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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41220
Experience:  I provide employment and discrimination law advice in my own practice.
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My employer, a university, has policy that no person can become

Customer Question

My employer, a university, has policy that no person can become an unpaid volunteer to work in a laboratory doing work that is normally done by someone in a paid position unless they have full employment elsewhere. This is said to be based on federal Fair Labor Standards laws. I was recently contacted by a 40-year old woman, PhD educated, who wishes to do research on a project in my lab as a volunteer. She has been disabled since 2010 and is receiving Social Security Disability payments, which limits the amount she may earn to a relatively low level in order to maintain her payments. Recently her condition has improved to where she would like to get back into research and publish so that she may someday resume her career in a normal paid position. The university says it cannot give her an appointment as a volunteer because she is already employed elsewhere, despite the fact that they have a policy to support disabled workers. Is this legally correct? It seems a Catch 22 if someone who could not work because they were medically disabled is not allowed to begin working again as a volunteer because they are not already employed. Is there some exception to the Fair labor Standards laws for this situation?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your question. Please permit me to assist you with your concerns.

I apologize but I am a bit unclear. Where does she work now if she is disabled, or is the college pointing to her disablity as her past employment? Please advise.
Customer: replied 3 years ago.
Currently she is not formally employed. She does tutor medical students privately. She has not had a regular job since an operation, after which she was told she should not work. Her symptoms have subsided to the point where she wants to try getting back into lab work. The university will not provide an unpaid position because they require that such a courtesy appointment be made to someone who currently is employed elsewhere. they do not allow anyone to work as a volunteer doing work that is normally done by a person in a paid position, which they state is following the law.
Customer: replied 3 years ago.
She is currently unemployed. the university will not appoint anyone to an unpaid courtesy position to do work that is normally done by a person that is paid unless that person is currently employed elsewhere.
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up, Clark.

What you are describing is not against the law. Laws generally do not permit individuals to be unfairly treated due to factors such as age, race, gender, religion, national origin, creed, or disability if any, as well as some states (and private entities) also do not permit discrimination based on gender identity, sexuality, or past criminal record. Here, none of that is in play. The school is refusing to grant her an unpaid position because it violates their policy, not because she is disabled. The A.D.A. (Americans With Disabilities Act) is sometimes poorly understood--all it requires from employers are reasonable accommodations and a same fair shot at employment that anyone else would obtain. Since under this policy anyone else who isn't employed elsewhere will likewise be turned away, there is no state or federal law violation.

Hope that helps and please let me know what I can clarify further.

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