DOL Offers Guidance on Employee-Volunteers at Nonprofits

On September 7, 2026, the U.S. Department of Labor, Wage and Hour Division (WHD) issued Opinion Letter FLSA2026‑12, addressing when employees of a nonprofit organization may volunteer for their employer and when those activities become compensable work.

The opinion arose from a nonprofit organization that breeds, raises, and trains service dogs. The organization wanted to know whether certain employees could volunteer outside normal working hours to provide in-home juvenile canine socialization services.

Although the Fair Labors Standards Act (FLSA) addresses volunteering for public employers, the WHD noted that it has long applied the same principles to employees of religious, charitable, and nonprofit organizations. 

Relying on the principles it applies to public-sector volunteers, the WHD concluded that an employee may volunteer for their nonprofit employer when the employee:

• Offers the services freely and without pressure or coercion, direct or implied;
• Has no expectation of compensation for the volunteer services; and
• Performs services that are not the same as, or similar to, the work the employee is employed to perform.

As with public-sector employees, the WHD takes the position that a nonprofit employee cannot serve as both a paid employee and an unpaid volunteer while performing the same or similar services for the same employer. Where an employee volunteers to perform the same type of work the employee is hired to perform, the WHD views that volunteer work as an indivisible part of the employment relationship and, therefore, it may constitute hours worked under the FLSA. Nor can an employee agree to waive their rights to compensation under the guise of volunteering.

“Same Type of Services” Analysis

That raises a practical question for employers: How do you determine whether a volunteer role is the same as, or sufficiently similar to, an employee's regular job duties? The opinion letter explains that employers must look beyond job titles and focus on an employee’s actual duties. Services are considered the same type when they are “similar or identical,” and the determination requires a case-by-case assessment of all relevant facts and circumstances. The key question is whether the proposed volunteer activities are closely related to the duties the employee is employed to perform. The WHD suggests that O*NET occupational classifications may provide a useful reference point when comparing an employee's paid and volunteer roles.

Applying its fact-specific analysis to the positions presented in the opinion letter, that meant different outcomes for veterinarians, directors, and trainers:

• Veterinarians. The WHD assumed that the veterinarians’ regular duties involved medical care, such as diagnosing and treating animals, and did not involve providing routine care, socialization, or training of juvenile canines. Based on that assumption, the WHD concluded that the veterinarians could volunteer as juvenile canine caretakers because those activities were sufficiently different from their regular job duties.
• Directors. The opinion similarly assumed that directors primarily supervised employees and did not directly care for, train, or socialize the dogs. As a result, the WHD concluded that directors also could volunteer as juvenile canine caretakers because the volunteer activities were sufficiently distinct from their regular responsibilities.
• Trainers. The answer was different for trainers. The WHD noted that juvenile canine socialization included training activities. Because the nonprofit’s trainers were employed to train canines and may also provide care and socialization, the WHD concluded that their volunteer responsibilities would likely be the same as, or sufficiently similar to, the work they already perform as employees. Accordingly, those employees could not perform the activities as unpaid volunteers.

Importantly, the WHD emphasized that its conclusions were based on assumptions regarding the employees’ actual job duties and that a different factual record could produce a different result.

Exempt Status Does Not Change the Volunteer Analysis

The WHD stated that whether an employee may volunteer “does not depend on his or her exempt status.” Both exempt and nonexempt employees may volunteer if the requirements for volunteer status are satisfied. In other words, an employer cannot rely on an employee’s exempt classification to bypass the same-or-similar-services analysis discussed above. If an employee performs services that are the same as, or similar to, the work they are employed to perform, the WHD considers those activities part of the employment relationship rather than true volunteer service. In that circumstance, the time may constitute hours worked under the FLSA if it otherwise qualifies as compensable time.

For nonexempt employees, that generally means the employer must compensate the employee for all hours worked and include those hours in any overtime calculation.

For exempt employees, the pertinent question is whether the additional juvenile canine socialization work that does not constitute volunteer work means that the employee no longer satisfies the duties test for the applicable exemption. Specifically, the employee’s primary duty must remain the performance of exempt work.

The opinion closes with a reminder that nonprofit employers should exercise caution when using employee volunteers. Misclassifying employees as volunteers can expose organizations to liability for back wages, overtime, liquidated damages, attorneys’ fees, and other remedies under the FLSA and state law.