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Legally speaking, a for-profit business cannot have a volunteer. The law defines employing someone as permitting someone to work for the business. The fact that the worker isn’t paid is not relevant—the farm is being helped and the farm owner is permitting the work. That means the worker is an employee (unless they are an intern or independent contractor). The federal definition of a volunteer is someone who is motivated by charitable or humanitarian reasons for a public agency with no expectation of receiving compensation for her services. So, volunteering for a for-profit business just doesn’t work under the dominant legal paradigm.
The reasoning behind this is again about preventing exploitation and coercion of workers. If a business could “persuade” employees to volunteer without any legal repercussions, the resulting economic and power dynamic would easily create unjust situations. A notion of fairness is also at play; if the business is operating to make money, workers deserve compensation for their labors.
Good question! We have two rules of thumb when deciding if a situation creates a volunteer-turned-employee situation: 1) Is the work of a for-profit business being performed? And 2) If it looks like an employee, it’s an employee. The following scenarios give a better idea of how this all plays out in legal reality.
Across the country, farms offer customers the chance to pick their own produce at the farm before the customer pays for it and takes it home. Is this employment? The simple answer is no. Focus on the first rule of thumb: Is the work of a for-profit business being performed? A U-pick farm is in the business of offering customers the opportunity to pick their own product. So, the work of a u-pick farm is to advertise to customers, give them a parking space, tell them where to pick, take their money, and so forth. If volunteers were to do those business activities, that would be employment. Actually, picking the fruit is not the farm’s work; the opportunity to pick fruit is the thing customers are buying. It isn’t volunteering, either. Rather, the person is simply a customer.
By definition, gleaning is when non-marketable product is removed from the fields. Referring back to the first rule of thumb, removing non-marketable product from the fields is generally not the work of the farm. If the product truly isn’t marketable, no business reason exists to remove it. (Yes, field sanitation may motivate removal but a farmer would likely choose a more efficient method than hand labor followed by transit to a food pantry.) Allowing a nonprofit organization to supply hand labor to remove the product and take it to the food pantry does not create employment for the farm. The volunteers are doing the work of the nonprofit, perhaps, but nonprofits have much greater latitude to have volunteers without creating an employment situation.
If a farm has CSA members coming out to the farm solely to pick for themselves, then they are not working for the farm. The farm may have a u-pick component to the farm, which is addressed above. Or, the farm may simply allow customers to pick products as they wish. Let’s say that a mother and her child come to Amanda’s farm to pick up their CSA share. While they are there, they pick some raspberries. Turning to our second rule of thumb, this does not look like employment. The mother and her child weren’t asked to pick the raspberries and there is no expectation that they do so; it was part of the recreation opportunities on the farm.
Let’s say instead that Farmer Amanda sets schedules, assigns specific tasks, requires a certain level of work in return for a CSA share, tells the CSA members what to do, has expectations in terms of speed and effectiveness of the tasks at hand, and, as a result the work of the farm is achieved by the “volunteer.”
Farms often enter such arrangements with CSA members or other community members and friends where “volunteer” time is required in exchange for farm products. This type of an arrangement is also known as a “worker share”, “working sharer”, or other title. In the eyes of the law, this is most likely seen as employment. Recall that under the legal definition, an employee is someone who employers direct or permit to work for them under a for-profit business. Unlike a volunteer, the employee expects compensation for her services. In addition, the employee typically has little discretion over the work that is assigned or how the work is performed. The farmer sets the schedules and assigns duties for worker shares and folks doing the work expect compensation—here, in the form of farm product. the CSA member or worker share is most likely an employee.
In summary, “volunteers” who actually engage in work for a for-profit farm are most likely considered “employees.” This means that all the applicable employment laws must be followed for these workers. To start, review Section 3, Basic Checklist for Hiring a Farm Employee in Maine. The following highlights some key points relevant to “volunteers” engaging in work for a for-profit farm:
Following all these employment laws can be overwhelming for farmers with volunteers of any type. After all, even though for-profit farms are motivated to some degree by profits, many also emphasize social and ecological missions such as providing healthy food to the community and adopting conservation measures and farming practices. This explains why so many folks are willing to volunteer on farms with joy!
Farmers with for-profit operations must realize that they are taking on some level of risk if they do not fully comply with applicable employment laws when having “volunteers.” With that said, a couple areas present particularly high risk. It’s highly recommended that farmers pay close attention to two areas as soon as possible: injuries and minimum wage requirements.
Farming is dangerous and there’s a high potential that injuries will happen no matter what precautions are taken. Even if a volunteer gets hurt and has no intention of suing the farm, the volunteer’s health insurance company will likely have a different perspective. Insurance companies have a right to file a claim against a farm where an injury occurs, even if the injured person doesn’t want to file the claim.
In addition, employers are generally required to carry workers’ compensation or some other form of employer’s liability insurance for all employees (and volunteers who are actually employees) in Maine. If the farm doesn’t have workers’ compensation or another form of liability insurance in place, the farm could be fined even if an injury never occurs.
To avoid such risks and headaches, farmers should strongly consider carrying workers’ compensation or other liability insurance to cover injuries of any and all volunteers.
Farmers who provide some compensation to volunteers—whether in the form of cash or in-kind payments—run the risk of making it look more like an employee arrangement. Farmers who are required to pay minimum wage to their employees (i.e. farms with 500 or more man-days or farms assigning non-agricultural tasks to their volunteers; see Section 3 for more details), should strongly consider ratcheting up any compensation provided to volunteers to at least the minimum wage amount. Otherwise, they may be better off offering no compensation, as it will look less like an employment arrangement.
Keep in mind that taxes, recordkeeping, eligibility to work requirements, and so on all still apply. However, these are not necessarily the highest risk factors considered by most farmers. It’s up to each farmer to assess their risk while realizing what’s at stake. For basic obligations when hiring an employee, refer to Section 3 for more details.
Many farms have used online services that connect volunteers to farmers. These volunteers are often domestic or international travelers who work in exchange for room and board. Farmers may be asking, can these folks work for free in exchange for room and board? Are these types of work-for- lodging arrangements exempt from employment laws?
The answer is no. Work-for-lodging arrangements are not any different from what was discussed above for interns and volunteers. Folks who do work on a for-profit farm under the direction of the farmer for some sort of compensation—including room and board—are employees in the eyes of the law and therefore employment laws apply.
This is not to say that work-for-lodging is illegal. It’s more accurate to say that the law has not caught up to these innovations. Many online sites and services such as shared rides and shared home-stay services are relatively new and on the fringe of the law. It takes time for the law to adapt itself and apply to new systems and structures. This naturally creates a level of uncertainty. With that said, farmers need to be cautious, as having a work- for-lodging volunteer involves uncertainty and therefore a degree of risk. The farmers could face legal and financial liability in the form of injuries, wage claims, and various enforcement actions.
So what should the farmer do? The truth is that volunteering comes in all shapes and sizes. The answer to what a farmer should do to manage and reduce these risks is going to depend on the individual circumstances of each farm, including the farmer’s level of risk adversity, the types of activities the volunteer is engaged in, the duration of the arrangement and so on. The purpose of the guide is to explain what the law is. The risk- managing conclusions are up to you!
Ralph’s idea of setting up a non-profit farm so he can have volunteers will certainly work for him given his mission and dedication to training. But it will only get him so far. For the most part, non-profit farms can have unpaid volunteers. However, non-profit farms need to pay attention to three key limitations.
A non-profit farm cannot suddenly require a regular employee to do the work they regularly do for free or require additional unpaid work. This is obviously unfair to the employee who expects compensation for their work. With that said, the farm can have a one-off event, such as a weekend fundraiser, and open up volunteer opportunities to regular employees. However, the farmer cannot require employees to participate in such “volunteer” opportunities or make it in any way a condition of continued employment. Effectively forcing an employee to volunteer is by no means volunteering!
Nonprofit farms also need to be cautious about situations where they’re providing “volunteers” everything they need for their livelihood in exchange for their work. This is based on a U.S. Supreme Court decision, which is known as the Alamo case. The Alamo case is the strongest legal guidance we have to go on to determine when it’s acceptable for non-profits to have volunteers. The background facts of the case help put these guidelines in perspective.
The Alamo case involved a nonprofit organization that ran a set of commercial operations including making and selling clothing, distributing candy, and raising animals to sell as meat. The organization ran these operations to help train and rehabilitate previously homeless folks with drug dependency issues. The organization provided these folks food, shelter, and job training. In exchange, the recipients “volunteered” for the non-profit’s different commercial operations. The Supreme Court said this was not okay. Here’s why. The “economic reality” was that the nonprofit provided these folks everything they needed for their livelihood. They were dependent on the arrangement for their survival and couldn’t simply leave. This type of arrangement put the workers in a potentially coercive power structure, which is precisely why employment laws exist.
The takeaway is this: If the non-profit farm provides everything its volunteers need—such as room, board, and clothing for long periods of time—it risks creating an employment relationship.
Non-profit farms must also be sure not to undercut prices to give them a leg up over other farms. This is again based on the Supreme Court’s insights in the Alamo case. The court pointed out that the “economic reality” of how the nonprofit was structured gave the non-profit an unfair advantage over competitors. Because the non-profit wasn’t paying the workers minimum wage, it was able to sell its candy, clothing, and meat products at a far lower price point than their competitors. The court said this isn’t fair to others engaged in commerce. Based on this economic reality, the court said that the “volunteers” were actually employees and that the non-profit was required to pay them minimum wage and follow other employment laws.
The lesson here is that non-profit farms can’t leverage their unpaid volunteers as a way to compete at an unfair advantage with other farms. The farm must play fair, or it loses its privileges as a non-profit to have volunteers.
Farmers who have or are thinking about having a non-profit farm will want to be careful about how they structure volunteer arrangements. First, they must not require regular employees to “volunteer” for free. Second, it’s recommended that the non-profit farm not provide their volunteers with everything needed for a livelihood—such as room, board, clothing, and so on. The non-profit farm may want to consider making its volunteer positions part-time or temporary as this will less likely appear as though the volunteers are depending on the nonprofit entirely. Finally, the non-profit farm must be careful not to compete with an unfair advantage with for profit farms. A simple way to do this is to price the items the non-profit farm sells at market-level prices.
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