Help Wanted: 'Volunteer' may be due pay

DEAR CARRIE: I work part-time at a small public library. Years ago, the library director had a problem with an employee who is the child of a worker at the library. Instead of dealing with potential personnel issues on a case-by-case basis, the director now refuses to consider hiring anyone related to an employee. Despite that, my son has volunteered for years at this library, working as a computer tutor, serving ice cream at children's parties and helping with craft programs, etc. He was even called to fix the projector when the staff had trouble with the machine during movie time. He is in the top of his class and works in his middle school library. In short, he would be an asset to the library. The young adult librarian in charge of hiring would love to have my son work for her and has gone to bat on his behalf, but the director refuses to budge. This unwritten policy seems grossly unfair. I am wondering if it is also illegal for him to essentially work without getting paid. The director willingly takes my son's free labor but will not even entertain the idea of putting him on the payroll. -- No Kin

DEAR NO KIN: Your son could very well be performing the work of an employee and be entitled to pay.

The Fair Labor Standards Act, which is workplace legislation, generally stipulates that if someone "is suffered or permitted to work, an employment relationship exists," said Richard Mormile, assistant director of the Long Island office of the U.S. Labor Department.

Even though the library calls him a volunteer, if he is doing actual work, he should be paid.

One of the key questions that gets at the employee vs. the volunteer issue is: Who benefits?

"Are they actually doing a function that is benefiting the employer?" Mormile asked. "The FLSA would say they have to be paid."

He said some supermarkets bring in kids as volunteers to bag groceries. But because the young people are benefiting the employers and may be taking work away from employees, the baggers likely aren't volunteers.

"That's really a function that is payable and a function that the employer is receiving a benefit from," Mormile said.

As for your son, Mormile said, "It's very possible that we have an employee-employer relationship here and [he's] due to be paid minimum wage and overtime requirements."

DEAR CARRIE: I work in a warehouse where only two people smoke, but they come into my area to do it. There are "No Smoking" signs around, but they are there for show. The owner won't enforce the no-smoking laws. The smokers feel that people have been doing it for 20 years, so why stop them now. Having been with the company for only four years, I feel my hands are tied. I suffer on a daily basis. What rights do I have as a nonsmoker? What can I do without losing my job? Every day I go home smelling like smoke. One of my co-workers smokes by the hallway door, and you have to walk through the smoke to exit. Please help. -- Smoked In

DEAR SMOKED IN: I asked Jeffrey Schlossberg, an employment attorney who represents companies, what he would advise.

"I would tell an employer that the local and state laws prohibit smoking in the workplace and that the company is subject to fines," said Schlossberg, an attorney at Ruskin Moscou Faltischek in Uniondale.

He said you could call the county Department of Health to file a complaint. You could actually save your company from fines, and thus be doing it a favor by making that call. But I doubt the owner will see it that way.

For more information on what constitutes hours worked:

Click here for www.dol.gov/whd/regs/compliance/whdfs22.pdf

Click here for more on New York State's smoking restrictions at www.nyhealth.gov/regulations/public_health_law/section/1399