In California, a volunteer is a person who freely offers to donate their services with the understanding that they will not be compensated with tangible or intangible payment for their work. A volunteer also tends not to perform services of a commercial nature. California statutes define the term volunteer somewhat differently in different situations. For example, the term volunteer when used as an adjective and combined with a profession, like “volunteer firefighter,” will result in different meanings.
When interpreting the California Labor Code, it is a good idea to view "volunteer" in context to understand its full meaning. California law allows a religious, charitable, mutual benefit or similar type of nonprofit organization to utilize volunteers. Typically for-profit corporations may not use volunteers to perform work.
Definition of Regular Employee
The California Labor Code defines an employee as a person in the service of an employer under any appointment, contract of hire or apprenticeship. The arrangements may be express or implied; oral or written. The individual hired may be lawfully or unlawfully employed.
The definition of employee includes immigrants, minors, elected and appointed paid public officers. The term “employee” includes officers and members of boards of directors of quasi-public or private corporations while rendering actual service for the corporations for pay.
Paid Employee Is Not a Volunteer
An employee cannot be a volunteer because an employee expects to be compensated for their time. Yet an employee can volunteer at the place where they are employed. This typically occurs when an employee of a public benefit corporation – a nonprofit that works for the good of the community – assists the entity that employs them for free.
An employee gets around performing the usual services of their job for free by volunteering in a capacity that is distinct from their position. The key is that the employee will not be engaged in the usual services of their job when they are volunteering.
Employees vs. Volunteers
Other differences between volunteers and employees include the fact that there are more rules and better protections for employees. Employees are eligible for benefits like overtime, lunch breaks, sick leave and vacation days. They are also covered by workers' compensation laws and insurance policies. Volunteers are not eligible for these benefits and generally are not covered for workers' comp.
Employees who are wrongfully terminated can recover damages and other remedies. Volunteers typically cannot recover such damages in a civil lawsuit. Employees may be asked to sign a confidentiality or nondisclosure agreement (NDA) to perform work. Volunteers typically are not asked to sign such agreements.
Other Types of Classifications
The federal Fair Labor Standards Act (FLSA) and the California Labor Code have classifications for other individuals who perform work beyond employees and volunteers. These categories include apprentices, independent contractors and interns.
According to California's labor laws, an apprentice is a person at least 16 years old who has entered into a specific written agreement called an apprentice agreement with an employer or program sponsor. An independent contractor is a person who renders services for a specified compensation for a particular result. An independent contractor may be under the control of a principal as to the result of the work, but not the means by which the result is achieved.
Unpaid Internship Programs
There are two basic types of interns: the first are unpaid interns or interns paid a lower rate than an employee would be paid for similar work. These interns must attend school while they are working. The second type of interns are trainees, who are typically in training for a specific type of position. Under the appropriate circumstances, interns and trainees may be exempt from state and federal overtime rules, including minimum wage requirements.
Volunteers Can Be Compensated
A government agency or a nonprofit organization can compensate volunteers, but it is not required to do so. These entities may provide a volunteer with reasonable meals, lodging, transportation and reimbursement for incidental expenses or nominal nonmonetary awards. The receipt of such gifts must be considered in the entire context of the situation to show that the benefits and stipends are not meant to be a substitute form of compensation for work performed.
FEHA Protections for Volunteers
The California Fair Employment and Housing Act (FEHA) makes it illegal for an employer to harass, discriminate or retaliate against an employee, volunteer, applicant, unpaid intern or independent contractor. An employer who engages in such activities may be liable for damages in a civil lawsuit filed by a person who fits any of the above-named categories. In addition, almost all minors under 18 are subject to California’s child labor law protections. California state laws make it illegal to discriminate in apprenticeship programs as well as against apprentices when they are on the job.
Cal/OSHA Protections for Volunteer Activities
Federal Occupational Safety and Health Administration (OSHA) rules usually do not cover volunteers unless the volunteers are paid. Yet Cal/OSHA rules are likely to cover volunteer work in certain circumstances. In some cases, the U.S. Environmental Protection Agency (EPA) may adopt federal OSHA standards and include unpaid volunteers.
This is true for instances that relate to OSHA’s hazardous waste operations and emergency response standards. A paid or unpaid volunteer with questions about the federal and Cal/OSHA rules for their position should reach out to Cal/OSHA.
Volunteer Service on Public Works Projects
A public works project is an undertaking by a government agency that benefits the public. Examples include a community garden or a playground. Individuals who engage in public service to complete these projects without compensation are considered volunteers. California Labor Code Section 1720.4 contains an exception to state public works laws that allows the public agency undertaking the project not to pay volunteers the prevailing wage.
Locating Information About Volunteers
An individual searching for information about the differences between volunteers and employees should look to the California Labor Code and the California Department of Industrial Relations (DIR), rather than to the state's department of labor (DOL), also known as the California Labor & Workforce Development Agency (LWDA).
A search of resources on LWDA’s website will turn up information about volunteers for various government operations, such as California state parks; the statutes and DIR’s guidance on how to treat employees, apprentices, interns and volunteers tend to be more informative than the basic information on LWDA’s site.
- California Labor Code: Section 1720.4, Volunteers on Public Works Projects
- California Government Code: Sections 12940-12953, Unlawful Practices, Generally
- California Labor Code: Sections 3350 - 3371.1, Employees
- California Department of Fair Employment and Housing: Employment
- California Department of Industrial Relations: Information on Minors and Employment
- California Department of Industrial Relations: Opinion Letter on Volunteers
- California Labor Code: Section 3073.9, Administration of Apprenticeship Programs
- California Labor Code: Section 3077, Apprenticeship Programs
- California Labor Code: Section 3353, Employees
- California Labor and Workforce Development Agency: Homepage
- U.S. Department of Labor: OSHA Does Not Cover Volunteers, But EPA Does in Hazardous Waste Operations
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.