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Nonprofit Law/non-profit employees

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Question
I have been told that a person who works for a non-profit for money is not allowed to volunteer for the same non-profit in their "off" time. The person is called an "independent contractor" by the non-profit however their employment doesn't meet the standard of being an independent contractor. They are more like an employee who is not categorized properly. The paid position is working in a small greenhouse. The "volunteering" is helping build anouther greenhouse 55 miles away on the 2 "off" days. This is in California. I hope this is a clear question. I look forward to your reply. Thank you.

Answer
I have in my profile that this free forum is only for general questions about IRS federal exemption issues of 501(c)(3) organizations. Your matter is not an exemption issue but an employment law issue (applies to nonprofits and for-profit).Even though this forum is not for such state law issues, if you give me your state I may be able to direct you.  Misclassification of independent contractors is a big issue for the IRS and the States. You did not ask how to correct that treatment, but if you are interested, see http://goo.gl/6PKkVQ the posting by Nolo Press, the largest U.S. publisher of legal information for non-lawyers.

Regarding the Federal Fair Labor Standards Act (FLSA), the Department of Labor has written:

---Start of Excerpt---
There is no exclusion in the FLSA for private non-profit organizations. Employees of non-profit organizations are individually covered under the FLSA if, in the performance of their duties, they are engaged in interstate commerce or in the production of goods or materials for interstate commerce. In
determining whether employees are engaged in interstate commerce for purposes of the FLSA, "the purpose of the Act was to extend federal control in this field throughout the farthest reaches of the channels of interstate commerce." Walling v. Jacksonville Paper Co., 317 U.S. 564, 567 (1943).
---End of Excerpt---
http://pages.citebite.com/f1k0x3f3e6cqq

Some states provide more protection for workers and, therefore, I suggest that you contact the California Labor Department, Wage and Hour Division. www.dir.ca.gov/dlse/HowToFileWageClaim.htm

In any case, independent contractor may volunteer to work for nonprofits which are paying them for other work, but there are regulations relating to employees. The U.S. Labor Department has published:
--- Start of Excerpt ---
In circumstances where individuals who are regular employees of religious, charitable, or non-profit organizations donate services as volunteers to such organizations but in a different employment
capacity, the time so spent is not considered compensable under the FLSA because the Wage and Hour Division will not claim that an employee/employer relationship exists for that different employment
capacity. For example, office employees of the Association or one of its volunteer companies may volunteer to provide EMS during off-duty hours as an act of charity. On the other hand, such a regular
office employee may not volunteer uncompensated to handle office work arising from a special fund drive or other operations of the Association or one if its volunteer companies.
---End of Excerpt---
http://pages.citebite.com/l1h0y2g2y0jbo

Harvey Mechanic
Attorney at Law
Harvey108@hotmail.com

P.S. This response is intended to be a general statement of law, should not be relied upon as legal advice and does not create an attorney/client relationship.  

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Harvey Mechanic

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I am an attorney and I volunteer time to answer general questions about U.S. Federal income tax issues of nonprofit 501(c)(3) public charities only. Those questions could be about establishing and maintaining legal requirements for such non-profit organizations in the United States, including Internal Revenue service filings and requirements. I will not be working on this free forum to answer questions about Nonprofit's possible unrelated or for-profit businesses or how to fill out forms. This forum is only for general questions about federal tax law, not as the law applies to your specific situation. If you do not make your question public then I will not be spending much of my donated time on answers that would not benefit the public. If you have other questions, please contact me at Harvey108@hotmail.com I will reply from my email. In any case, do not reveal confidential information to me until after I have contracted with you to provide personal legal services. My responses on this forum are intended to be general statements of law, should not be relied upon as legal advice, and do not create an attorney/client relationship. For me to consider your individual situation and how the law applies, I would need to gather extensive information about the situation. To search my previous answers you can do a Google search by "site:allexperts.com/q/nonprofit" without the quotes and then add your search terms before hitting enter.

Experience

I have been practicing law and especially the law of nonprofit organizations since 1990 when I was admitted to the New York Bar and I have maintained my status with the Bar since that time.

Education/Credentials

B.S. Columbia University in New York City, 1970

J.D. (Law Degree) Brooklyn Law School, 1990 -- Cum Laude.


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