HR Compliance

Volunteers: To Train or Not to Train on Anti-Harassment?

By

Kristin Birchell

| Aug 27, 2018

Sexual harassment training is one of the most important and effective measures employers can take in preventing the legal risks associated with sexual harassment claims. Currently, some states have state-mandated sexual harassment training requirements for private-sector employers, and many states require such training in the government sector.

These requirements may raise questions about who should be trained, and if training only certain individuals could negatively impact business.

Concerns over training volunteers

Courts have held that employers can still be held liable with respect to sexual harassment claims when it comes to non-employees, including volunteer workers. Therefore, it is a best practice to train all workers on anti-harassment efforts, including volunteers, to protect your business and its workforce.

But does requiring volunteer workers to attend this training blur the line between who is considered a volunteer and who is an employee?  Bottom line, could anti-harassment training of volunteers potentially open your company up to wage-and-hour violations?

Typically, the answer is “no.” However, it is helpful to understand the difference between a volunteer and an employee to make sure that your organization can maintain a distinction between the two and, therefore, avoid unintentional subjection to liability.

Volunteer classification

In general, volunteers are not covered by many wage-and-hour laws, including those pertaining to overtime and minimum-wage protections. Therefore, establishing who is considered a volunteer can be an important decision and step to take as an organization.

The Fair Labor Standards Act (FLSA) defines volunteers as those who perform hours of service for a public agency for civic, charitable or humanitarian reasons without the promise, expectation or receipt of compensation for services rendered. Generally, these volunteers do not displace paid workers and do not perform work that otherwise would be performed by paid employees.

For the most part, training individuals will not blur that line if the person meets the requirements of a volunteer under the FLSA. However, this distinction could get complicated if your workers do not fall within all of the defined requirements, such as providing compensation for completing sexual harassment training.

In cases where a person does not meet all the defined requirements of a volunteer under the FLSA, the U.S. Department of Labor and courts would engage in a situational analysis to determine if the worker could still, in fact, be considered a volunteer. This analysis would include factors such as the nature of the service performed by the worker or the type and amount of compensation or benefits that the worker receives or expects to receive.

The bottom line

It’s important to note that the Department of Labor has indicated that the FLSA is not to be construed in a way that discourages volunteerism, and that organizations should be allowed to accept volunteer workers without the threat of liability for wage-and-hour violations.

What does that mean for you? That training your volunteers on sexual harassment protects your company and your employees. If your volunteers meet the FLSA requirements, it’s in the best interest of your employees and your organization to give those volunteers anti-harassment training.

Disclaimer: This blog includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal problems.

About the Author

Kristin Birchell

As a compliance attorney for Paycom, Kristin Birchell monitors legal and regulatory changes at the state and federal level, with a focus on labor and employment laws, to ensure the Paycom system is updated accordingly. Previously, she served as an attorney at the Oklahoma City law firm Derryberry & Naifeh LLP. Birchell earned a bachelor’s degree and MBA from the University of Central Missouri, and her Juris Doctor from the Oklahoma City University School of Law. Outside of work, she enjoys cooking, hiking, going to the movies and spending time with her husband.

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