Sit. Stay. Get Paid? DOL Addresses Whether Nonprofit Employees Can Volunteer to Raise Service Dog Puppies

Most wage-and-hour opinion letters are not particularly adorable. This one is.

In a recent opinion letter, the U.S. Department of Labor (DOL) addressed whether employees of a nonprofit organization that breeds and trains service dogs may volunteer during their off-hours to raise future service dogs in their homes. The answer, like many questions under the Fair Labor Standards Act (FLSA), depends on the employee's job duties.

Although the opinion arose in the context of service dog puppies, the guidance provides a useful reminder for nonprofits of all types. Employees can volunteer for their nonprofit employer only when the services are offered freely, without direct or implied coercion, without an expectation of compensation, and are sufficiently different from the work they are employed to perform.

When Good Intentions Aren't Enough

The opinion letter involved a nonprofit organization that breeds, raises and trains service dogs for individuals with visual impairments and veterans with post-traumatic stress disorder.

The organization utilizes nonemployee volunteers to provide basic care, early training and socialization for the puppies in their homes before the puppies advance to specialized on-site training by the organization’s dog trainers. Some employees, including veterinarians, dog trainers and trainer directors, also volunteered to take puppies home and assist with “puppy raising” outside of their working hours. Who wouldn’t?

The nonprofit asked the DOL whether those employees could do so without compensation.

In its opinion letter, the DOL traded the much cuter term "puppy raising" for "juvenile canine socialization." The latter is undoubtedly more precise, but considerably less fun.

The DOL's answer began with a long-standing FLSA principle: nonprofit employees cannot volunteer for their employer to perform the same or similar type of work they are already employed to perform. If they do, those activities become part of the employment relationship and may constitute compensable hours worked.

Volunteer Classification Depends on the Employees’ Regular Job Duties

The DOL emphasized that the analysis is highly dependent on whether the volunteer activities are sufficiently different from the employee's regular job duties.  The agency illustrated that principle with several prior examples. A school bus driver may volunteer as an assistant basketball coach, and a hospital office employee may volunteer to sit with a sick child or elderly patient, because those activities are meaningfully different from the employees' regular jobs. By contrast, a school bus driver cannot volunteer to drive a basketball team to away games, because transporting students remains the same service, regardless of the destination or passengers.

Applying that framework, the DOL concluded that the veterinarians and trainer directors generally could volunteer to raise puppies, because their regular job duties, as described by the organization, were sufficiently different from the routine care, socialization and early training associated with at-home puppy raising.

Service dog trainers presented a different issue. Because their regular responsibilities already involve training, socializing and caring for dogs, the DOL reasoned that at-home puppy raising would likely constitute the same or a similar type of work. As a result, those activities would not qualify as volunteer services and should be counted as hours worked.

Additional Compensation May Not Always Be Required

The conclusion regarding the dog trainers volunteer puppy raising was not the end of the discussion.

According to the DOL, even where an employee's activities are too similar to qualify as volunteer services, additional compensation may not be required if the employee remains properly classified as exempt. In that circumstance, the employee's salary can serve as compensation for the additional work, provided the employee continues to satisfy the applicable duties and salary tests.

Key Takeaways for Nonprofits

While the opinion letter focuses on future service dogs, its practical implications extend well beyond puppy raising.

Nonprofit organizations frequently rely on employees who are passionate about the organization's mission and eager to contribute outside their regular roles. Before treating those activities as volunteer services, employers should carefully evaluate whether:

• • The employee is participating freely and without actual or implied pressure
  • The employee has no expectation of compensation
  • The volunteer activities differ sufficiently from the employee's regular job duties

The DOL makes clear that an employee’s willingness to volunteer cannot override what is otherwise compensable work time. When those lines begin to blur, activities intended as volunteer service can become compensable work under the FLSA.

The lesson for nonprofits is straightforward: even the most adorable volunteer opportunities can create complicated wage-and-hour issues.

Before assuming an employee can volunteer after hours, make sure the activity passes the FLSA sniff test.

Contact Camille Broussard or any member of the Phelps labor and employment team with questions.