Building Superuser Programs That Succeed

Legal Considerations

When designing your program there is an important legal consideration to be mindful of – namely the line between a volunteer and an employee. Members are often trained to undertake a role, given a set of tasks that they are expected to perform, and rewarded in some way for being an engaged program member.

If you don’t follow some careful guidelines around how you approach these things then you could be in breach of the law.

There are a couple of things that come into play here:

  1. The fact that ‘employee’ is defined differently from country to country
  2. The nature of your incentives or rewards

The definition of volunteer is different in different countries. In the US it is grounded in the idea of service without contemplation of pay. The key here is that there is no expectation of reward and no receipt of reward for the work.

In the UK it is also important that:

  • the individual is free to voluntarily work (or not) as they wish
  • there must be no element of compulsion to their attending work, or the hours that they work

Note that the above definition applies to non-profit organizations only. In the US, work of any type for a for-profit organization is considered employment and must be paid. Unpaid internships are allowed, but the intern must not take the place of an employee.



The easiest way to avoid breaking the law is to reward people for prior behavior. Rather than soliciting people to perform tasks, reward those that performed those duties satisfactorily the year before. This means there is no further obligation to work, but members will be motivated to continue to perform in order to retain their position within the group.

Important questions to ask:

  • Are the tasks or services of the kind typically associated with volunteer work?
  • Have regular employees been displaced to accommodate these volunteers?
  • Does the worker receive (or expect) any benefit from your organization which are tied directly to the completion of services?

If you tie your rewards directly to the work performed you are treating members as employees, rather than volunteers. Provided the rewards are ‘gifts’ and aren’t implicitly promised, then that’s probably ok.





Payment

So what constitutes payment? Payment does not include:

  • Reimbursing the volunteer for the expenses they incurred when performing the volunteer work.
  • Honoraria (a payment given for professional services that are rendered nominally without charge).
  • Any personal satisfaction a volunteer may get from the work.
  • Access to products or services that are used in the commission of the work.
  • Special access to organizational resources or communication channels.
  • Virtual rewards such as badges or titles.
  • Gifts e.g. a coffee cup, t-shirt, admission to an event where the volunteer is representing the organization, one-off holiday gifts etc.

An important factor in determining whether rewards or gifts to a volunteer are a substitute for compensation is whether the amount of the fee varies as the particular individual spends more or less time engaged in the volunteer activities.





Risk Management Tips

    • Have a clear agreement in writing that the person is a volunteer and will not be paid
    • Limit the number of hours worked
    • Don’t have volunteers doing work that would normally be done by a paid employee
    • Make your rewards variable

Another consideration is the amount of control that you have over your volunteers. If they have the flexibility to do as much or as little work as they like (within the agreed scope), and the ability to do that at a time that suits them, then you’re unlikely to be overstepping the employee/volunteer mark. If you retain very tight control and tie rewards directly to the amount of service undertaken, you’re on unstable ground.

Alison Clements of UK law firm Lewis Silkin advises that a requirement for compulsory training will likely also represent a risk factor in the UK, as it detracts from the voluntary nature of the role. Ideally the role should either be unskilled (and therefore require no training) or the individual should already have the knowledge which they then use on a voluntary basis.

Ultimately you are more likely to encounter an issue if a member feels mistreated and lodges a grievance or claim of some description. Have clear, open communication, and agreed upon expectations.

IMPORTANT NOTE
This chapter does not constitute legal advice. Every case should be considered individually, with considerations made for the program structure, expectations placed on members, mutual understanding of the boundaries, and the law of the locale (country, state, province, etc.) in which the community and the volunteers are based. It is always best to consult a lawyer and have all documentation and processes cleared before you launch publicly.


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