Nonprofit Radio: Unpaid Interns


I’ll be on Nonprofit Radio this Friday at 10:00 am PT / 1:00 pm ET discussing with host Tony Martignetti what nonprofits need to know about unpaid interns and recent developments in the law. Catch us live on Talking Alternative or a few days later on iTunes.


Many nonprofits (and for-profits) make use of unpaid interns without an understanding of the laws designed to ensure workers’ rights. Organizations cannot simply hire and not pay “interns” if these individuals would legally fall within the definition of employees. Employees have certain rights, including the right to a minimum wage. Unfortunately, the laws in this area have been confusing to understand and subject to changes based on certain court cases. And there have been major changes in the past couple of years nonprofits that hire unpaid interns should be aware of.

Past Guidance (from a previous blog post)

Volunteer, Intern or Employee?

At first blush, it might seem simple to distinguish between a volunteer and an employee. But such distinction gets much more difficult to make when an organization pays a “stipend” to the volunteer. If the stipend is compensation for services, the paid individual may not be a volunteer and, if the payment is for regularly rendered services, may be an employee. Improper classification can raise many of the same issues described above for improperly classifying an employee as an independent contractor.

It is possible that the payment of a stipend to a volunteer may not convert the volunteer to an employee if the stipend is considered a reimbursement of certain types of expenses, a de minimis fringe benefit, or a nominal fee for service. Note that a Wage and Hour Opinion Letter (FLSA2006-28) expressed that the Department of Labor will presume that a fee paid to a volunteer is nominal as long as the fee does not exceed twenty percent of what an organization would otherwise pay to hire a full-time employee for the same services. However, organizations paying stipends to volunteers should confer with an employment/tax attorney for counsel regarding these issues.

A person receiving payment from a nonprofit may also fall under the classification of intern. Interns are also not employees and not subject to minimum wage and overtime laws under the FLSA [Fair Labor Standards Act] if they meet the 6-factor test. See Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act and Legalities of Nonprofit Internships (Blue Avocado), which discusses the practical difficulties of meeting factor 4 (“The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded”). Under the FLSA, a person working in a part of the nonprofit that is considered a commercial (unrelated business) activity will not be recognized as a volunteer.

Department of Labor’s 6 Factor Test

The Department of Labor (DoL) has provided guidance to employers by publishing a 6-factor test. For a for-profit employer, all 6 factors must be met:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

However, the FLSA makes a special exception under certain circumstances for individuals who volunteer to perform services for a state or local government agency and for individuals who volunteer for humanitarian purposes for private non-profit food banks. The DoL also recognizes an exception for “individuals who volunteer their time, freely and without anticipation of compensation for religious, charitable, civic, or humanitarian purposes to non-profit organizations.”

Unpaid internships in the public sector and for non-profit charitable organizations, where the intern volunteers without expectation of compensation, are generally permissible. WHD is reviewing the need for additional guidance on internships in the public and non-profit sectors.

New Developments

in 2015, the 2nd Circuit (NY, CT, VT) vacated a District Court’s decision in Glatt v. Fox Searchlight Pictures, Inc. (the “Black Swan” unpaid intern case) and established what appears to be a more employer-friendly 7 factor test relying heavily on who is the primary beneficiary of the relationship – the organization or the worker:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation; any promise of compensation, express or implied, suggests that an intern is an employee—and vice versa. [This single factor might be sufficient for nonprofit charitable organizations.]
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitment by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

On August 24, 2016, a court in a case called Wang v. The Hearst Corporation used the Glatt standard to dismiss a unpaid intern lawsuit. The 11th Cir. (AL, FL, GA) also adopted the 2nd Cir. approach. Notwithstanding these decisions, the DoL has not amended its 6-factor test and may wait to see how other Circuits decide.

7 Tips

  1. Get a signed writing from an unpaid intern about the position being an uncompensated, non-employee position.
  2. Do not merely fill an employee position with an unpaid intern; a new position should be created that incorporates the internship factors.
  3. Create and include in the internship educational sessions unrelated to accomplishing the day-to-day operational goals of the nonprofit.
  4. Train supervisors of unpaid interns on the differences in managing interns vs. employees (emphasis on education and training and accommodating school schedules).
  5. Require proof of academic credit eligibility in advance of hiring the unpaid intern.
  6. Assess and limit the intern’s day-to-day operational duties and tasks that are not directly related to the educational goals, particularly those that are menial.
  7. Limit the length of an intern relationship.



Nonprofit Radio: New Overtime Rules – Temporarily Stopped (11/22/16 update)


I’ll be on Nonprofit Radio this Friday at 10:30 am PT / 1:30 pm ET discussing the new overtime rules and their impact on nonprofits with host Tony Martignetti. Catch us live on Talking Alternative or a few days later on iTunes.

The Department of Labor’s final overtime rule updates the salary level required for the executive, administrative, and professional (“white collar”) exemption to ensure that the Fair Labor Standards Act’s (FLSA) intended overtime protections are fully implemented, and it provides greater clarity for white collar workers and their employers, including non-profit organizations. The final rule will also lead to better work-life balance for many workers, and it can benefit employers by increasing productivity and reducing turnover. – U.S. Department of Labor

Important Update (11/22/16)

A federal district judge issued a preliminary injunction temporarily stopping the implementation and enforcement of the new overtime rules we discussed that were slated to take effect on December 1, 2016. Whether the preliminary injunction turns into a permanent injunction is still unknown. Read more about the preliminary injunction here (National Council of Nonprofits).


The FLSA requires that most employees in the United States be paid at least the federal minimum wage (currently, $7.25) for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

A common set of exemptions from the overtime rule, referred to as the white-collar exemptions, applies to employees employed as executive, administrative, or professional (EAP) employees*, generally only if (1) they are paid on a salary, not hourly, basis (the salary basis test); (2) their duties primarily involve executive, administrative, or professional duties as defined by the Labor Department regulations (the duties test); and (3) their salary meets the minimum threshold (salary level test). Note, however, that the minimum salary threshold does not apply to teachers, lawyers, or doctors.

There is another exemption from the minimum wage and overtime rules for highly compensated employees* if their total annual compensation meets or exceeds the minimum threshold.

* As of the posting date, these links do not have updated thresholds resulting from the new rules described below.

New Overtime Rules

Updated Thresholds:

Most employees earning a salary of less than $47,476 per year ($913 per week) will be entitled to overtime compensation. This approximately doubles the previous threshold of $23,660 (unchanged since 2004), effectively requiring employers to pay overtime for most salaried employees receiving between $23,660 and $47,476 per year, which they were previously not required to do under the FLSA. Further, the threshold will be automatically be updated every three years, starting on January 1, 2020. Note that the salary level does not include payments for medical, disability, or life insurance, or contributions to retirement plans or other fringe benefits. Nondiscretionary bonuses and incentive payments (including commissions) may be used to satisfy up to 10 percent of the standard salary test requirement so long as such payments are paid on a quarterly or more frequent basis.

The highly compensated employee minimum compensation threshold is now $134,004 (previously, $100,000).

Effective Date:

December 1, 2016

What Employees (and Nonprofits) are Covered by the New Rule:

The overtime rules generally apply to employees covered by the FLSA. These include:

  • Employees of organizations considered a “covered enterprise” – generally organizations that engage in ordinary commercial activities that result in sales made or business done that of at least $500,000. Most charitable nonprofits that do not engage in ordinary commercial activities will not be subject to the new overtime rules except employees of the following named enterprises: hospitals; institutions primarily engaged in the care of older adults and people with disabilities who reside on the premises; schools for children who are mentally or physically disabled or gifted; federal, state, and local governments; and preschools, elementary and secondary schools, and institutions of higher education. Note that the term ordinary commercial activities is similar to, but not synonymous with, the term unrelated business activities (as such term is used for purposes of determining unrelated business income tax liability).
  • Employees who engage in interstate commerce (including through the phone or the internet) or in the production of goods for interstate commerce and employees whose work involves or relates to the movement of persons or things (including donated items) across state lines.
  • Employees who are covered by operation of specific state laws. According to the National Council of Nonprofits: “In at least 11 states [or jurisdictions], the changes to the federal rules will automatically apply to virtually all employees and employers.”

See the excellent flowchart on National Council of Nonprofits site: Is Our Nonprofit Organization Covered by the FLSA?

What Nonprofit Employers Can Do:

According to the Department of Labor:

Non-profit organizations may ensure compliance for those employees affected by the Final Rule in a number of ways, including providing pay raises that increase workers’ salaries to the new threshold, spreading employment by reducing or eliminating work hours of individual employees working over 40 hours per week for which no overtime is being paid, or paying overtime.


In 2014, President Obama directed the Department of Labor to update its regulations regarding minimum wage and overtime standards to ensure “workers are paid a fair day’s pay for a hard day’s work.” The new $47,476 threshold represents the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region (the South). According to the Department of Labor Q&A site:

The Department has concluded that the standard salary level of $455 weekly ($23,660 annually for a full-year employee) set in 2004 was too low to adequately account for the elimination of the former “long” duties test that ensured that employers could not avoid paying overtime by assigning lower-paid employees a minimal amount of exempt work. Furthermore, the real value of the salary level has fallen significantly since it was set 12 years ago. Today, the annualized equivalent of the standard salary level is below the 2015 poverty threshold for a family of four, making it inconsistent with Congress’ intent to exempt only “bona fide” EAP workers, who typically earn salaries well above those of workers they supervise and presumably enjoy other privileges of employment such as above average fringe benefits, greater job security, and better opportunities for advancement.


The Department considered several alternatives for setting the standard salary level to determine which method would work most effectively with the current duties test to effectively distinguish between overtime-eligible white collar employees and those who are bona fide EAP employees. Because the Department decided not to revise the current standard duties test, it set a salary threshold at a level reflective of employees who historically have received overtime protections from those who have not. Specifically, because the current standard duties test is substantially similar to the former “short” duties test, which before 2004 had been associated with a higher salary threshold, the Department looked at the historical ratios between the short and long test salary levels in order to assure that we restored the historical relationship between having a less rigorous duties test and an appropriately high salary threshold. The Department set the standard salary level at the 40th percentile of weekly earnings of full-time salaried workers in the lowest wage Census Region (currently the South), because it was at the low end of the historical range of short test salary ratios and would be appropriate across all areas and industries. The new salary amount will be $913 per week (which is $47,476 annually for a full-year worker) when this Final Rule takes effect on December 1, 2016.

Reaction from the Nonprofit Community

According to The Nonprofit Quarterly:

Among the more than 270,000 comments the DOL received to the proposed rule were many voices speaking for the nonprofit community, and they seemed to see only the negative impact on their operations; mission seemed to take a backseat to the difficulty of meeting a higher standard. Rick Cohen’s “brief review of one third of the posted comments found there was not one positive comment from a nonprofit.” The comments he saw predicted dire outcomes, staff reductions, service cuts, and even agency closings. No one seemed to see the increased pay for those earning low salaries as an important benefit to be supported. – Nonprofit Reactions to New Overtime Rules Run the Gamut

Independent Sector commented:

While IS believes that employees should be paid a living wage and similarly supports an increase in the salary threshold for eligibility to receive overtime compensation, there are many concerns that IS and others in the nonprofit sector have regarding this rule. As expressed in the submitted comments, IS is troubled by the agency’s lack of engagement with nonprofit organizations in developing its proposed new overtime rule, and urged four specific revisions to the plan before it is implemented: moving to a phased-in implementation; revising the terms of federal grants and contracts with nonprofit organizations; allowing for regional market differences to the proposed salary threshold; and implementing an open process for any changes to the duties tests.

Resources (updated 7/6/16)

Overtime Regulations and the Impact on Nonprofits (National Council of Nonprofits)

Breaking down your nonprofit’s obligation to pay overtime under the new federal rules (National Council of Nonprofits)

Overtime Final Rule and the Non-Profit Sector (Department of Labor)

Guidance for Non-Profit Organizations on Paying Overtime under the Fair Labor Standards Act (Department of Labor)

Overtime Rules for Nonprofits – videos (Independent Sector)

New overtime rules for nonprofits: what’s different about California? (CalNonprofits)

What’s different in California: Although the federal threshold for exempt status has been $23,660, in California the threshold for exempt status is set as twice minimum wage. So with the current minimum wage of $10/hour, the minimum for exempt status is $41,600/year, and as of January 1, 2017 when the minimum wage goes up to $10.50/hour, the minimum salary for exempt employees will be $43,680/year. So the gap between the old and new thresholds is narrower in California.

New Report: The Nonprofit Overtime Implementation Conundrum (National Council of Nonprofits)

Nonprofits Already Subsidizing Governments: The National Survey confirmed that seven out of eight nonprofits with government grants and contracts currently subsidize governments by providing services for which they are not fully compensated. Only 13 percent expressed the view that government grants contracts pay the full cost of the services provided on behalf of governments.


Employee Endorsements & Election Activities

Vote political elections icons. Illustrations for campaign leaflets, web sites and flayers.


As we’ve previously written in the first post of this series, 501(c)(3) organizations are prohibited from engaging in or sponsoring activities that intervene in a political campaign for public office.  However, this does not mean that all individuals associated with such organizations, including employees, volunteers, officers, and directors, are similarly prohibited from engaging in electioneering activities.  Individuals do not give up their First Amendment rights simply by associating with a 501(c)(3) organization, and organizations should be careful to avoid placing unnecessary (or impermissible) restrictions on such individuals’ activities.

Rather, a 501(c)(3) organization should adopt carefully-thought-out written policies regarding the use of the organization’s name, its resources, and staff time in connection with individuals’ personal activities.   First and foremost, a 501(c)(3) organization should put into place practices to ensure that none of its assets or facilities are used in connection with an individual’s electioneering activities.  This includes not only the organization’s funds, but also its telephones, computers, email accounts, letterhead, mailing lists, and copy machines, as well as other resources.  The organization should also generally ensure that any compensated staff member does not use time on the job for such activities and should avoid using organizational events or other platforms for announcing individuals’ electioneering activities.

A 501(c)(3) organization may also wish to use disclaimers itself and to encourage associated individuals to do so, as well.  For example, when engaging in permissible nonpartisan election-related activities, the organization should consider including written disclaimers in any materials and oral disclaimers at any event stating that the organization itself cannot and does not endorse or oppose candidates for elective office.  Individuals associated with 501(c)(3) organizations should be requested to include disclaimers making clear that statements they make in their individual capacities in support of or in opposition to candidates for elective office are their own and do not reflect statements made on behalf of the organization.  And if the individual’s affiliation with the organization is included as part of any electioneering statement by that individual, it should be made clear that it is for identification purposes only and is not intended to reflect action on behalf of the organization.

Keep in mind that a 501(c)(3) organization cannot do something indirectly through its employees or volunteers that it could not do directly itself.  It also may not send internal messages or communications to its employees or volunteers, such as alerts as to which candidates are best aligned with the organization’s mission and should therefore be voted for, that it could not send more broadly.

For more information, see Alliance for Justice’s advocacy resource, Rules of the Game: A Guide to Election-Related Activities for 501(c)(3) Organizations.


Nonprofit Radio: Legal Issues Related to Volunteers

Volunteer Charity and Relief Work Donation Help Concept

I’ll be on Nonprofit Radio speaking with host Tony Martignetti this Friday at 10:30 am PT / 1:30 pm ET discussing volunteers and the legal issues nonprofits must consider when working with volunteers. You can tune in to the live feed on Talking Alternative or catch up later on iTunes.

We’ll be talking about:

  • Liability for acts of your volunteers
  • Protecting your organization
  • Protecting your volunteers


Risky Business: There’s liability for the acts of your volunteers | The Nonprofit Times (6/4/14)

Volunteers | National Council of Nonprofits

Managing Volunteers: Balancing Risk and Reward | Nonprofits’ Insurance Alliance of California & Alliance of Nonprofits for Insurance

Volunteers: A Primer on Possible Perils | For Purpose Law Group

Nonprofit Volunteers – Minimizing the Risks | Charity Lawyer Blog

Volunteer Protection Act of 1997 – An Imperfect Solution | Lisa Runquist

Employee or Volunteer: What’s the Difference? | Nonprofit Risk Management Center


Nonprofit Laws for Human Resources Managers to Be Aware Of

Human Resources

It may not be the responsibility of an HR manager in the nonprofit sector to be aware of all of the laws that apply to nonprofits.  However, there are some laws that have impact specifically on matters within the purview of the HR department that are worth being aware of.  Here, we will briefly discuss a few of the laws that might most frequently apply to the work of an HR manager at a Section 501(c)(3) public charity.

Prohibitions Against Private Inurement, Private Benefit, and Excess Benefit Transactions

Private Benefit Doctrine

To qualify as exempt under Internal Revenue Code (“IRC”) Section 501(c)(3), an organization must be operated for the benefit of the public and cannot serve a private interest—a requirement referred to as the private benefit doctrine.  The concern behind the doctrine is that, by providing more than an incidental private benefit to an individual or entity, the organization may not be operated primarily for an exempt purpose, as Section 501(c)(3) requires.

The private benefit doctrine does not entirely prohibit an organization from conferring benefits on individuals; rather, it requires that such benefits to individuals must be incidental, both quantitatively (i.e., the private benefit is not excessive in amount) and qualitatively (i.e., the private benefit is a mere byproduct of the public benefit), to furthering of the organization’s exempt purposes.  The doctrine is the broadest of the private benefit rules that apply to IRC Section 501(c)(3) organizations in that it covers any individual on whom the organization may confer a benefit and includes both monetary payments and other benefits.

Facts and circumstances that may raise a concern regarding the provision of a prohibited private benefit include entering into transactions or providing payments on unreasonable or unfavorable terms to the nonprofit; conferring benefits on private parties beyond what is necessary to further the nonprofit’s exempt purposes; establishing exclusive business dealings with a particular for-profit business; failing to consider alternative sources or comparable prices when purchasing goods or services; and serving too small of a class of beneficiaries.

Private Inurement

A 501(c)(3) exempt organization is similarly prohibited from allowing any part of its net earnings to inure to the benefit of any private shareholder or individual, a rule known as the private inurement doctrine.  The private inurement doctrine generally prohibits a nonprofit from using its assets to provide an unjust enrichment to a person having a personal and private interest in the organization’s activities.

The private inurement doctrine is narrower than the private benefit doctrine in that it applies only to insiders of the organization (i.e., a director, officer, or key employee or other person in a position to influence or control use of the organization’s assets), rather than any individual receiving an impermissible benefit.  However, the restriction on private inurement is absolute, meaning there is no such thing as incidental private inurement, and the penalty for an organization that engages in a private inurement transaction is much stiffer: the potential revocation of its exempt status.

The private inurement doctrine does not bar a nonprofit from entering into any and all transactions with insiders.  Rather, it requires the nonprofit to ensure that it is not providing such insiders with a disproportionate share of benefits based on what the organization is receiving in return.

From an HR perspective, concerns regarding the private benefit and private inurement doctrines are most likely to arise around issues involving compensation.  Some examples of situations in which private inurement violations may be found include:

  • Compensation arrangements with an insider that do not include an upper limit or cap;
  • Compensation arrangements based on factors extrinsic to performance at and benefit provided to the organization; and
  • Payment of more than fair market value for goods or services provided by an insider.

Nonprofits should also be careful when considering entering into transactions that, due to their complexity or uniqueness, may be more difficult to analyze for potential private inurement violations, such as:

  • Compensation arrangements that include considerations such as deferred compensation, bonuses, fringe benefits, or retirement or severance packages;
  • Arrangements that involve assigning rights to intellectual property developed by insiders and funded, in whole or in part, with organizational assets; or
  • Use of organizational assets to support, fund, or otherwise invest in an insider’s business.

Nonprofits may be able to help mitigate against the risk of providing a prohibited private benefit or entering into a transaction involving private inurement by having and using a well-drafted conflict of interest policy and obtaining the assistance of experienced counsel. (more…)


Popular Posts from 2013


Alliance for Community Media National Conference (Part One)



I have the great pleasure of speaking with Syvia Strobel (ACM) and Deborah Vinsel (Thurston Community Television) at the 2013 Alliance for Community Media National Conference on Wednesday, May 29. Our session description follows::

Nuts and Bolts of Nonprofits and Their People

Nonprofit organizations provide critical services, but often do so with limited resources and little time to assess legal risks and obligations. Nonprofit executive must balance their day with managing a board of directors and overseeing staff and volunteers. This workshop will provide an overview of key issues in people management, board governance, UBIT and other timely nonprofit issues. Come hear from seasoned professionals on best practices and areas of risk for our organization.

This post includes resources I’ll refer to during our session.

Key Issues in People Management

Independent Contractor vs. Employee: Don’t Want to Get This Wrong

Organizations must recognize how to tell whether a worker is an independent contractor or employee. And it’s not just a matter of how an organization chooses to classify the worker. There are federal and state laws that inform how a worker must be classified. See Independent Contractor (Self-Employed) or Employee? and IRS Publication 1779: Independent Contractor or Employee; and in California, Independent Contractor or Employee).

Too often I hear that an uninformed employer is hiring independent contractors instead of employees because it can’t afford employees. Yet, the hired workers are working full-time, indefinitely, and exclusively for the employer; they are managed on what must be done and how to do it; and they work without negotiated written contracts. In other words, they are legally employees, and the employer may be fined for failing to withhold employment taxes, breaching wage and hour laws (e.g., minimum wage, overtime, breaks), and failing to implement and/or enforce anti-discrimination and retaliation laws that may apply only to employees. In addition, the employer may find themselves unprotected by what might be very expensive workers’ compensation claims. See New Crackdown on Using Independent Contractors (and the Ten Consequences of Reclassifying Independent Contractors as Employees hyperlink within the article) by Robert W. Wood (Forbes).

Organizations that may have gotten the classification wrong in the past but want to correctly classify certain independent contractors as employees going forward may be eligible to do so through the IRS Voluntary Classification Settlement Program. Forbes provides a summary of the program in this article about the amnesty program available through June 30, 2013.


Exempt vs. Non-exempt Employee: Why is This Important?

Exempt employees are those exempt from overtime pay. Non-exempt employees must be paid overtime, subject to applicable federal and state laws. Again, it’s not up to the employer to classify a particular employee as exempt or non-exempt simply based on what the employer wants. There are federal and state laws that inform how an employee must be classified. See Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA).

See also Classifying Employees Correctly (National Council of Nonprofits)


Volunteer, Intern or Employee?

At first blush, it might seem simple to distinguish between a volunteer and an employee. But such distinction gets much more difficult to make when an organization pays a “stipend” to the volunteer. If the stipend is compensation for services, the paid individual may not be a volunteer and, if the payment is for regularly rendered services, may be an employee. Improper classification can raise many of the same issues described above for improperly classifying an employee as an independent contractor.

It is possible that the payment of a stipend to a volunteer may not convert the volunteer to an employee if the stipend is considered a reimbursement of certain types of expenses, a de minimis fringe benefit, or a nominal fee for service. Note that a Wage and Hour Opinion Letter (FLSA2006-28) expressed that the Department of Labor will presume that a fee paid to a volunteer is nominal as long as the fee does not exceed twenty percent of what an organization would otherwise pay to hire a full-time employee for the same services. However, organizations paying stipends to volunteers should confer with an employment/tax attorney for counsel regarding these issues.

A person receiving payment from a nonprofit may also fall under the classification of intern. Interns are also not employees and not subject to minimum wage and overtime laws under the FLSA if they meet the 6-factor test. See Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act and Legalities of Nonprofit Internships (Blue Avocado), which discusses the practical difficulties of meeting factor 4 (“The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded”). Under the FLSA, a person working in a part of the nonprofit that is considered a commercial (unrelated business) activity will not be recognized as a volunteer.


Additional Resources:

  • Nonprofit Interns (National Council of Nonprofits)
  • Volunteers and Interns (Law For Change)
  • Employee or Volunteer: What’s the Difference? (Nonprofit Risk Management Center) – includes a discussion of the issues created by having an employee also volunteer for his or her employer. Note that if the employee ever says he or she was coerced to volunteer (a possibly very significant risk if the employee is ever terminated or disgruntled), the organization may face serious legal troubles.

Also see Part Two and Part Three of this series of posts.


Can Nonprofits Terminate Employees for Their Social Media Posts?

Emily's article, "I Thought We Were Friends!" Can Nonprofits Terminate Employees for Their Social Media Posts? was published in the current issue of The Nonprofit Quarterly.  Here are some excerpts:

  • Terminations due to actions on social media sites, commonly referred to as “Facebook firings,” have been gaining widespread attention over the past year, including from the National Labor Relations Board (NLRB), the federal agency charged with enforcing the National Labor Relations Act (NLRA).
  • Section 7 of the NLRA is the provision generally implicated by Facebook firing cases, and states, in relevant part:  Employees shall have the right to self-organization … and to engage in other concerted activities for the purpose of ,,, mutual aid or protection ….
  • Nonprofit leaders are typically unaware that the NLRA applies to their organization.
  • Starting next year, the NLRB will require employers to post a copy of a notice advising employees of their NLRA rights and provide information pertaining to the enforcement of those rights. This new requirement may also be a sign that the NLRB will be increasingly unsympathetic to employer policies that fail to reference NLRA rights or provide a Section 7 disclaimer.




Hiring a Foreign National for your Non-Profit: A World of Possibilities

At first glance, the U.S. immigration system may seem too incomprehensible to an overworked non-profit executive or human resources professional to justify even considering the hiring of a foreign national for a position within his or her organization.  As with any other area of law, though, with the right legal advice, hiring a foreign national does not have to be daunting.  In fact, many non-profits can benefit from more favorable rules under the immigration regulations than those that apply to for-profit entities.

Here is a brief summary of some of the visa categories commonly utilized by non-profits to hire foreign nationals.

H-1B Visa for Professionals:  The H-1B visa can be used to hire professionals ranging from Program Managers to Web Programmers and any position in between that requires the attainment of at least a bachelor’s degree or higher.  The visa is valid for an initial three-year period, and is renewable for an additional three-years, for a total of six years.  The H-1B is frequently used to hire recent graduates of U.S. colleges and universities who studied in the U.S. pursuant to a student visa.

Many non-profits benefit greatly in the H-1B context, because certain non-profit organizations are not subject to the annual numerical cap that renders H-1B visas hard-to-obtain in the private sector.  Similarly, those same non-profits enjoy government filing fee reductions (i.e., a waiver of $750 to $1500 in fees, depending on the size of the organization.)  The organizations that can benefit from these perks include institutions of higher education, non-profit entities related to or affiliated with institutions of higher education, non-profit research organizations, and governmental research organizations.

My non-profit clients have used the H-1B visa to hire, among other occupations, teachers, composers, program directors, exhibits preparators, database programmers, and scientific researchers.  So long as a bachelor’s degree is required for the position, the possibilities are endless.

TN Visa for Professionals from Mexico and Canada:  The TN visa is a visa category limited to professionals from Mexico and Canada.  It is available for an initial period of three-years and is renewable indefinitely.

Although there are no special rules or exemptions for non-profits under the TN visa category, it is a very useful category for non-profits, because there are no numerical caps, meaning that the visa is available year-round.  It also carries much lower government filing fees than the H-1B visa, which can make a big difference to a non-profit entity with a limited budget.

TN visas are limited to certain enumerated professionals set forth in the NAFTA.  These professionals include, among others, social workers, medical and allied professionals, vocational counselors, university-level professors, management consultants, scientists, research assistants, and scientific technicians and technologists.

R-1 Visa for Religious Workers:  The R-1 visa program allows religious organizations to hire foreign-national ministers, as well as individuals working in a professional capacity in a religious vocation, such as cantors, liturgical workers, religious broadcasters, and members of the religious vocation, such as nuns and monks.  The initial visa validity period is three years (with a total period of stay of five years.)

Other visa categories of interest:  The O Visa can be used to hire individuals with “extraordinary ability” in the sciences, arts, or educational arenas.  The P-3 Visa can be used to bring artists and entertainers to the U.S. to perform, teach, or coach a culturally-unique program.  The L Visa can be utilized by trans-national non-profits to transfer executives and managers to the U.S. from abroad.  The I Visa is used by representatives of the foreign press.

– Ginger Jacobs

This week’s post is written by Ginger Jacobs, a San Diego-based immigration attorney.  You can reach Ginger at (619) 230-0012 or ginger@jsoslaw.com.


Pro Bono Partnership’s Employment Law Guide for Nonprofits

While searching for employment law resources with a nonprofit perspective, I discovered the site of the Pro Bono Partnership, a leading provider of free business legal services, educational workshops and other legal resources to nonprofits in Connecticut, New York, and New Jersey.  The site includes what appears to be a fairly comprehensive "Employment Law Guide for Non-Profit Organizations" which acknowledges a number of highly reputable big law firms for their contributions.  I must warn you that much of employment law is state-specific, but even if you’re not in the states addressed by the Guide, you may find some valuable information within on issues such as interviews, privacy issues, the employee-independent contractor distinction, federal wage and hour laws, harassment, discrimination, and ending the employment relationship.

You can access the Employment Law Guide for Non-Profit Organizations here.