More thoughts on the Westover Winery case

…and the right to volunteer one’s labor (earlier), from frequent Overlawyered commenter Gitarcarver at his blog [Raised on Hoecakes]:

Volunteers serve in National Parks around the country without ever being paid for their labor.

Why does the government encourage people to labor without pay for some activities and not others? …

We think that volunteering is noble, rewarding and educational independent of whether the cause is “for profit” or not.

Our issue is not with volunteering.

The issue is what right does the government have in saying where a free citizen of this country can donate his or her time and efforts to?

If you have a friend who is starting a business and you want to help him succeed, why can’t you volunteer your time, efforts and expertise? If a neighbor wants to build and extension onto their offices and you donate a set of architectural or engineering plans because that is your area of expertise. what right does the government have to say “you can’t do that?” If you design web pages and do some work on a web page for a fellow parishioner at your church, what concern is that of the government? How many small businesses have “friends” who donate time to repair or maintain the business’ computers?

The bottom line is the application of the labor of a person is the individual’s choice – not the government’s.

P.S. Small though it was, Westover “produce[d] the greatest variety of ports in the United States,” reports Baylen Linnekin. More from Darleen Click at Protein Wisdom. And in our comments section a reader identifying himself as William Smyth, owner of Westover Winery, comments here.


  • I agree that the laws governing many activities are too voluminous and pose difficulties for businesses who want to comply, but aren’t up on every latest nuance. But it’s simply not a valid excuse for a business owner to not know that he has to pay the people who works for him, no matter whether he calls it volunteering or not.

    Common sense should tell any employer that there is an entire field called “labor law” with compliance with the minimum wage as a major subfield. Logic would dictate that if you plan to pay people to work for less than the minimum wage (i.e. for free), you just might want to do a little more research to see if your plan was legal. About 30 seconds with Google would direct you to this handy page from the DOL (it’s the first hit for “for profit volunteer” and “volunteer labor” among other queries). Failing that, a quick call to the state labor department’s handy toll-free number would turn up similar information (they are, at least in California, quite helpful). Reading that page (and the linked page about trainees) should send a pretty clear message that what you’re thinking about doing is probably not legal.

    We’re not talking about minor record-keeping violations like not providing perfect paystubs and we’re not talking about a thousand-page environmental regulation here. In those kinds of situations, I could completely buy your argument that the law is too hard for ordinary people to comply with. Here, however, we’re talking about an issue that raises some pretty obvious red flags, with short and easy-to-read guidance readily available from the government.

  • The Dept of Labor has a clear 2-page fact sheet regarding the 6 criteria that must be met for unpaid interns.

    Some of the winery’s volunteers were volunteer interns taking a class at the winery and doing hands-on learning (work). The DOL states “if the interns are engaged in the operations of the employer or are performing productive work (for example, filing, performing other clerical work, or assisting customers), then the fact that they may be receiving some benefits in the form of a new skill or improved work habits *will not exclude them* from the FLSA’s minimum wage and overtime requirements because the employer benefits from the interns’ work. ” (Emphasis is mine.)

    So pouring wine is assisting customers, and therefore is not exempt from minimum wage requirements.

    The insurance/liability issue is no small matter. Suppose one of these middle-aged professional volunteers hurt his back lifting a bucket of grapes to pour into the mixer. If the winery had no work comp insurance for that volunteer, the volunteer’s regular employer would cover the injury either via health insurance or work comp insurance, or the state would cover the injury via state health insurance.

    The health insurance company would want to know if the claim was due to an injury, and the employer’s work comp insurance would want to know where and how the injury occurred. If the employee lies and says he got injured at his regular job (and not the winery), the employer bears the cost of the injury. If the employee admits he was hurt at the winery, his health insurance may cover some/most of the costs, and his regular job may be impacted due to his absence or decreased skills from the injury. Either way another business which complies with labor laws will bear the cost for the business that doesn’t comply with labor laws.

  • All five or six of the criteria for interns was met by the winery but the labor department would not even consider them. They totally ignored them and the fact the winery did meet the criteria. Second, all the people who went through the class signed the document with the exact criteria required for interns, provided their own health insurance etc… so they would be covered in case of injury. Third we are talking about small business who cannot spend thousands of dollars to hire expensive lawyers so they can’t even get out of the gate sometimes. Fourth, this winery has a consultant who has set up hundreds of wineries and breweries as well as some attorney’s and they did not know of the law. You might say, they were not the best in the field but keep in mind most attorney politicians were not aware of the volunteer law until it was brought to their attention. You might say, “they should know.” but if it was that simple, why is this issue getting so much press and surprise nationwide.