Can an employer ask a worker to “volunteer” to work on weekends?
This concept is being tested by the affluent retailer Urban Outfitters, Inc., which asked salaried employees at the company’s Philadelphia corporate headquarters to “volunteer” to work six-hour shifts on weekends throughout October at the company’s new fulfillment center about 50 miles outside Philadelphia. Urban Outfitters operates under the Anthropologie, Bhldn, Free People, Terrain and Urban Outfitters brands. Somewhat ironically, the company announced in August that its total net sales had increased in the second quarter by 7% over the prior year to a record $867 million.
A memo leaked to Gawker states that “volunteers” will “work side by side with your [fulfillment center] colleagues to help pick, pack and ship orders for our wholesale and direct customers.” The memo continues: “In addition to servicing the needs of our customers, it’s a great way to experience our fulfillment operations first hand. Get your co-workers together for a team building activity!”
Salaried workers are exempt from the protection of the Fair Labor Standards Act of 1938, which established the 40-hour work week and regulates the payment of wages and overtime. They can be forced to work uncompensated overtime. But it’s a different thing to ask workers – even salaried workers – to volunteer. The FLSA prohibits for-profit employers from permitting any individual to “suffer or permit to” work without compensation. The definition of “volunteer” is to work without compensation. So it stands to reason that for-profit employers cannot ask any employee to “volunteer” to work.
The situation demonstrates the problems facing workers who are exempt from the FLSA – especially poorly paid white-collar workers.
Urban Outfitters’ CEO; Richard Hayne’s net worth is approximately $1.35 billion (according to the Forbes billionaires list) but many white-collar workers are not so lucky. They are barely paid enough to put food on the table. The FLSA’s “white collar” exemption applies to employees whose job duties primarily involve executive, administrative, or professional duties and who earn a salary of at least $455 per week or $23,660 a year. This poverty-level paycheck is particularly brutal for single parents (mainly women) who must schedule and pay for child care. And, let’s face it, an employer’s request for volunteers is inherently coercive. Only a courageous worker can pass up an opportunity to experience the fulfillment center “first hand” in a “team building activity”?
Last summer, the U.S. Department of Labor (DOL) announced a proposed rule to amend the FLSA “white-collar” exemption to eventually eliminate the exempt status of an estimated 21.4 million“white -collar”employees. The DOL’s proposed regulations dramatically increase the minimum salary threshold for exempt status workers to $970 per week or $50,440 per year. This represents the 40th percentile of earnings for all full-time salaried workers throughout the United States.
But for now, it appears that salaried workers at Urban Outfitters who don’t want to risk their jobs by refusing to “volunteer” will be spending their weekends packing overpriced clothing into cardboard boxes.
It should be noted the FLSA does permit individuals to volunteer in the non-profit sector for religious, charitable, civic or humanitarian organizations and to perform volunteer services for a state or local government agencies. Indeed, the U.S.Department of Justice has the gall to retain licensed attorney volunteers for up to a year at a time to work as unpaid prosecutors along-side Assistant U.S. Attorneys who earn a starting salary of more than $75,000. Instead of leading the nation, it seems the federal government, including the Office of Personnel Management, is intent upon perpetuating hiring practices that are sadly antiquated and even discriminatory .
