Race shutterstock_271417229Q. Our company would like to enter a team in a local 5K charity race to do some good for the community and provide some positive PR for the company. Do we have to pay employees for time spent in this activity?

A. With the summer season upon us lots of employers are thinking about civic engagement, whether it is entering a 5K, joining a charity golf tournament, or getting a group together to perform volunteer work. Some employers conduct these activities during the workday and pay employees for their time as the employer’s contribution to the community. Others, however, may want to encourage employees to participate in additional activities outside of the workday, perhaps by paying entry fees, providing team T-shirts, or making charitable donations in support of the event. If we’re talking about employees who are properly classified as exempt executive, administrative or professional employees, then no, employers don’t have to pay extra for this time. For non-exempt employees, the answer depends on the facts.

29 C.F.R. 785.44 says the following with respect to employees engaged in civic and charitable work:

Time spent in work for public or charitable purposes at the employer’s request, or under his direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee’s normal working hours is not hours worked.

So, to break it down: if employees voluntarily form a team for a local race or get together to volunteer at the food depository outside of working hours, you don’t have to pay them for their time. The company can even provide some support and sponsorship without running afoul of the law, again as long as the activity is completely voluntary and outside of working hours.

However, if the activity occurs during an employee’s normal workday, or if the employer goes beyond offering support to actually request or direct an employee to participate, it may cross the line from voluntary charitable activity to work.

For example, suppose that upon deciding that you want to enter your team in the 5K, you specifically ask one employee if she would head up the effort of recruiting and organizing a team. She agrees and does so. While the other employees running in the race may be volunteers, your team leader is arguably participating “at the employer’s request,” and should therefore be paid for her time.

Or suppose that after volunteers sign up for the race, you specifically ask one of the participating employees, who you know to be a photo enthusiast, to take photos of the event and an after party for the participants for use in on the company’s social media pages. The employee does as requested and spends additional time after the event editing the photos. Again, because the work is requested by the company, this may constitute work time for which the employee is to be paid.

So, how can employers avoid having charitable activities classified as work time?

  • Schedule charitable or civic activities outside of employees’ normal work hours.
  • Make it clear that participation is completely voluntary. Inviting participation is OK, but don’t single out individuals to ask them to participate, and don’t make participation a component in performance evaluations, compensation, or other employment decisions. Also make sure that your managers understand that what they see as a “request” might feel more like a directive to employees.
  • Avoid asking employees to perform tasks associated with a charitable event that are mainly for the benefit of the company, such as hosting an employee social event, engaging in promotional activities for the company, or taking photos or video. This doesn’t mean that you have to pay every employee who happens to share a selfie of the event on Facebook, but employees who put in more than de minimus work for the company’s benefit  should be paid for their time.
  • If the company does need someone to perform work related to an event, tap bona fide exempt employees for those tasks, or hire outside help.