A very interesting, and from an employment law perspective baffling, article was recently published in the Beer Advocate online magazine about the apparent common practice of craft brewers using volunteer labor. According to the article, some micro-breweries engage willing and enthusiastic volunteers to perform tasks such as packaging, canning, staffing events, cleaning kegs, or helping with other tasks. In other for-profit businesses, these tasks would be performed by paid labor. The article notes:
For those that offer up their time free of charge, the connection is seen as an exciting way to deepen a love for beer. It seems like a win-win for brewery and beer enthusiast, but as the pervasiveness of free labor continues, some are cautioning against the use of volunteers in brewing’s industrial process. It’s not just about doing what you love—even if it’s at no cost—thanks to a variety of potential legal and ethical issues that surround the practice.
Potential legal issues? Let’s be clear: engaging volunteers as workers in a for-profit business, even if they beg to work for beer, implicates real legal issues – serious and potentially expensive legal issues. No exceptions. Not even if the beer is really good.
The brewers may view these workers as volunteers, but virtually every state, and if it has jurisdiction, the federal government, will view them as employees, entitling them at the very least to a minimum wage, overtime (when applicable), workers compensation coverage and employee benefits (if they otherwise would qualify as an employee under an applicable plan).
In Minnesota, wages must be paid in U.S. legal tender (cash), bank checks, direct deposit or electronic fund transfer to an authorized payroll card account. There are exceptions (e.g., babysitters, seasonal camp workers, etc.). Beer production is not one of them. You can’t pay employees in beer.
At one brewery mentioned in the article, the founder admitted that his two year-old business has six full-time employees and a pool of almost 40 volunteers, 15 to 20 of whom volunteer their time regularly and eagerly). Volunteers are required to go through an interview process, orientation and training. Their compensation for a four to eight hour shift? Not legal tender, but clothing, lunch and “free” beer.
Although this is all well-intended as a fun way for amateurs to get involved in the production of something they love, build community, or maybe even get a hands-on introduction to a potential career, it’s still illegal – for now. Neither business owners nor workers have the discretion to decide who is an employee and who is not. The government decides and its decision is final; there is no craft brewery exception.
And, if you think that these volunteers are really good people and would never bring a wage an hour claim against their cherished brewery, think again. A keg falls on a someone’s foot, a “boil-over” burns a helper, or a forklift pins someone against a pallet of cans, and you have a workers comp claim for which you are now self-insured. Breweries can be dangerous places.
Or, a bad experience and one of your “volunteers” goes to a lawyer. Wage and hour claims are low-hanging fruit for experienced labor-side employment law attorneys, and they are a nightmare for businesses that stub their toes on wage and hour laws. Even wage and hour cases that settle quickly require the approval of the department of labor or a district court judge. Awards of double damages and attorneys’ fees are the norm.
Lesson learned: Hire your workers as part-time employees and hope they spend their wages on the fruits of their labor.