Chick-fil-A volunteers: Did restaurant violate labor laws by soliciting free help?

Hendersonville Chick-fil-A's attempt to recruit volunteers to work the fast-food restaurant’s express drive-thru has sparked questions of labor law violations.  

The local Chick-fil-A received national attention and intense backlash for a social media post asking for volunteers to work the restaurant’s new drive-thru express.  

The fast-food chicken restaurant, located at 52 Highlands Square Drive, promised entrees instead of monetary compensation. The post was later taken down after receiving a stream of negative comments. A spokesperson for Chick-fil-A said the program had been canceled and was not endorsed by the company.

State Labor Dept. provides insight

Jennifer Haigwood, Director of Communications and Policy Development for the North Carolina Department of Labor, has received multiple inquiries about the Hendersonville Chick-fil-A incident.  

“Fortunately, it appears that this program was limited to this location and has been canceled,” she said Thursday via email.  

Haigwood provided information explaining that for private, for-profit employers, the Fair Labor Standard Act's requirements are clear that there cannot be an employee who provides “volunteer" work for that for-profit employer.  

The Fair Labor Standards Act, which is enforced by the U.S. Department of Labor, is a federal law dating all the way back to 1938 that establishes minimum wage, overtime pay eligibility, recordkeeping, and child labor standards. 

FLSA regulations state that employees cannot volunteer services to for-profit, private employers. Public and nonprofit employees may volunteer their services, but the services they volunteer must not be part of their regular job duties, and often cannot be performed during their regular working hours. 

The U.S. Department of Labor has stated that "employees may not volunteer services to for-profit private sector employers. Generally, labelling a worker as a ‘volunteer’ will not remove the employer from its FLSA obligation to pay the required wages if that individual performs work that benefits the for-profit entity.” 

The Times-News submitted several questions pertaining to labor violations to the U.S. Department of Labor, and did not receive answers by press time July 29.  

Privately-held Chick-fil-A has been one of the most profitable fast-food restaurant chains in the country, with more than 2,600 restaurants across 47 states, D.C., Canada and Puerto Rico, according to the Washington Post. 

The national media outlet was one of many that covered the Hendersonville Chick-fil-A controversy, and included information from a 2020 report from Technomic, a consulting firm for the restaurant industry, that estimated that Chick-fil-A brought in about $11.3 billion in sales for 2019, trailing only McDonald’s and Starbucks among restaurant chains. 

The Hendersonville locations are franchised. Joel Benson is the restaurant owner for both Hendersonville Chick-fil-A locations, 640 Spartanburg Highway and 52 Highlands Square Drive.

Benson issued a statement on Facebook Thursday evening that now appears to have been deleted. According to a screenshot from Reddit, the local restaurant posted, "...After careful reviewing claims and other details brought to our attention, as you possibly have, we have decided to stop this program and not move forward any further. We are always looking for fun and creative ways to engage our raving fans, and positively impact our community, and team members. Unfortunately, this time we brought unnecessary negativity and misplaced regional/national attention to our town instead. I apologize for this and will continue to make all efforts to treat our guests with honor, dignity and respect. This idea was a little too creative and the consequences unintended." 

Haigwood explained that the NCDOL does not have any jurisdiction over or administer any laws related to volunteers, or situations where there isn’t an employer-employee relationship. Generally, the North Carolina Wages and Hour Act only applies to employers/employees and not volunteers.  

NCDOL refers the public to the U.S. Department of Labor for any employer that falls under the Fair Labor Standards Act, and not the NC Wage and Hour Act. 

“As a general rule, any private-sector employer who is covered by the FLSA is prohibited from allowing employees to volunteer services,” the Haigwood told the Times-News.  

Overall, the only time volunteer labor is allowed is when the organization is a certified non-profit, such as churches, community service organizations, charities, etc., which are 501(c)(3) organizations under IRS guidelines. 

Individuals may volunteer time to religious, charitable, civic, humanitarian, or similar non-profit organizations as a public service and not be covered by the FLSA. Individuals generally may not, however, volunteer in commercial activities run by a non-profit organization such as a gift shop. 

“A volunteer generally will not be considered an employee for FLSA purposes if the individual volunteers freely for public service, religious or humanitarian objectives, and without contemplation or receipt of compensation. Typically, such volunteers serve on a part-time basis and do not displace regular employed workers or perform work that would otherwise be performed by regular employees. In addition, paid employees of a non-profit organization cannot volunteer to provide the same type of services to their non-profit organization that they are employed to provide,” according to information from NCDOL. 

The FLSA regulations contain an exception for individuals who undertake volunteer activities for their own “personal, civic, charitable, humanitarian, religious, or public service reasons.” 

The North Carolina Department of Labor Wage & Hour Bureau handles complaints for unpaid wages, but an employer-employee relationship must exist. NCDOL notes that all Wage & Hour complaints are processed by telephone by an investigator with the N.C. Department of Labor.  

“However, any person employed in an enterprise covered by the Fair Labor Standards Act, including those enterprises engaged in the operation of a hospital, school or preschool, or residential care facility for the aged or physically or mentally infirmed, or an enterprise whose gross annual dollar volume is greater than $500,000, should contact the U.S. Department of Labor Wage and Hour Division,” according to NCDOL.