Volunteers

This is a very good question, since the use of volunteers to supplement or replace work typically performed by union employees can most definitely be a violation of a collective bargaining agreement.

In one case[1] from 1981, a school district on an "austerity budget" used volunteers to set up (and then clean up) district facilities for student sports--a task typically performed by custodial workers under a collective bargaining agreement ("CBA").  An arbitrator found that the district's use of volunteers to perform the unionized workers' tasks violated the CBA, and the workers were owed pay for the work they should have had the opportunity to perform.[2]

That said, schools, libraries and not-for-profits with unions routinely use volunteers for all sorts of things; clearly, not all use of volunteers risks violation of a CBA.  So, my plain answer to this question is: "yes, if the library is careful."

The rest of this reply sets out what I mean by "careful."

First, any not-for-profit has to exercise caution when using volunteers, because (as the member's question points out) there can be concerns that some use of volunteers violates the labor law.

The NY Department of Labor has really good basic guidance on this at https://dol.ny.gov/system/files/documents/2021/03/p726.pdf

In relevant part, that guidance says:

Unpaid volunteers [at an NFP] may not:

• Replace or augment paid staff to do the work of paid staff

• Do anything but tasks traditionally reserved for volunteers

• Be required to work certain hours

• Be required to perform duties involuntarily

• Be under any contract to hire by any other person or business express or implied

• Be paid for their services (except reimbursement for expenses) 

Considering this guidance, when I work with libraries and other not-for-profit organizations who are considering using volunteers (no matter what the work for the volunteers will be, and whether or not there is a union), I advise that the organization have a volunteer policy. 

The volunteer policy should cover all the concerns raised in the bullets above, as well as address risk factors such as placement letters confirming the terms of volunteer service, safety, insurance, and when a library using volunteers will conduct background checks.

Second, when I work with libraries and other not-for-profit organizations who are considering using volunteers, who also have one or more unions representing their employees, I stress the need to work with the union(s) pro-actively to confirm that an activity performed under the volunteer policy is not regarded as replacing paid/union workers.

There are a number of ways to achieve this confirmation.

The most formal way would be accomplished through a broad exclusion clause in the union contract(s) so every program does not present an ad-hoc task (but that could be a hard thing to fight for at a negotiation).  A sample clause for that could be:

It is understood between the Parties that volunteer service performed per the Library's "Volunteer Policy" to enable events and programs that are not part of the Library's Plan of Service are not regarded as replacing or supplementing union members. 

However, if such a clause is not a part of the standing collective bargaining agreement, a simple exchange of emails, or a more formal signed memorandum addressing only one type of volunteer activity, can be used to confirm this understanding.

The goal in all cases is to have clarity about what service is being performed by the volunteers, and to be able to show an affirmative agreement that it is not negatively impacting the experience of the workers in the union (which risks assertions of breaching the contract).  Since the perception of "negative impact" (and breach) can vary from place to place, this is not an understanding to pursue after-the-fact nor without a solid understanding of the legalities and subtleties of the situation.[3]

Third, even if a union is amendable to it, I would caution a library against using volunteers for any service that is part of a library's Plan of Service, since that can undercut the data needed to support adequate state/local funding.  Volunteers can be invaluable assets, but a library should always be able to function as required by law without them.

Fourth, if all the other cautions and no-no's listed above check out, it is vital to have a very clear agreement with the collaborating organization outlining the nature of the service, and each parties' roles and responsibilities for it.  This ensures the risks and liabilities posed by offering any program to the public are properly balanced, and the library isn't taking risks for the actions of volunteers provided by another organization.  I know it sounds impolite, but when it comes to volunteer services from a third-party, a not-for-profit must look a gift horse in the mouth.[4]

In many ways, it's a new world out there.  For libraries seeking to innovate and work with other organizations to co-produce new programs, the above-listed cautions can set the stage for using volunteers without worrying about violating a union contract.

Thank you for a good question.

[1] (Onteora Cent. Sch. Dist. v Onteora Non-Teaching Empls. Asso., 79 AD2d 415 [3d Dept 1981])

[2] After the original decision cited in footnote 1, this case takes a lot of twists and turns through different rulings involving the education law and the authority of arbitrators.  But the takeaway for purposes of this answer is: "Yes, use of volunteers can violate a CBA."

[3] For this reason, whenever possible, an attorney who knows the volunteer policy, knows the details about the service to be performed, and knows the union contract, should be consulted in advance.

[4] Of course, libraries and other organizations can host volunteer services (have them on site, but not co-sponsor them) provided by other organizations (such as Literacy Volunteers) without having to worry about these issues quite as deeply.  "Hosting," rather than "collaborating" is a way to work with other organizations (and their volunteers) while not exposing a library to an assertion of violating the labor law, a CBA, or incurring unnecessary liability.

It is well established that a not-for-profit organization can benefit from volunteer labor.  This is true even when the labor brings the organization tangible benefits, like the money from a bake sale, or as in this case, a research fee. 

But when using volunteer services and charging a fee, a library (or any chartered not-for-profit) in New York must engage in a systematic analysis to ensure the arrangement is in step with numerous laws and regulations.  How can a library, museum, or archives do this? 

Follow the three-step process below.

STEP ONE

First, identify the services the institution would like to provide through volunteer labor. 

This is rather like writing a job description or hire letter.  An example based on the member’s scenario could look like this:

Research Volunteer

Under the general oversight of [paid position] in [department], the Research Volunteer performs specific research tasks related to personal requests by [institution] members and other users. These tasks are not to routine operations of [department], but benefit the public and [institution] by serving members and others in a way directly related to [institution]’s mission to [insert mission], as well as raising revenue in support of that mission. 

Your hours and participation as a Research Volunteer are voluntary, but we do ask that you work with [person] to coordinate your time; this will enable us to support your work, and keep things organized.  This work is a valuable service [institution] can only provide through the services of volunteers, and we thank you for your dedication and hard work!

The essential elements of this first step are:

• clarifying who is supervising/helping the volunteer;
• clarifying the tasks of the volunteer;
• specifying that the tasks are not routine duties of paid staff;
• confirming that the work is voluntary; and
• documenting that the work is directly related to the institution’s mission.

You’ll see why these are important in the Steps Two and Three!

STEP TWO

Next, check your organization’s founding laws, charter, founding documents[1], bylaws and plan of service (I call these “core rules”) for any terms that apply to the service you defined in Step One. 

Look at the laws and documents.  Is there something preventing the institution from charging a fee for this specific service?  Is there any cap on that fee?

This exercise will vary greatly from institution to institution, since many variables can impact what’s in the “core rules.”  Here are just a few examples:

A public library could never charge a member to borrow a book or to use the internet, because Education Law Section 262 requires that public libraries be free (to cardholders).

For a private library, its charter could contain an express rule that certain services must remain free—a restriction that might not be found in the law, but could be just as enforceable.  A similar condition could be in its bylaws, or a donation document.

And if an institution is a 501(c)(3), care must be taken to make sure the revenue generated by the service is “substantially related” to the institution’s not-for-profit mission, or the institution could risk having to pay “unrelated business income tax.”  The service should also be reviewed to ensure it is not an “excess benefit transaction” or a non-disregarded membership benefit.[2]  A mis-step on any one of these could have serious tax consequences.

When doing the “Step Two” analysis, it is ideal to confirm your conclusions with a lawyer.

STEP THREE

Once an institution uses Step Two to confirm it can charge for a service, it is time to return to your description from Step One and make it official, by putting the scope of work and details in a “Volunteer Letter.” 

Why so formal?  Because in recent years, the State of New York has cracked down on enforcement of quasi-volunteer, or just plain muddy, instances of volunteer labor at not-for-profit institutions.  This has even included examining perks and partial payments to volunteers!

Why is that?  While not-for-profit volunteering is unequivocally allowed, like anything, the system can be abused.  To avoid that, and to create clarity in these critical relationships, the New York Department of Labor has issued some pretty strict guidelines, such as:

Unpaid volunteers at not-for-profits may not:

• replace or augment paid staff to do the work of paid staff
• do anything but tasks traditionally reserved for volunteers
• be required to work certain hours
• be required to perform duties involuntarily
• be under any contract of hire by any other person or business express or implied
• be paid for their services, except for expense reimbursement

Sound familiar? This is where the work you did in Step One pays off!  By identifying the work as part of a “Volunteer Program,” clarifying that the service is offered through the hard work of volunteers (and never paid staff), and that there is no compensation to the volunteer, your documentation will be ready to show compliance in the event the Department of Labor audits your institution (which, from time to time, they do).

Final thoughts

Volunteers can be critical contributors to an organization.  If allowed by your organization’s core rules, a not-for-profit can absolutely benefit from the fruits of their labor.  By following the steps outlined above, and setting the relationship up carefully, a not-for-profit (and its volunteers) can reap great rewards.

The essential element of this is clear documentation.  A letter to every volunteer, stating their role, the rules of the position,[3] that it is not replacing or supplementing paid staff, and thanking them for their service, will position an organization to easily demonstrate compliance. 

A quick annual check with the institution’s insurance carrier, to make sure volunteers and their activities are covered by the institution’s insurance, is wise, too.

Thanks for a great question!