Thursday, January 24, 2019

Hey Fletch … Our church is processing what I learned at the workshop on Smart Money for Church Salaries. We are trying to come to grips with part-time employees not being able to volunteer in their areas of ministry. One of our pastors is blind and we hired a part-time assistant that helps with the parts of the job that are not possible due to the disability. This assistant also volunteers in many areas of the pastor’s department. The person is paid for 10 hours a week but probably is here 25 hours a week. The team asked me to check to make sure there were no considerations for the disability through the ADA.

DRF—There is an interesting item associated with the Americans with Disabilities Act that addresses a Workplace Personal Assistant (WPA), or also called Personal Assistance Services (PAS).

Here are three articles to consider. Disability Rights Ohio has an interesting article on this: “Community Integration: Personal Assistants and the Americans with Disabilities Act (ADA).” The U.S. Equal Employment Opportunity Commission has an article: “Questions and Answers: Federal Agencies’ Obligation to Provide Personal Assistance Services (PAS) under Section 501 of the Rehabilitation Act.” Barcus and Targett have an insightful piece, “Workplace Personal Assistant Services: Employers Perspective.” 

It is wonderful that your church has provided a Workplace Personal Assistant. From my understanding this is not required by law, so extra kudos to your church!

However, as I have reviewed the regulations, I don’t see any provision to not pay the WPA the full number of hours worked. A possible loophole to this would be to have a tightly defined job description as WPA for 10 hours per week. The person could then volunteer other hours per week.

Let me get some input from an HR professional on this issue. Tiffany Henning is the founder of HR | Ministry Solutions and is XPastor’s go-to expert on these kinds of issues.

Tiffany Henning—ADA would not affect the answer to this question as it is an employee versus volunteer issue. First, let’s look at some of the factors that are considered to differentiate between them:

  1. Is the activity less than a full-time occupation? Volunteers should generally be part time.
  2. Are the services offered freely and without pressure or coercion? Volunteers should generally not be required to work a specific schedule and should volunteer of their own free will. If they are scheduled to work on a specific day of the week, they can miss a day without any consequences. 
  3. Are the services of the kind typically associated with volunteer work? Volunteers generally cannot be involved in sales or other direct participation in commerce.
  4. Have regular employees been displaced to accommodate the volunteer? See below.
  5. Does the worker receive (or expect) any benefit from the entity to which it is providing services? Volunteers should have no expectation of pay or benefits.

Because of these factors, many churches and ministries do not allow their staff to volunteer in the same ministry that they are employed in. However, if an employer does wish to allow non-exempt employees to volunteer, it is important that it be for duties that are completely different than their own job duties and where there is no implied or stated requirement to do the volunteer work. Ideally, the organization should put in writing with the employee that the time is distinct from normal work and that it will not be compensated.

Ultimately, there is not a lot of case law in this area, but most issues arise when volunteers are working full-time and treated like employees. Non-profit organizations should review situations at their organization and decide how risk tolerant they wish to be.