22 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP “volunteer” status, anyone deemed a volunteer under federal law is also exempt from the minimum wage requirements imposed by Massachusetts law.128 The DOL limits volunteer status to “those individuals performing charitable activities for not-forprofit organizations” and thus specifically precludes individuals from volunteering for a for-profit entity.129 In general, individuals who volunteer their services for public, religious, or humanitarian purposes without any expectation of payment are not considered employees of the non-profit organizations they serve and therefore are not entitled to pay under the minimum wage laws. The DOL examines six factors to test whether an individual qualifies as a bona fide “volunteer”: 1. The nature of the entity receiving the services 2. The receipt by the worker of any benefits, or expectation of any benefits, from his or her work 3. Whether the activity is less than a full-time occupation 4. Whether regular employees are displaced by the “volunteer” 5. Whether the services are offered freely without pressure or coercion 6. Whether the services are of the kind typically associated with volunteer work130 In applying this test, courts tend to focus on the benefit conferred on the organization by the worker.131 If the organization relies too heavily on its “volunteers,” courts are likely to find that the individuals’ services are for the benefit of the employer and deem the individuals to be employees.132 In addition, if an individual performs “volunteer” work in exchange for some 128 DLS Opinion Letter MW-2003-009 (Aug. 11, 2003) (stating that for purposes of determining volunteer status, Massachusetts has adopted the guidelines employed by the DOL). The DLS (the state entity that administers the minimum wage law) has issued two opinions on volunteers. First, volunteers working a maximum of seventy-two hours per month in a food pantry were not employees because they did not displace other employees and only worked part-time. Id. Second, a woman who volunteered fulltime as a vocational case manager was an employee and not a volunteer where she worked alongside employees performing essentially the same work, she could not take time off without prior approval, and she was treated like an employee in all areas except wages and benefits. DLS Opinion Letter MW-2002-021 (Aug. 9, 2002). 129 DOL Wage & Hour Opinion Letter FLSA1999 (Sept. 30, 1999). See also Brown v. New York City Dep’t of Educ., 755 F.3d 154, 163 (2d Cir. 2014) (holding that, under public agency exception, individuals need not be motivated solely by civic, charitable, or humanitarian purposes to be volunteers, but instead may have mixed motivations for performing volunteer work, such as building one’s resume). 130 DOL Wage & Hour Opinion Letter FLSA2001-18 (July 31, 2001). 131 See, e.g., Hallissey v. Am. Online, Inc., 2006 U.S. Dist. LEXIS 12964, *34 (S.D.N.Y. Mar. 10, 2006) (denying AOL’s motion for summary judgment because an issue of material fact existed as to whether “volunteers” were employees for FLSA purposes where internal company memoranda and testimony confirmed that AOL “viewed its volunteer force as something that was advantageous to its business”). 132 Id.
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