For Community Manager Appreciation Day (CMAD), I organized a panel discussion about managing online community volunteer programs. I was joined by a wonderful lineup, including David DeWald, Rebecca Newton and Scott Moore.

The panel was part of My Community Manager’s 24 hour CMAD livestream. Thank you to everyone who was involved in putting the event together, including Jonathan Brewer, Sherrie Rohde, Dom Garrett, Berrak Sarikaya, Aaron Biebert, Rachel Miller, Christin Kardos and Carrie Keenan.

One of the consistent themes in the conversation was the importance of respecting volunteers. Part of that is having at least some understanding of the laws that relate to volunteers in your country. In the U.S., we have something called the Fair Labor Standards Act (FLSA).

Standard disclaimer: I am not an attorney, and this article does not constitute legal advice.

Employment law attorney Blake Bertagna wrote a great analysis of how the FLSA limits volunteering at for-profit organizations, which I found through Evan Hamilton.

If you read the document and do your own Google searches, you’ll find a fairly bleak legal picture for volunteering at for-profit entities. Generally speaking, it’s not something that is supposed to happen. Naturally, this has made many community managers and professionals uneasy about working with volunteers. You will find random people online who will swear, up and down, that a volunteer moderator is a violation of the FLSA. Are they correct? They might be, but it’s unclear.

When the average person pictures volunteering at a for-profit, they might see someone running the cash register at McDonald’s without compensation. But the online community use case is a little more nuanced. Most volunteers in an online community were first members that found value in the community. They commonly volunteer because they want that community to continue to be valuable, to them and others. They do so of their own volition, because they find contributing enjoyable, purposeful and rewarding.

People have been volunteering in online communities for more than 30 years now. The fact is, until there is a really good test case – a legal proceeding that specifically speaks to the unique circumstances that exist in a well-managed online community – we don’t really know. Companies should check with their counsel, but those perspectives may vary.

The class action lawsuit that targeted the AOL Community Leader Program, and the subsequent Department of Labor investigation, aren’t particularly helpful. AOL’s usage  and treatment of volunteers was quite different from how most online communities utilize them.

Who Does the FLSA Apply To?

It doesn’t apply to the vast majority of online communities. According to the Department of Labor, a covered business is one that:

  1. Generates gross annual revenue of $500,000 or more, “exclusive of excise taxes at the retail level that are separately stated;” or
  2. “Is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, or the mentally ill who reside on the premises; a school for mentally or physically disabled or gifted children; a preschool, an elementary or secondary school, or an institution of higher education (whether operated for profit or not for profit);” or
  3. “Is an activity of a public agency.”

Most online communities (and the people or businesses that operate them) do not generate gross revenue of $500,000 or more, or fall into the other categories. For this reason the FLSA does not impact many small businesses, sole proprietorships or people who own and operate communities. I personally fall into this category.

That does not mean, however, that you should not take heed of the FLSA or how the courts have applied it. While this article is primarily targeted at those that the act does apply to, a lot of this comes down to simple respect of your volunteer staff. If the day comes that you and your volunteer program are held to the FLSA, you will want to ensure that you have placed yourself in the best position possible.

To help you do this, let’s go over the points that Bartagna makes in his analysis, and talk about how they apply to the work that we do. It’s worth noting that these are simply a group of factors that can be used to determine whether a volunteer should be considered an employee. There isn’t a particular test that the courts use, but a combination of these issues (and potentially others) will lead to the decision.

Is There an Expectation of Compensation?

Much of Bartagna’s analysis relies on a more than 30 year old case, Tony and Susan Alamo Foundation v. Secretary of Labor, involving a nonprofit that operated commercial businesses that were staffed by volunteers. These volunteers were people that the organization had helped get back on their feet, including those battling drug addiction.

In that case, the Supreme Court defined a volunteer as “an individual who, without promise or expectation of compensation, but solely for his personal purpose or pleasure, works in activities carried on by other persons.” If an expectation of compensation exists, then they are employees and not volunteers.

But this can take other forms, beyond money. With the Alamo case, the organization had provided their volunteers with shelter, food, clothes and other benefits, instead of compensation. This led to a dependency upon the organization. Because of that, the volunteers were determined to actually be employees. Even if the organization was trying to do good, and even though the volunteers said they didn’t want to be paid, it didn’t matter to the court.

Going back to the AOL lawsuit (Hallissey v. America Online, Inc.), it was found that volunteers had chosen to step forward because they believed it would lead to a paid opportunity at AOL. The court decided that “AOL [had] used its superior bargaining power to require a certain amount of ‘volunteering’ before an individual would be considered for a paid position.”

This doesn’t necessarily mean that you can’t provide your volunteers with gifts or other perks. Bartagna just cautions against “an expectation of some considerable benefit, such as future employment. If any value or benefit is provided, it should be minimal or nominal in nature.”

Who Receives the Immediate/Primary Benefit?

When you look at the relationship, is the volunteer receiving the primary benefit, or is the community/company? I suspect that, when we do get that test case, this may be one of the main areas that is argued.

Community members volunteer to help in an online community because they have benefited from the community and want to continue to do so. As such, they step forward to help care for this thing they enjoy. That volunteering may offload some work from the plate of the community manager or the organization hosting the community. Who benefits more?

“Where objective indicia reveal the individual to be bringing a benefit that is insubstantial or indirect – and particularly where the individual is also receiving some personal enjoyment out of the work being performed – then a common attribute of employment is absent,” writes Bartagna.

Is the Work Integral to the Business?

“A volunteer typically serves an auxiliary role in a business’s operation,” he says. “In contrast, an employee tends to perform work that is essential to the very operation of the business. Thus, if an individual’s work is integral to the employer’s business, that individual looks more like an employee than a volunteer.”

This is another topic that could lead to an interesting debate.  If you have volunteer moderators, is the time they spend moderating integral to the business? If the business is the community, and you tout yourself as having a great, respectful community, how are they not integral? What would happen if they went away?

In an opinion letter from 2002, Department of Labor deputy administrator Eric S. Dreiband weighed in on a grocery store that had allowed students to voluntarily bag groceries and take them to out to the customers’ cars. They did this to earn tips as part of a fundraising effort. It didn’t matter that the students wanted to do it. This was work that the grocery store normally paid employees to do. Such an arrangement can allow a business to gain an unfair competitive advantage over competitors who pay wages for the same work.

Are They Volunteering Under Coercion or Pressure?

Are they volunteering because they are afraid something bad will happen if they don’t? This is pretty straightforward. It’s not volunteering if you feel like you have to do it. No community professional should want volunteers that don’t want to be there.

What Requirements Are You Placing on Their Time?

You can’t schedule volunteers. They don’t have shifts. Time requirements should be minimal or non-existent. They participate because they want to. On a related note, volunteering is normally seen as a part time responsibility. If it extends into full time, it is more likely to be considered employment.

Are You Asking Employees to Volunteer to Do Similar Work?

This one doesn’t really apply all that well, as written. But to reiterate, if you have employees and you ask them to volunteer time to complete duties that are similar to the ones they perform on the job, that’s a no-no.

Let’s flip this around, instead, and talk about what happens when volunteers do things that a paid employee also does. You have a paid, full-time moderator. And then you have volunteer moderators who might do similar things, on a lower level, for a few hours a week. This speaks to the grocery store example above. Ideally, a separation of duties seems like the best route. If you need moderators and you can afford to pay them, you should.

However, it’s not always cut and dry. If you have a community manager who gets paid, but no budget for anyone else, and they have a few volunteer moderators, is that an issue? The community manager inevitably is involved in moderation, as one of their many tasks. That feels like a haphazard interpretation, but it’s certainly plausible. This thinking could be extended quite a long way. You also pay your community manager to participate in your community. Which is what your members do, voluntarily.

I use moderators as as consistent example in this article because they are a very common form of volunteering that exists in online communities. But, certainly, there are numerous other tasks that volunteers have performed, in my communities and others.

How Long is the Relationship?

In the Alamo case, the fact that the volunteers had been with them for extended periods, up to several years, worked against the organization. This is a tricky one, because it isn’t uncommon for online community volunteers to stick around for many years, for much the same reasons that we have community members who remain in the community for a long time.

I take pride in some of my long term volunteers and the impact they have had. The reason they continue to be a member of the team is because they find it rewarding, and they want to continue to be a part of the community.

You could certainly manufacture a way around this by making it so that volunteer spots have a forced churn, where people only commit for a specific time frame before they move on. For some roles, like moderator, it can take quite a while for someone to really understand what to do. But for others, a rotating group might be less detrimental.

Volunteering in Online Communities

Regardless of what the law says or what your or my interpretation of it is, many (the majority?) of online communities incorporate some element of volunteering into their organizational structure. Again, the FLSA doesn’t apply to most of them, but is it as easy as saying that those who generate $500,000 or more in gross revenue shouldn’t have volunteer contributions at all?

What should not be lost in this discussion is the fact that many community professionals, likely including some of the people you respect most in our industry, got their start as volunteers. I’m one of them. Being asked to join the volunteer staff of an online community was one of the pushes that made me realize that this could be a profession.

Ideally, when and if the time comes where online communities find themselves under the microscope, we can find some balance where that can still happen, and where volunteers can still contribute in online communities of their own volition, without enabling people and corporations who lean on them too heavily and take advantage of them in a way that is abusive or unfair. That might be a tall order.