International Center University of Florida

There are some basic guidelines that international students can use to determine whether or not the proposed volunteer activity might be considered unauthorized employment. When considering volunteering, ask these questions first:

1. Are the services performed for civic, charitable, or humanitarian purposes?
2. Are the services entirely voluntary, with no direct or indirect pressure by the employer, with no promise of advancement and no penalty for not volunteering?
3. Does the proposed service impair the employment opportunities of others by performing work that would otherwise be performed by regular, paid employees? Are the services provided the same as services provided by someone who is paid?
4. Is there any expectation of compensation either now or in the future for these services?

The international student should be able to answer “yes” to questions 1 and 2, and “no” to questions 3 and 4. If not, it is likely that the proposed volunteer activity is more likely unpaid employment, and could subject both the international student and the employer to heavy penalties.

Keep in mind that the Department of Labor is concerned both with the protection of jobs for United States citizens, and with the prevention of exploitation of workers. It is illegal for an employer to pressure anyone to work for free, or to engage in activities for which it is usual to be paid. While both the person and the employer might be happy with the arrangement (for example, working unpaid in a company in order to gain job experience), this is considered an unfair arrangement because that work is usually performed by a paid person. For the company to not pay the person doing the work is considered exploitation by DOL.

Remember the questions above and these basic guidelines:

1. Students should not engage in volunteer work if that work is usually performed by someone who is paid.
2. Students should not engage in volunteer work if there is any expectation of current or future compensation—including not only wages, but a promise of a future job, gifts, or other benefits.

This is a tricky question to answer, and goes beyond the simple measure of whether or not the person doing the work is getting paid. The Fair Labor Standards Act defines an employee as:

“(1) Except as provided in paragraphs (2),(3), and (4), the term “employee” means any individual employed by an employer….

(2) In the case of an individual employed by a public agency, such term means –

(A)   any individual employed by the Government of the United States – (i) as a civilian in the military departments (as defined in section 102 of title 5, United States Code), (ii) in any executive agency (as defined in section 105 of such title), (iii) in any unit of the legislative or judicial branch of the Government which has positions in the competitive service, (iv) in a non-appropriated fund instrumentality under the jurisdiction of the Armed Forces, or (v) in the Library of Congress;

(B)   any individual employed by the United States Postal Service or the Postal Rate Commission; and

(C)   any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual – (i) who is not subject to the civil service laws of the State, political subdivision or agency which employs him; and (ii) who – (I) holds a public elective office of that State, political subdivision, or agency, (II) is selected by the holder of such an office to be a member of his personal staff, (III) is appointed by such an officeholder to serve on a policy making level, (IV) is an immediate advisor to such an officeholder with respect to the constitutional or legal powers of his office, or (V) is an employee in the legislative brand or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.

(3) For purposes of subsection (u), such term does not include any individual employed by an employer engaged in agriculture if such individual is the parent, spouse, child, or other member of the employer’s immediate family.

(4) (A) The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate government agency, if – (i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and (ii) such services are not the same type of service which the individual is employed to perform for such public agency.

(B) An employee of a public agency which is a State, political subdivision of a State, or an interstate governmental agency may volunteer to perform services for any other State, political subdivision, or interstate governmental agency, including a State, political subdivision or agency with which the employing State, political subdivision, or agency has a mutual aid agreement.”

(Section 3 (e), Fair Labor Standards Act)

A volunteer is defined thusly:

a) An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours. Individuals performing hours of service for such a public agency will be considered volunteers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4)(A) and (B) of the FLSA and the guidelines in this subpart.

(b) Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to “volunteer” their services.

(c) Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer.

(d) An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.

(29 C.F.R. 553.101)

While we cannot provide here every possible example of permissible and non-permissible work, here are some general examples of volunteering.

Permissible:

“Candy striper” in the hospital, literacy tutor, helper in a soup kitchen, builder for Habitat for Humanity, crisis line counselor for domestic violence or rape crisis phone hotline.
Why?
These positions are “pure” volunteer activities; they are performed as acts of charity to benefit the community. They do not displace an American worker, and they are not usually performed by someone who is paid for the service.

A person skilled in computer programming volunteers his/her services to a nonprofit/charitable organization such as a substance abuse counseling center to help them design a computer based intake system to log their calls.
Why?
While the "work" of computer programming would normally be a paid activity, note that in this circumstance it is performed for a nonprofit/charitable organization which traditionally depends on "gifts in kind" (items, resources, or services donated) to conduct its business. The programming is a gift of time and talent to an organization that depends on such gifts, with no expectation of payment or a future job.

Not permissible:

The director of a local non-profit, such as a literacy organization, soup kitchen, or domestic violence shelter, if that position is usually paid.
Why?
Even if the position is for a non-profit organization that engages in charitable work, if the position is usually a paid one, volunteering as an international student is not permissible. To volunteer in a position that is usually paid would be considered to be unauthorized employment.

Unpaid work in a company to gain on-site job experience, if the activities/responsibilities would usually be paid.
Why?
Again, if the activities/responsibilities would normally be performed by a paid worker, this could be considered a violation of the Fair Labor Standards Act and immigration law. For example, “volunteering” as a lab technician in a company in order to gain work experience in that field if a paid worker does the same thing. The only time that this would be acceptable is in a true “training program,” in which the person is closely supervised and the employer is getting no measurable “work” from the activities.