An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

In the 2010 opinion letter, the DLSE stated that it has “historically followed federal interpretations” regarding trainees/interns in the absence of a state statute or regulation on this matter. Consequently, it is expected that the DLSE and California courts will adopt the “primary beneficiary” test. In the meantime, the safer practice is for schools to follow the more stringent guidelines in the 2010 DLSE opinion letter.

LCW Practice Advisor

C. V OLUNTEERS

1. C RITERIA F OR D ETERMINING V OLUNTEER S TATUS Volunteers are not covered by wage laws. A volunteer is a person who intends to volunteer his or her services for public service, religious, or humanitarian objectives without contemplation of pay. 496 A volunteer offers services freely and without coercion, direct or implied, from the employer. 497 The intent of the parties is the controlling factor in determining whether one is a volunteer or an employee. 498 2. V OLUNTEERS W HO A RE A LSO C URRENT E MPLOYEES Current non-exempt employees cannot volunteer to perform similar services for the school. However, an employee may donate services to the school as a volunteer if the services that are donated are not the usual services that the employee performs as part of his or her job. 499 Thus, for example, an administrative assistant may volunteer to work at a sporting event as an usher or in a box office selling tickets. 500 a. Parent Who Works And Volunteers At Child’s School The DOL will not assert an FLSA violation against a parent who volunteers at the school that the parent’s child attends when the parent volunteers in activities directly affecting the child’s education. Thus, a parent who works as an instructional aide for a school may also volunteer as an instructional aide in her child’s classroom as long as the volunteer work is done without expectation of compensation and without pressure or coercion. 501 However, since state law is unclear on this issue, the safer practice for a school is to always prohibit employees (even if they are also school parents) from volunteering to perform the same services that they are paid to perform for the school. b. Employees Of A Religious School Who Attend Religious Services Or Events For religious schools, it can be difficult to determine whether a person is attending religious services or events as a voluntary exercise of the person’s religious beliefs or as a condition of employment. A school employee may voluntarily attend religious services or provide volunteer services to a religious organization as part of the exercise of his or her religion. However, if the employee is required to attend the religious services as part of his or her employment, or is required to perform employment-related activities at the religious service, the employee may not be considered a volunteer. 502 Additionally, this exception only applies to religious services or

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