OK. You asked for it. Here is my memo on the subject. If you are willing to do so I would appreciate it if you would read it and give me suggestions for changes:
MEMORANDUM CONCERNING STIPENDED VOLUNTEERS
A. The Sausalito Village Concierge Service
We currently have four different volunteers who each carry a cell phone around on a different eight hour day (one of the volunteers does this for two days each week and the others each do it for a single day each week) and take calls from members who want volunteer help (usually transportation to a medical appointment, but also any number of other types of services). The volunteer who picks up the call enters the call into the system, which generates automatic emails to other service volunteers who have indicated an availability to perform the service. If the volunteer assigned to pick up calls on a given day is temporarily unable to pick up the call -- for example if the volunteer is driving, or at a meeting, or otherwise temporarily unavailable, the call goes into voice mail. The volunteer checks the voice mail periodically and makes sure that all calls are returned by the end of the day.
We would like to change the way this work is done, so that it is performed by a single volunteer for five 8-hour days, rather than as is currently the case by 4 different volunteers. We would also like to pay the volunteer a nominal stipend -- $500 a month.
Rules Goverrning Stipended Employees
The two rules governing stipended volunteers that seem to be relevant to this are as follows:
1. A volunteer may be paid a nominal fee to perform volunteer services. No specific amounts can be provided since what is ‘nominal’ depends on the economic realities of the situation. Thus, no guidelines on specific amounts applicable to all (or even most) possible situations can be provided. There is, however, a presumption that the fee is nominal as long as the fee does not exceed 20 percent of what an organization would otherwise pay to hire a full time employee for the same services.
2. The fact that payment is tied to the volunteer's “sacrifice,” rather than to the volunteer's productivity, seems to weigh in favor of denominating a payment as a stipend rather than as compensation.
I am not up to date on what people are being paid these days, but it seems quite unlikely that we could hire a full time employee, and pay that employee benefits, for $30,000 (12 X $500) a year. Thus, $6000 seems to come in under the 20% rule.
Likewise, what we are paying for is the volunteer's “sacrifice,” in terms of being on call for 40 hours a week, rather than for the volunteer's productivity, which cannot be predicted, given the uncertainty that calls will come in in any particular quantity.
Does the fact that a person holding the position in question would be carrying a cell phone around 40 hours a week, standing alone, convert that person into an employee?
I know that you are concerned that this should be viewed as employment, rather than a volunteer position, since the person in question would be carrying a cell phone around 40 hours a week. The obvious reason for the close scrutiny given to stipended volunteer situations is to prevent an employer from avoiding the requirements of the wages and hours laws by characterizing the individual as a stipended volunteer rather than as an employee. As a matter of logic, therefore, the fact that a person is carrying a cell phone around for 40 hours a week makes the person an employee only if carrying the cell phone around is compensable under wages and hours laws. As I read the law, employees are not entitled to compensation for time spent doing something like carrying around a cell phone.
The federal regulation that governs "on call time" (29 USC Section 785.17), which I think is what we are dealing with, provides as follows:
On-call time. An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘‘on call’’. An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.
An official DOL fact sheet (http://www.dol.gov/whd/regs/compliance/whdfs22.htm) reads as follows:
Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait."
On-Call Time: An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated. [emphasis added]
While neither the regulation nor the fact sheet specifically deals with cell phones, probably because they have likely not been amended since the carrying around of cell phones became ubiquitous, I have found at least one interpretation of the DOL regulation that seems to indicate that requiring someone to be available by cell phone does not mean that the person is "working" while on call, since that person can effectively use time for her or his own personal use while on call:
Non-restricted conditions enable the employee to use time effectively for their own personal use while on-call. For example, a nurse may be required to carry a cell phone and return to the employer’s premises within thirty minutes after being called, but the nurse is free to sleep, visit with friends, or go shopping. This is considered non-restricted conditions. In most cases, non-restricted conditions is time an employee can use effectively for their own purposes and therefore is not considered hours worked.(http://www.employmentlawhandbook.com/flsa/fair-labor-standards-act-when-on-call-time-is-recognized-as-hours-worked/)
In short, my conclusion is that since being on call in the fashion that our concierge service volunteers are on call is not legally compensable as wages, the fact that our concierge volunteers are on call does not convert them into employees.
1.The job description for the person we would like to recruit as a volunteer satisfies the rules for stipended volunteers, in that (a) it pays less than 20% of what an individual would be paid full time to perform the parts of the job that would be compensable under DOL regulations -- i.e. time spent handling the actual telephone calls, and (b) the stipend is paid in recognition of the fact that the individual is on call, rather than for the individual’s productivity.
2. The fact that the individual carries the cell phone around for 40 hours a week does not convert the person into an employee because being on call, under these circumstances, is not compensable under Federal law.
THANKS FOR YOUR HELP. BETSY