Differentiating a volunteer from an employee
It is often assumed that the main difference between a “volunteer” and an “employee” is that the employee is paid for services and the volunteer works for free. In reality, distinguishing the two is a complicated matter. Both the Department of Labor and the Department of Homeland Security provide their own definition of an employee, and these definitions may have legal implications for the University and for the international volunteer. The Department of Labor’s concerns focus on protecting workers, both U.S. and foreign, from underpayment and abuse, and protecting U.S. jobs. State wage and hour laws are also designed to prevent the exploitation of workers.
The University of Washington does not utilize volunteers for the sake of “free labor.” Departments must not displace a paid employee with an individual willing to forgo compensation. If the tasks assigned to a volunteer constitute the same work as performed by a paid worker, the volunteer may not truly be a “volunteer” according to the Federal Fair Labor Standards Act. Similarly it is not appropriate to have a “volunteer” fill a position when there is an expectation of future pay, such as an individual performing the duties of an offered position while waiting for the employment visa to be approved.
Risks to the UW
There are risks to the UW for inappropriate use of “volunteers.” Employers who wrongly classify individuals as volunteers may be liable for:
- The payment of back wages
- Federal fines of $10,000 for violating wage and hour laws
- State fines of up to $10,000 for employing an individual without proper employment authorization
- Potential loss of federal research grants and contracts as a result of Executive Order #12989 and the inability to re-apply for federal grants/contracts for 1 – 2 years.
Guidance for the international volunteer
Unless precluded by their visa status, an international visitor may volunteer for activities normally performed by volunteers at the UW and in the community. The Department of Homeland Security determines what international visitors on visas in the U.S. can and cannot do, and prohibits employment in the U.S. except under specific conditions. The risk to an international visitor is that compensation of any type – not just monetary – transforms a volunteer arrangement into an employment situation. Individuals working without proper employment authorization violate the terms of their visa status, jeopardizing their ability to remain in the U.S. or visit the U.S. in the future.