FLSA2018-22 — Volunteer status of nonprofit members serving as global credentialing examiners

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210

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FLSA2018-22
August 28, 2018
Dear Name*:
This letter responds to your request for an opinion concerning the applicability of the Fair Labor
Standards Act (FLSA) to “member examination graders” (Graders) who “travel either
domestically or from abroad to the United States once a year for a one- to two-week period to
grade a global credentialing examination” for your client, a nonprofit organization. Specifically,
your client asks whether it may treat the Graders “as volunteers instead of... short-term
employees” if the Graders do not receive a fee for their services going forward. The opinion
below is based exclusively on the facts you have presented. You have represented that you do
not seek this opinion for any party that the Wage and Hour Division (WHD) is currently
investigating, or for use in any litigation that commenced prior to your request.
BACKGROUND
Your client is a nonprofit organization that administers professional examinations necessary to
obtain professional designations (credentials). Each year, your client selects approximately 650
credential-holders who are members of the organization to serve as Graders for one or two
weeks. Your letter states that Graders are motivated to serve due to the “professional
achievement of being selected for this role,” as well as the opportunities to “[promote] the
highest standards of ethics, education, and professional excellence,” to “[gain] the personal and
professional” benefits of being a Grader, to “give back to the profession,” and to “give back” to
your client. In the most recent survey that your client conducted, Graders most commonly cited
the last two reasons—giving back to the profession and giving back to your client—as their
motivations for serving as Graders. Your letter also states that the Graders “tend to be the most
successful and highly compensated individuals in their professions” and are often “highly
compensated executives of multi-national firms” who take “a week or more of their personal
vacation, or other leave time” to serve as Graders.
Your client pays for the Graders’ transportation, accommodations, and meals while they serve as
Graders. Your client has previously also provided Graders a flat fee for their services, but plans
to stop paying this fee and classify the Graders as volunteers going forward.
GENERAL LEGAL PRINCIPLES
The FLSA recognizes the generosity and public benefits of volunteering and allows people to
freely volunteer time to religious, charitable, civic, humanitarian, or similar nonprofit
organizations as a public service. WHD Opinion Letter FLSA2006-18, 2006 WL 1836646, at *1
(June 1, 2006). Such a person is not ordinarily an employee under the FLSA if he or she
volunteers without contemplation or receipt of compensation. Id. Of course, the volunteer must
offer his or her services “freely without coercion or undue pressure,” direct or implied, from an

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employer. Id.; see 29 C.F.R. § 553.101(c); cf. Acosta v. Cathedral Buffet, Inc., 887 F.3d 761,
767 (6th Cir. 2018) (“The type of coercion with which the FLSA is concerned is economic in
nature, not societal or spiritual.”).
OPINION
Your letter suggests that the majority of your client’s members who previously received a flat fee
to serve as Graders would continue to serve as Graders for the various service-oriented reasons
outlined in your letter, including giving back to the profession and others. In addition, Graders
are typically highly compensated executives who continue to receive their regular salaries from
their primary employers. They travel from their home locations to serve as Graders, and do so
only once per year for no more than two weeks. These and other factors outlined above indicate
that Graders offer their services freely and without pressure or coercion. For purposes of this
discussion, we assume that you correctly characterize the Graders’ motivations.
As your client will not pay any fees to the Graders going forward, the Graders would perform
their services solely for the service-oriented reasons identified in your letter, and without
contemplation of compensation. Your client could continue to pay for Graders’ travel, lodging,
meals, and other expenses incidental to volunteering without negating their volunteer status. See
WHD Opinion Letter FLSA2005-6NA, 2005 WL 5419042, at *1-2 (Aug. 26, 2005).
In sum, based on the facts provided, it is our opinion that your client could properly classify
Graders as volunteers under the FLSA going forward. We trust that this letter is responsive to
your inquiry.
Sincerely,

Bryan Jarrett
Acting Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C. §
552(b)(7).