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what additional details do you need? I realize that I probably

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what additional details do you need? I realize that I probably failed to finish my sentence. Basically we provide seniors with the support and services they may require to remain in their own homes for as long as possible.

 

I am leaving the house. I will check back on this website on my return. By way of further clarification, the organization for which this stipended volunteer would be working has more than 50 vetted volunteers who provide direct services to the organization's members. The stipended volunteer acts in the position of a "concierge," taking requests for volunteer services and contacting volunteers who have agreed to provide the type of service being requested. Thanks Betsy

Submitted: 11 months ago.
Category: Tax
Expert:  Lev replied 11 months ago.

Lev :

Hi and welcome to our site!
I do not see your original question...
Can you post the question again or provide a link to that page?

Customer:

I cannot provide a link, but I can post the question, which is as follows:

Customer:

We are a nonprofit organization dedicated to providing older people who wish to remain in their homes for as long as possible with the support and services they require to do so. We have more than 50 vetted volunteers who provide direct services to these people. In addition, we have volunteers who answer a dedicated phone line to respond to requests for services. At the moment we have one volunteer who responds to the phone during business hours for each day of the week. We have a phone service that allows the volunteer on duty for that day to forward the phone to the volunteer's land line or cell phone, and the volunteer picks up the calls as they come in, and contacts service volunteers who have offered to provide the type of service being requested to see if they are available to respond to the request. On some days there are no calls, and on others there may be as many as 5 or 6. We have decided that it would be more efficient to have a single person take these calls Monday-Friday, 9-5, and make referrals as appropriate. That volunteer would arrange with the voicemail service to have the phone forwarded to his/her landline or cell phone each day and would handle calls as they come in. We are proposing to pay a stipend of $500 per month to whomever takes this job, and would like to know whether this is legal under labor and tax laws. If it is not, would it become legal if, rather than being required to carry a cell phone, the individual taking the job were required to call in to the voicemail periodically and pick up requests? Thank you for any help you can provide on this. Betsy

Customer:

We are a nonprofit organization dedicated to providing older people who wish to remain in their homes for as long as possible with the support and services they require to do so. We have more than 50 vetted volunteers who provide direct services to these people. In addition, we have volunteers who answer a dedicated phone line to respond to requests for services. At the moment we have five different volunteers, each of whom responds to the phone during business hours for each day of the week. We have a phone service that allows the volunteer on duty for that day to forward the phone to the volunteer's land line or cell phone, and the volunteer picks up the calls as they come in, and contacts service volunteers who have offered to provide the type of service being requested to see if they are available to respond to the request. On some days there are no calls, and on others there may be as many as 5 or 6. We have decided that it would be more efficient to have a single person take these calls Monday-Friday, 9-5, and make referrals as appropriate. That volunteer would arrange with the voicemail service to have the phone forwarded to his/her landline or cell phone each day and would handle calls as they come in. We are proposing to pay a stipend of $500 per month to whomever takes this job, and would like to know whether this is legal under labor and tax laws. If it is not, would it become legal if, rather than being required to carry a cell phone, the individual taking the job were required to call in to the voicemail periodically and pick up requests? Thank you for any help you can provide on this. Betsy

Lev :

Let me some time to review.

Lev :

1.
Payments to volunteers for services is absolutely legal. It is up to your organization to call such payments as "stipend" - still that doesn't changed the fact that payments are compensation for services.
The income from stipends is reportable. Is the stipend or fee paid to an employee or an independent contractor reportable? The answer to this question determines the way that the stipend is reported.
2.


An employer must generally withhold income taxes, withhold and pay social security and Medicare taxes, and pay unemployment tax (if applicable) on wages paid to an employee. An employer does not generally have to withhold or pay any taxes on payments to independent contractors. Independent contractors are self-employed individuals.

Lev :

3.
A stipend is defined as a fixed sum of money paid periodically for services or to defray expenses. The fact that remuneration is termed a "fee" or "stipend" rather than salary or wages is immaterial. Wages are generally subject to employment taxes and should be reported on Form W-2, Wage and Tax Statement.
So if the person is determined as an employee - the stipend is reported on W2 form.
If the person is an independent contractor - compensation is reported on form 1099MISC. That form is required if the total compensation for the year is above $600.

Lev :

Please let me know if any clarification needed.

Customer:

Your answer deals with the tax issues. However, it was the labor issues were of concern to me and it is the labor issues that remain unanswered. The question is whether someone can receive a stipend, rather than be considered an employee, when the person remains "on call," and is asked to be available to receive telephone calls via a cell phone for a period of 40 hours a week.

Lev :

Yes - the proper classification is very important - but there is no strict determination.
A general rule is that anyone who performs services for you is your employee if you can control what will be done and how it will be done. This distinction is important because an employee and self-employed are taxed differently. The laws - the employee vs. independent contractor issues - are extremely complex and you should obtain the help of a local tax attorney.
In determining whether the person providing service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence must be considered.Facts that provide evidence of the degree of control and independence fall into three categories:
--- Behavioral: Who controls or has the right to control what the worker does and how the worker does his/her job?
--- Financial: Are the business aspects of the worker's job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
--- Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

Lev :

If, after reviewing all circumstances, it is still unclear whether you are an employee or an independent contractor, Form SS8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding - http://www.irs.gov/pub/irs-pdf/fss8.pdf- can be filed with the IRS.
The form may be filed by either the business or the worker.The IRS will review the facts and circumstances and will officially determine the worker's status.
Be aware that it can take at least six months to get a determination.

Lev :

Similar determination may be done by the Department of Labor in your state.
There is no set definition of the term "independent contractor" and as such, one must look to the interpretations of the courts and enforcement agencies to decide if in a particular situation a worker is an employee or independent contractor. the actual determination of whether a worker is an employee or independent contractor depends upon a number of factors, all of which must be considered, and none of which is controlling by itself.

Lev :

Additional factors that may be considered depending on the issue involved are:


1. Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
2. Whether or not the work is a part of the regular business of the principal or alleged employer;
3. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
4. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
5. Whether the service rendered requires a special skill;
6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
7. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
8. The length of time for which the services are to be performed;
9. The degree of permanence of the working relationship;
10. The method of payment, whether by time or by the job; and
11. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.

Lev :

Sorry if you expected a definite answer. But the determination is very complicated.

Customer:

I am not concerned with the issue of whether the person is an employee or an independent contractor. I understand that issue. What I am concerned about is whether the person can be treated as a volunteer who receives a stipend. This involves a completely different set of issues. Thank you. Betsy

Lev :

You may consider the person as a volunteer who receives a stipend. That is not an issue.
However that doesn't changed the fact that payments are compensation for services. The fact that remuneration is termed a "stipend" rather than wages is immaterial. The income from stipends is reportable.
If you treat a person as a volunteer who receives a stipend - that doesn't change the fact - that person provides services to your organization and receives a compensation of such services in a form of stipend.

Customer:

I am aware that it is reportable. The question I have been trying to get an answer to is whether the person can be treated as a stipended volunteer rather than as an employee. This is a labor law question, not a tax question. It may be that I am asking the wrong person, but my understanding was that Just answer. provides answers about labor law questions, as well as tax questions. Thank you for clarifying this for me.

Customer:

I hope you got my answer. I am not as concerned about the tax issues as I am about the labor issues. Basically, I am wondering whether the fact that we are asking someone to be available to answer calls, 40 hours a week, either on a cell phone or on a land line at home, means that this person does not qualify as a stipended volunteer and must instead by treated as an employee. As I understand it, the two criteria that are relevant in this determination are whether the person is being compensated for being available, rather than for services rendered, and whether the compensation a person is receiving is less than 20% of what a full time employee would receive. Although people carry a phone around full time, they are not "working" full time. They are simply "available" to work on an as needed basis during a 40 hour period. Thus, we are proposing to pay people for their availability, not for their productivity -- a type of payment which in my
mind fits squarely within the concept of a "stipended volunteer." We are proposing to pay the person $500 a month, and I am relatively certain that we could not pay salary and benefits for a full-time emplyoyee for $30,000 for this work. Thus, as I see it, we fit within the 20% rule.

Thank you. Betsy

Lev :

You call a person as a volunteer who receives a stipend - however because the person provides services to your organization and receives a compensation of such services - that person is either an employee or independent contractor. The fact of receiving compensation is critical in this situation and may not be avoided.

Expert:  Lev replied 11 months ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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Expert:  Lev replied 11 months ago.
Betsy,
As I mentioned above - you call a person as a volunteer who receives a stipend - however because the person provides services to your organization and receives a compensation of such services - that person is either an employee or independent contractor. The fact of receiving compensation is critical in this situation and may not be avoided.
Volunteers are individuals who provide services to nonprofits without pay - "without promise or expectation of compensation".
The fact of receiving compensation might change the classification - and you might be surprised then, to find that volunteers might not be considered a volunteer by government agency, insurance company or any related party.

There is a two-part test for volunteers.
1.The putative employer must control the work done under ordinary tests of agency. That is, if the worker is performing some task under the auspices of the organization, then he or she will be determined to be your agent under the principle of respondeat superior.
2. The putative employee must be “hired.” This part looks to whether or not some benefit is offered in exchange for the activity performed.
Here is a court case example - http://supreme.justia.com/cases/federal/us/471/290/

The court held the nonprofit foundation to be an employer of “associates” who they had classified as volunteers. The Alamo Foundation was charged with violations of minimum wage, overtime, and record keeping provisions of the FLSA and employment taxes. The U.S. Supreme Court agreed, holding that the “associates” were employees because, even though they did not expect compensation in the form of ordinary wages, they did expect the foundation to provide them with food, shelter, clothing, transportation, and medical benefits.

To conclude - in general, a nonprofit organization must treat payments to volunteers the same as payments to employees, which means that income tax and FICA taxes must be withheld. Stipends and in-kind benefits should generally be treated like wages.

See here - http://www.nonprofitrisk.org/library/articles/employee_or_volunteer.shtml

Customer: replied 11 months ago.

I understand your answer, but I do not believe it is correct. There are many volunteers who receive stipends. The question is whether or not the stipend is nominal (there is a 20% rule, which raises the presumption that compensation is nominal) and whether the stipend is tied to the services received or to the individual's availability to perform the services. In this case the question is whether the stipend is tied to carrying the cell phone or to the actual taking of telephone calls. There are a number of Department of Labor opinions on the general subject but none of the ones I have found deals with this particular set of facts. That is why I contacted this organization, after running across the organization on line. Unfortunately I am not satisfied with the level of analysis I am receiving. That being the case I do not want to pay for this advice. Thank you. I do not mean to be rude, but I do not think that I am ahead of where I was at the time I initially contacted this organization.

Expert:  taxmanrog replied 11 months ago.

Welcome to Just Answers! Thank you for giving me the opportunity to assist you! I will do my best to help!

The prior expert was right in his explanation of what the requirements are for paying an employee. I believe that I see your issue. These are volunteers, and if you pay them too much, or if you deem them to work too much, they might be considered employees, which could change your organization's funding structure, or violate some of your organization's rules.

The 20% rule you refer to is from the US Dept of Labor's Fair Labor Standards Act (FLSA). Many of the cases that are similar to yours involve volunteer firemen. I spent 15 years as a volunteer for a fire protection district, and am familiar with this rule! Back when I first started in 1990, the volunteers were paid $6 per "point". A volunteer received one point for every incident they responded to, whether it was a 15 minute false alarm, or a 30 hour, knock-em-down fire. They were paid around Christmas (we referred to it as the "Christmas Bonus"). When I retired 15 years later, the pay was up to $10 per point.

The reason it was important to keep the pay that way was so the "volunteer" classification remained. As long as the firefighters were volunteers, they were covered by the State of Illinois insurance, for injury or death. And as volunteers, the Fire Protection District did not have to pay for this state insurance. However, if the volunteers were classified as employees, then the district had to get workman's compensation insurance for each volunteer, and pay other costs. So it was important to keep the "volunteer" classification.

The DOL's FSLA states in 29 U.S.C. § 203(e)(4)(A) that volunteer cannot be paid any compensation, but can be paid "expenses, reasonable benefits, or a nominal fee, or any combination thereof". Volunteers can be paid this "nominal fee" as long as the payment is for the relative “sacrifice” of the volunteer. Under 29 C.F.R. § 553.106(e) these "sacrifices" listed as factors to be considered include the distance traveled and time and effort expended by the volunteer; whether the volunteer has agreed to be available around-the-clock; and whether the volunteer provides services throughout the year, even if those services are provided periodically. These payments, or "stipends" cannot exceed 20% of the cost that would be required to hire a full-time paid employee who would perform the same services. And, cases under this section show that it is not based on annual salaries, but based on work performed. For example, one case states that if a volunteer works three shifts in a month at the station, the amount paid has to be less than 20% of the amount that a full-time firefighter would be paid FOR THOSE SAME THREE SHIFTS. That was where our Fire Protection District was safe. The average call was about 2-3 hours from dispatch until when the volunteers left the station to go home. Paying them even $10 per point amounted to under $3.50 per hour on average. The average full-time union firefighter (this is Chicago area) was paid over $25 per hour, so they were safe.

The question is whether the stipend you pay is "on call" pay or pay to be on call. This would determine the hours that would be counted, and whether they would be classed as an employee or volunteer.

The U.S. Supreme Court framed the issue of whether "on call" pay made them an employee or not many years ago. The test is whether the employee has been "engaged to wait" or is "waiting to be engaged." An employee who's required to stay so close to the workplace in time and distance that she has very little freedom to use the time as her own has been "engaged to wait," and the on-call time constitutes "hours worked" for purposes of the FLSA.

Conversely, if an employee has only minimal restrictions on the use of his time while on call and has a fair amount of time to respond to a call, then he's "waiting to be engaged." In that case, the on-call time isn't "hours worked" for compensation purposes unless and until he's called on to perform services.

This second classification is where you want to be. And I don't think that would be hard to reach, either. These days, everyone carries cell phones around. So as long as the volunteer has his phone and is able to answer it (even if he is in a car, he can pull over to answer and talk, or as one of your suggestions, have an answering service where the volunteer calls in to get messages) he is not being restricted in his everyday activities.

So, if you can keep the volunteers relatively unrestricted in their activities as they answer phones for you, and you pay them less than 20% of what an "on call employee" would receive, then you can keep them classified as volunteers. However, even as volunteers, remember that the pay that they DO receive has to be reported and withheld on, as the prior expert pointed out.

I hope this answers your questions! If you have any more, please let me know. If my answer has been helpful, please rate me highly! I would appreciate that!

Roger

Customer: replied 11 months ago.

Thank you. I am a non-practicing attorney with no expertise in this field, but my brief research on the subject had led me to the same conclusion you reached. I was therefore pleased to receive your thoughtful analysis of the issue (especially since your conclusion was the same as mine), and will, ultimately, rate you highly. However, I would like to keep this open briefly in case other facets of the problem arise. Specifically, our organization operates under the fiscal sponsorship of a 501(c)(3) organization that is in the business of acting as a fiscal sponsor for more than 100 small nonprofits. They are understandably cautious in terms of the activities they allow their fiscally sponsored projects (which is what we are) to engage in. I am expecting a call from the fiscal sponsor later today and may be getting back to you if, as a result of our discussion, I think a further question could be helpful.

Expert:  taxmanrog replied 11 months ago.
Feel free to ask away! I would be happy to answer! As I said, I understand your situation. As I stated in my reply, your status and/or funding keyed on probably the number of volunteer hours vs employee hours, or something similar. So I know this distinction is important. If anyone from your organization has questions on this same topic, I would be happy to clarify!

Thanks for the question!

Roger
Customer: replied 11 months ago.

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.



Conclusion



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




Expert:  taxmanrog replied 11 months ago.
Betsy, you have it down!! I read the complete memo. It is well written! And you have everything on point. There are two comments that I would make.

First, when you are talking about "engaged to wait" or "waiting to be engaged", I would probably add the Supreme Court ruling on this topic. It lends weight to your memo.

Second, when you talk about giving the $500 per month to the volunteers as payments for their sacrifice, you might also note that most cell phone contracts cost $100 or so per month, so in addition to being payments for their "sacrifices" the are also reimbursements for their costs.

Other than that, it looks good! By requiring the volunteer to carry a cell phone around is not imposing a burden on the volunteer. Carrying a cell phone is commonplace today.

Thank you for the great question! If you have any more, please let me know! If you have found my answer helpful, I would appreciate a high rating.

Have a great weekend!

Roger
taxmanrog, Certified Public Accountant (CPA)
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