as an unpaid volunteer for those activities.
Veterinarians and Directors Could Potentially Volunteer
Based on the facts presented, the Wage and Hour Division concluded that veterinarians and directors likely could volunteer as in-home puppy caretakers because their regular duties appeared sufficiently different from the routine care, socialization, and early training involved in raising puppies.
The opinion assumed that veterinarians primarily provided medical care and that directors primarily supervised employees rather than directly caring for or training dogs. Under those assumptions, the volunteer activities were not considered the same or similar work.
Trainers Likely Could Not Volunteer to Perform Puppy-Raising Activities
The Wage and Hour Division reached a different conclusion regarding service-dog trainers.
Because puppy socialization and care included training activities, the agency concluded that employees whose regular job duties involved training, caring for, or socializing dogs would likely be performing the same or similar services if they volunteered as puppy caretakers. In that circumstance, the volunteer activity would generally become part of the employment relationship.
The opinion specifically noted that the conclusion would apply regardless of whether the employee otherwise qualified as exempt.
Important Guidance for Exempt Employees
One of the most notable portions of the opinion letter addresses employees classified as exempt under the executive, administrative, or professional exemptions.
The Wage and Hour Division explained that if an exempt employee performs additional work that cannot properly be treated as volunteer activity because it is the same or similar to the employee’s regular duties, the employer generally is not required to pay additional compensation solely because the employee performs that extra work.
According to the agency, an otherwise exempt employee may continue to qualify for the exemption if:
- The employee continues to satisfy the applicable salary requirements; and
- The employee’s primary duty remains the performance of exempt work.
Thus, additional nonexempt duties do not automatically destroy exempt status. Instead, employers must evaluate whether the employee’s primary duty remains exempt based on all relevant facts and circumstances.
Risks for Nonprofit Employers
The Wage and Hour Division cautioned nonprofit organizations against improperly classifying employee activities as volunteer services. If volunteer work is actually part of the employment relationship, employers may face potential liability for:
- Back wages;
- Overtime compensation;
- Liquidated damages; and
- Attorneys’ fees.
The agency advised nonprofit employers to carefully evaluate employee volunteer programs to ensure compliance with the FLSA.
Employers Impacted
The opinion is particularly relevant to:
- Nonprofit organizations utilizing volunteers;
- Charitable organizations;
- Educational institutions;
- Religious organizations;
- Employers that permit employees to volunteer for the same organization; and
- Employers with exempt employees who perform duties outside their regular job responsibilities.
Employer Takeaway
Opinion Letter FLSA2026-12 reinforces that nonprofit employees may volunteer for their employer only when the volunteer services are freely provided, unpaid, and not the same as or similar to the services they are employed to perform. The opinion also confirms that exempt employees who perform additional duties that cannot properly be treated as volunteer work may continue to qualify for an FLSA exemption if their primary duty remains exempt and they continue to satisfy applicable salary requirements. Nonprofit employers should review volunteer programs carefully to avoid inadvertently creating compensable working time.