Q: We are losing staff left and right due to COVID. We have a paraprofessional who would like to help out and “volunteer” as a coach. Can we take her up on her offer?
A: Unfortunately, no. Because the paraprofessional is a nonexempt employee, the District would be required to pay her for all worked performed, even if she “volunteered” for the work.
Nonexempt employees are entitled to be paid for all work they perform on behalf of a school district even if they volunteer for the work. However, there are two exceptions to this rule. First, a nonexempt employee who is a parent, may volunteer without compensation if three elements are met: (1) the activity directly involves the education and participation of the employee’s child; (2) the activity is performed without expectation of compensation; and (3) there is no coercion or pressure on the employee to volunteer. See Wage & Hour Op. FLSA 2006-40 (Oct. 20, 2006). An example of this situation would be an instructional aid (nonexempt employee) parent volunteering to help decorate the set of the school play in which their child is performing.
The second exception is when a nonexempt employee volunteers to perform work in a different capacity from their regular employment on a sporadic or occasional basis. In this circumstance, the employee is entitled to at least minimum wage for the hours worked, but the hours spent doing the additional work do not have to be combined with the employee’s regular hours for purposes of determining overtime pay. The Department of Labor defines “occasional or sporadic as infrequent, irregular, or occurring in scattered instances.” 29 C.F.R. § 553.30(b)(1). Three criteria must be met in order for the school district to pay straight time for the additional hours worked: (1) employee volunteered for the assignment; (2) the work is different from the employee’s regular work; and (3) the assignment is occasional and sporadic. An example of this circumstance would be a secretary (nonexempt employee) volunteering to be a ticket taker at one home football game. Here, the secretary would be paid straight time for taking tickets, without the school district being required to pay overtime.
For specific questions or additional information regarding employees and volunteering, please consult with your local school law attorney.