May I volunteer for an individual?

Question

In the United States, specifically in Norwalk, Connecticut, where I live, may I volunteer for an individual, and may an individual use volunteers?

For example, may I volunteer as a personal chef for a celebrity, ie, cook them meals for free, and may they accept my services without compensating me?

My thoughts

I think the answer depends on whether I'm an independent contractor or an employee.

According to Nolo's Employee's Guide to Minimum Wage Rights and Laws, "independent contractors are not entitled to the minimum wage", but what if I'm an employee?

According to the US Department of Labor: elaws - Fair Labor Standards Act Advisor, "employees may not volunteer services to for-profit private sector employers", but what about to individual employers?

According to US Department of Labor: Fact Sheet #79: Private Homes and Domestic Service Employment Under the Fair Labor Standards Act, household employees "are covered by the FLSA".

So I guess the answer to my question is yes if I'm an independent contractor and generally no if I'm an employee.

Addendum 1

After reading ohwilleke's answer, I'd like to provide some more details.

I made up the example above, but here are two actual scenarios I'm considering:

1. Hiring a volunteer

   I post an ad to fairfield volunteers - craigslist asking for help decluttering my apartment, something I've been putting off for years.

   Independent contractor: If, eg, a professional organizer (who has other paying clients) offers to help me for free, then I think they'd be an independent contractor, so I don't think I'd have to pay them anything, since "independent contractors are not entitled to the minimum wage".

   Employee: If, eg, a college student (who isn't already a professional organizer, personal assistant, or the like) offers to help me for free, then I think they'd be an employee, and I think employees are generally entitled to the minimum wage.

2. Working as a volunteer

   I post an ad to fairfield volunteers - craigslist offering to help others for free. Some of the services I could provide are tutoring, moving, and consulting. Some of my motives for volunteering are to help myself, help others, make connections, and enjoy life.

Answer 1

In the United States, specifically in Norwalk, Connecticut, where I live, may I volunteer for an individual, and may an individual use volunteers?

For example, may I volunteer as a personal chef for a celebrity, ie, cook them meals for free, and may they accept my services without compensating me?

I think the answer depends on whether I'm an independent contractor or an employee.

The answer is not nearly as simple and straighforward as the employee v. independent contractor distinction suggested in the question.

People who work for free fit in a number of categories, some lawful and some not, even though the definition of employer under the Fair Labor Standards Act (FLSA) (regulations here) and parallel state legislation is facially very broad (people who suffer to let others work for them, more or less) and many of the exceptions are quite narrow.

The nature of the categories is a nice illustration of how much social context and nuance is buried in a seemingly straightforward black and white legal rule like the minimum wage. Any time there are common practices that a statute doesn't expressly contemplated that aren't routinely the subject to litigation, you should doubt whether the statute really applies to them (although often enough it does), and courts are more likely in these circumstances than most to devise a definitional oriented, or implied, or common law exception to encompass the common practices as being lawful.

The facts in the original question aren't rich enough in character to really determine which category applies, and those facts "smell fishy" as far as whether it would really fit in any legal category of unpaid work, in part, because the motives of the "volunteer" are very unclear.

The legal categories include:

• People work for free in furtherance of their own charitable intent (e.g., working for free at a United Way fundraiser).

• People working for free who have bona fide donative intent (painting a mural on your boyfriend's wall as a birthday present). This is one possible category that the original question seems to be considering as possibility. Note that donative intent doesn't preclude an expectation that there will be unspecified, not legally enforceable, reciprocity in the future, in the form of reciprocal generosity, or in the form of owing someone an ill defined "favor" that doesn't amount to a true quid pro quo barter transaction. You might have donative intent towards a celebrity because you are a fan, because you appreciate their work or contributions, and because you desire to be part of the inner circle of a celebrity or wish to become a friend of a celebrity and want to do so out of friendship, since the celebrity is an awesome person that it would be nice to have in your life. This category could also include cases of moral but not legal obligation, or cases of seeking to do penance to the person for whom you volunteer out of non-legally binding guilty or shame (as distinct from a threat that you will be embarrassed).

• Family members doing chores for each other out of a duty of care and support on the part of a parent or spouse, or a duty to obey a parent arising at common law, on the part of a child, and similar family obligations. Closely related is unpaid work as a fiduciary (e.g. an executor, power of attorney agent, or trustee) with a donative or family relationship motivation.

• Parties to contracts remedying damage that they have done for which they would otherwise have contractual responsibility (e.g. cleaning your own apartment, or an apartment upon which you guaranteed someone else's lease, before the tenant moves out, so you won't have deductions from your security deposit, or so you won't be sued for damages). Similarly, work incurred to protect or add value to your own property.

• People who work expecting to be paid and have a legal right to be paid who don't get paid after the fact due to the insolvency of the employer, or discharge of the debt in bankruptcy, or the expiration of a statute of limitations or claims deadline in a probate proceeding.

• People performing court ordered community service and inmates in prison pursuant to a conviction.

• Self-employed business people who don't make a profit, either personally, or in a capacity as an officer or director of an entity owned by the self-employed person. But, if this involved providing services for no compensation, without a more involved business with expenses as well as receipts, as an alleged independent contractor, for a single other person, this is probably a case where the law would find that someone is actually an employee and not an independent contractor, and where the contract is void for want of consideration. The form over substance analysis that holds that is employment subject to the minimum wage for purposes of the FLSA and state law seems like the most likely scenario in the original question, but the facts aren't detailed enough to tell definitively.

• Unpaid interns and students learning while doing something of value (generally permitted, but the analysis of the FLSA and state law is rather involved). This is another category that plausible could apply to the original question.

• People within other express FLSA exceptions that are also present in state law.

The illegal categories include:

• Slaves. These rare cases are usually prosecuted criminally intended to punish keeping slaves (often accompanied by human trafficking charges).

• Indentured servants (basically slaves for a term of years who aren't allowed to quit, often to someone who paid a major expense such as travel costs to a new country for you, in order to repay the debt). These rare cases are usually prosecuted criminally intended to punish this practice (often accompanied by human trafficking charges).

• Inmates in jails who have not yet been convicted of a crime, and who are awaiting trial, who are required to work without pay.

• People working for free due to duress or blackmail, not expressly authorized by law, and not merely the generalized economic duress of needing money to live (e.g. doing household chores for a bully because he threatened to beat you up if you don't). These cases, if they are litigated at all, are usually prosecuted criminally under extortion statutes. More generally, you are not a true "volunteer" if you work is in any meaningful sense involuntary, even if it does not support a provable case beyond a reasonable doubt of true criminal extortion.

• People in normal employment relationships who are paid for some work but required to do additional unpaid work as condition of employment. Most civil FLSA litigation involving completely unpaid work, involves this category of unpaid work.

I'm sure that there are other possibilities that I have not considered and listed, but generally, the legality of working for free is evaluated on a category by category basis. Situations where payment is predominantly in kind (e.g. room and board and clothing) can be complex to analyze and these arrangements are frequently subject to special rules.

The primary statutory minimum wage exemptions are as set forth in the exemptions provision of the FLSA:

§213. Exemptions

(a) Minimum wage and maximum hour requirements The provisions of sections 206 (except subsection (d) in the case of paragraph (1) of this subsection) and 207 of this title shall not apply with respect to—

(1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of subchapter II of chapter 5 of title 5, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities); or

(2) Repealed. Pub. L. 101–157, §3(c)(1), Nov. 17, 1989, 103 Stat. 939.

(3) any employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 331/3 per centum of its average receipts for the other six months of such year, except that the exemption from sections 206 and 207 of this title provided by this paragraph does not apply with respect to any employee of a private entity engaged in providing services or facilities (other than, in the case of the exemption from section 206 of this title, a private entity engaged in providing services and facilities directly related to skiing) in a national park or a national forest, or on land in the National Wildlife Refuge System, under a contract with the Secretary of the Interior or the Secretary of Agriculture; or

(4) Repealed. Pub. L. 101–157, §3(c)(1), Nov. 17, 1989, 103 Stat. 939.

(5) any employee employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee; or

(6) any employee employed in agriculture (A) if such employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor, (B) if such employee is the parent, spouse, child, or other member of his employer's immediate family, (C) if such employee (i) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) commutes daily from his permanent residence to the farm on which he is so employed, and (iii) has been employed in agriculture less than thirteen weeks during the preceding calendar year, (D) if such employee (other than an employee described in clause (C) of this subsection) (i) is sixteen years of age or under and is employed as a hand harvest laborer, is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) is employed on the same farm as his parent or person standing in the place of his parent, and (iii) is paid at the same piece rate as employees over age sixteen are paid on the same farm, or (E) if such employee is principally engaged in the range production of livestock; or

(7) any employee to the extent that such employee is exempted by regulations, order, or certificate of the Secretary issued under section 214 of this title; or

(8) any employee employed in connection with the publication of any weekly, semiweekly, or daily newspaper with a circulation of less than four thousand the major part of which circulation is within the county where published or counties contiguous thereto; or

(9) Repealed. Pub. L. 93–259, §23(a)(1), Apr. 8, 1974, 88 Stat. 69.

(10) any switchboard operator employed by an independently owned public telephone company which has not more than seven hundred and fifty stations; or

(11) Repealed. Pub. L. 93–259, §10(a), Apr. 8, 1974, 88 Stat. 63.

(12) any employee employed as a seaman on a vessel other than an American vessel; or

(13), (14) Repealed. Pub. L. 93–259, §§9(b)(1), 23(b)(1), Apr. 8, 1974, 88 Stat. 63, 69.

(15) any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary); or

(16) a criminal investigator who is paid availability pay under section 5545a of title 5;

(17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is—

(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;

(B) the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or

(D) a combination of duties described in subparagraphs (A), (B), and (C) the performance of which requires the same level of skills, and

who, in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour; or

(18) any employee who is a border patrol agent, as defined in section 5550(a) of title 5; or

(19) any employee employed to play baseball who is compensated pursuant to a contract that provides for a weekly salary for services performed during the league's championship season (but not spring training or the off season) at a rate that is not less than a weekly salary equal to the minimum wage under section 206(a) of this title for a workweek of 40 hours, irrespective of the number of hours the employee devotes to baseball related activities.