free archaeology: ensuring that your workers don’t get minimum wage – not-necessarily-illegal unpaid voluntary work

Intern Aware judge that ‘many internships in the charity sector do not abide by the specifications that state volunteers should be free to choose their working hours and tasks and [should] not report to a boss and receive training like workers’ (and No Pay? No Way! agree). No Pay? No Way! believe that ‘charities use a loophole in the law that enables them to avoid paying interns through calling them “voluntary workers”‘; but I’m not even sure that the loophole exists.

Charity internships: exploiting many, disadvantaging many more

Volunteering – the donation of time and energy to worthy causes – is a beautiful thing. Yet, as with my previous examples of unpaid heritage workers, many positions of ‘unpaid voluntary work‘ are long-term, part-time (or even full-time) jobs, which may (and only may) be legal because the (non-)employer is a registered charity.

And as Sarah Kendzior (@sarahkendzior) highlighted with the zombie UN human rights intern charity auction (which the UN believes it has killed but its staff insist is still alive), all “unpaid” internships are really paid-for or bought internships, which not only exploit the interns, disadvantage the non-interns and weaken the charities’ work, ‘but also restructur[e] the market itself’.

Voluntary workers must not get anything in return for their labour

The law’s immediately problematic, because it says that training counts as a benefit (which therefore shows that the person is a “real” worker who must be paid), unless it directly ‘improv[es] the worker’s ability to perform the work’ (which an unscrupulous employer could claim about almost anything). But it does show that the exemption from paying minimum wage to voluntary workers is not a simple exemption for voluntary organisations from paying minimum wage to any of their workers.

Even a charity cannot simply say that its workers are voluntary workers and not pay them. Legally-unpaid volunteers are people who perform minor, irregular tasks for charities, which are not essential to the functioning of those charities; and voluntary workers are people who perform major, regular/long-term roles within charities, which are essential to the functioning of those charities, but who do not benefit in any way, whether through material payment (in cash, goods, accommodation, etc.) or through developmental reward (in training or work experience).

For example, legally-unpaid volunteers might advocate for the charity and its constituents, or raise money through activities and events, but they would not be responsible to the charity. Legally-unpaid voluntary workers might provide a service to the charity, but they would not benefit from their contribution; they might be skilled workers who contributed their knowledge (e.g. accountants), or experienced workers who contributed their labour (e.g. retirees).

Interns are workers

Under no circumstances would voluntary workers be either unskilled or inexperienced, because then they would benefit from their contribution, and therefore they would be workers. As No Pay? No Way! observes,

An intern is: someone who works regularly within the offices of a charity/NGO with the ultimate goal of gaining paid employment, and who carries out work that would otherwise have to be done by a paid member of staff.

Volunteering England defines voluntary workers simply as ‘unpaid worker[s]… employed by charities, voluntary organisations’, etc., who ‘receive no monetary payments of any description’ and ‘no benefits in kind of any description‘. It states that an intern can be a paid worker, a voluntary worker ‘expressly exempt in the legislation and not eligible for the NMW‘ or a volunteer who is ‘[n]ot a worker and therefore not eligible for the NMW’; and it reminds its members that ‘volunteers should complement and supplement the work of paid staff. They should not displace paid staff or undercut their pay and conditions of service.’

Yet Volunteering England describes internships as ‘time-limited work placement[s] that [allow] a person to gain on-the-job experience’, which ‘provide training and skills development for those new to a particular role or industry’.

So, by definition, internships provide benefits in kind. Interns at registered charities and voluntary organisations are still workers and ought to be paid at least the national minimum wage.

National Minimum Wage exemption for voluntary workers

Fearing that you will receive the minimum wage

According to the UK Department for Business, Innovation and Skills (BIS), the voluntary workers’ exemption is ‘designed to allow people who genuinely wish to work without profit for good causes to continue to do so without fear of qualifying for the NMW’. Who would fear qualifying for the national minimum wage? It’s possible that a taxable income might complicate a person’s financial planning; but it would be automatically-deducted, pay-as-you-earn (PAYE) tax, so it wouldn’t be a bureaucratic nightmare for the worker.

And, if someone genuinely didn’t want a wage for their work (but if, in some dystopian future, they were forced to accept it by the Department for Work and Pensions or Her Majesty’s Revenue and Customs), they could simply donate their entire wage to the charity (including their income tax in the form of gift aid).

Ensuring that someone else will not receive the minimum wage

If no-one is fighting not-to-receive a wage, someone is fighting not-to-provide one. Some interpretations of the minimum wage exemption are not simply inexplicable, but actually offensive (in both senses). The Business and Transport Section of the House of Commons’ Library made clear to parliament,

Although the fact that individuals are voluntary workers is not always known, the distinction is particularly relevant when you are considering whether the individuals that you engage may qualify for the NMW, or in the event of a dispute over eligibility for the NMW.

Who would dispute their eligibility for the national minimum wage with an employer from whom they didn’t want any wage in the first place? It’s already clear that there could be practically no dispute in which an employer tried to press money into the hand of a genuine volunteer. A dispute is only realistically possible in the event of a worker demanding payment for their labour.

Seemingly, some people tell the charities that they are workers who deserve wages, but the charities tell them that they are volunteers who deserve nothing. Seemingly, some people use the exemption not to protect genuine volunteers, but to protect exploitative employers:

In these circumstances, if a ‘volunteer’ turned out to be a worker, the voluntary worker exemption would act as a safety net as long as the conditions were met, ensuring that the individual still did not qualify for the NMW.

It sounds as if, according to some actors within the state, as long as the charities don’t pay their workers anything, the charities don’t owe their workers anything, regardless of what they do. And the previous government had already concluded that charities’ exemption from paying the national minimum wage to ‘voluntary workers’ was ‘working as intended‘; so this appears to be a cross-party effort of (a powerful part of) the political class.

[Originally posted on conflict antiquities]