Number: 

DAO 202-311

• Section 1. Purpose
• Section 2. Voluntary Service
• Section 3. Service as an Employee Without Compensation (Gratuitous Service)
• Section 4. De Facto Employment and Void Actions
• Section 5. Cooperative Service and Activities
• Section 6. Exceptions
• Section 7. Effect on Other Orders

SECTION 1. PURPOSE.

.01 This Order sets forth laws, policies, guidelines, and procedures regarding voluntary and uncompensated services, and on services which may appear to be voluntary or gratuitous but which require compensation.

.02 This revision simplifies the Order, provides information on de facto employment and various volunteer programs, provides guidance on accepting services which do not involve an employer-employee relationship, sets policy on citizenship requirements for student volunteers, provides for written agreements or letters of understanding for Guest Workers and Research Associates, and expands guidance on host-enrollee programs in which the Department of Commerce ("the Department") may participate.

SECTION 2. VOLUNTARY SERVICE.

.01 Definition. Except as it applies to specific programs mentioned in this Order, "voluntary service" is service provided by any person on their own initiative without a formal request from the United States Government through an authorized appointing officer.

.02 Restrictions.

a. By statute, "an officer or employee of the United States Government . . . may not accept voluntary services . . . exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property" (31 U.S.C. 1342).

b. Opinions of the Attorney General and decisions of the Comptroller General interpret the statute, 31 U.S.C. 1342, to mean that a Federal official may not accept service which could become a basis for a future claim for compensation. An individual who provides service in the kinds of emergency cases mentioned in subparagraph .02a. above, however, may file a claim for compensation for the service and may be paid for the reasonable value of that service.

c. Service performed by an individual on a voluntary basis may not be used to displace or replace any employee in the agency's work force.

.03 Student Volunteers.

a. The Civil Service Reform Act authorizes agencies to accept volunteer service from students under certain conditions. (See 5 U.S.C. 3111). Chapter 308, Subchapter 7, of the Federal Personnel Manual (FPM) provides detailed guidance on such volunteer service.

b. Minimum age.

1. The Office of Personnel Management (OPM) requires the selection of student volunteers to conform with Federal, State, and local laws and standards regarding the employment of minors.

2. The Department's policy is that in general, volunteers should be at least age 16 or in the tenth grade or at an equivalent level of schooling. In situations deemed appropriate by a servicing personnel officer, students younger than 16 or at a level of schooling below the tenth grade or equivalent may serve. Under no circumstances, however, may a student younger than 14 serve, regardless of grade in school, without prior approval of the Department's Director for Human Resources Management. Students who are between grades, as for example, during the summer, are considered to be in the grade or class in which they will next be enrolled.

c. Written agreements. Department policy requires a written agreement between the operating unit, the educational institution of each student volunteer, and the student. The agreement must identify agency and school responsibilities and the conditions or limitations under which the student will serve. Operating units may establish agreements appropriate to their needs as long as the requirements of law and Department policy are met. A sample agreement is attached as Exhibit 1 to this Order.

d. Citizenship. Noncitizens should not serve as student volunteers. Servicing personnel officers may make exceptions when they determine it is in the best interest of the Department to do so. Exceptions must be in harmony with the annual appropriations bill, which in effect restricts the employment of noncitizens to those of certain nations. If an agency may not hire citizens of a particular country, citizens of that country may not serve as student volunteers. Questions about the status of any country should be directed to the Departmental Office of Human Resources Management. Any noncitizen volunteer must meet the same security and suitability requirements that apply to noncitizen hires.

e. The establishment of an Official Personnel Folder is required for each student volunteer, but service is not creditable for leave accrual or for any other employee benefit. Volunteer service is creditable, however, for meeting qualifications requirements for future Federal employment.

f. Student volunteers are covered by injury compensation and tort claims laws.

.04 Volunteers in the National Oceanic and Atmospheric Administration (NOAA). Under 16 U.S.C. 742f, NOAA may recruit, train, and accept the services of volunteer workers for or in aid of programs related to fish and wildlife programs or activities.

SECTION 3. SERVICE AS AN EMPLOYEE WITHOUT COMPENSATION (GRATUITOUS SERVICE).

.01 By law, certain kinds of service may be performed on a gratuitous basis. Unless specifically exempt by statute, however, the following conditions must be met. Otherwise, the service constitutes voluntary service and is prohibited. (See 5 U.S.C. 2105 and 3101; 30 Op. Atty. Gen. 51; 27 Comp. Dec. 131; 27 Com. Gen. 194; 7 Comp. Gen. 810.):

a. The service must be performed in response to a formal request from an authorized official;

b. It must be performed under a regular appointment. An example is the appointment of personal assistants for handicapped employees under 5 U.S.C. 3102 (b) (1);

c. It must be performed without pay by individuals who agree in advance and in writing that they waive all claims against the Government because of such service. (A model waiver of compensation is attached as Exhibit 2 to this Order.);

d. It must be performed in an employer-employee relationship;

e. The position and the relationship must be established under law;

f. The operating unit must have special interest in the qualifications of the appointee; and

g. The service must be performed on a part-time or intermittent basis not involving a substantial amount of time; or on a full-time basis for a limited period (e.g., a few weeks).

.02 If compensation for a position is set by or in accordance with statute, an employee occupying the position may not waive that compensation unless an exception is provided for by some other statute (see 26 Comp. Gen. 956; 32 id. 236). Positions for which compensation is set by or in accordance with statute include:

a. Executive Schedule positions (5 U.S.C. 5311-5317);

b. Senior Executive Service positions (5 U.S.C. 5381-5385);

c. General Schedule positions (5 U.S.C. 5331-5338);

d. Prevailing rate positions, including those of officers and members of crews of vessels (5 U.S.C. 5341-5348);

e. Positions under the Performance Management and Recognition System (5 U.S.C. 5401-5405);

f. Administrative Law Judge positions (5 U.S.C. 5372);

g. Positions covered by 5 U.S.C. 5376, which include senior-level positions established under 5 U.S.C. 5108 and classified above GS-15, and scientific and professional positions established under 5 U.S.C. 3104; and

h. "Critical positions" under 5 U.S.C. 5377. These are defined as positions requiring expertise of an extremely high level in a scientific, technical, professional, or administrative field and which are critical to the agency's successful accomplishment of an important mission.

.03 Even where the compensation for a position is set by or through statute, the employee occupying the position may waive the right to be paid if there is some provision of law specifically authorizing the acceptance of the service without compensation (27 Comp. Gen. 194). For example, Section 710(b) of the Defense Production Act of 1950, as amended (50 U.S.C. App. 2160), permits the Secretary of Commerce to appoint certain experts and consultants without compensation (see DAO 202-304, paragraph 3.03 and Appendix A). Appointments under such authorities are not subject to the restrictions in paragraph .01 above.

.04 If compensation for a position is not set by or according to statute, the employee occupying the position may waive their right to pay for the service performed. Positions in this category include:

a. Experts and consultants appointed under 5 U.S.C. 3109;

b. Employees of the Bureau of the Census appointed under 13 U.S.C. Sections 23 and 24, including temporary employees, enumerators, other Federal employees, Special Sworn Employees, and members of the uniformed services; and

c. Positions for which rates of pay are set through administrative action.

.05 In the absence of statutory or other exemptions, individuals providing service without compensation are subject to the same legal requirements as other employees who receive pay, e.g., the conflict of interest laws, political activity restrictions, and similar limitations.

SECTION 4. DE FACTO EMPLOYMENT AND VOID ACTIONS.

.01 De facto employment. De facto employment is the service of an individual who was improperly or never actually appointed when an appointment was intended. De facto employment does not constitute voluntary service within the meaning of the statute, but treatment of the subject is included in this Order because it is often confused with voluntary or unpaid service.

a. Individuals serving before appointment. Individuals serving in a de facto status before they are officially appointed are to be compensated for the reasonable value of their services during that period, established at the rate of basic pay set for the position to which they are ultimately appointed (see 57 Comp. Gen. 406). The appointment, however, cannot be made effective retroactively to cover the period of de facto service (see 8 Comp. Gen. 582 and 24 Comp. Gen. 150).

b. Individuals never appointed. Individuals who in fact are never appointed but who perform service under the assumption they have been legally appointed are to be compensated for the reasonable value of their service. The compensation should be at the rate of basic pay for the position that is ultimately filled. If no position is filled, the personnel officer must determine the reasonable value of the service performed and see that the individual is paid accordingly.

c. Premium pay. The rule that a de facto employee is entitled to compensation for the reasonable value of the service performed does not limit the employee to basic pay only. Rather, the reasonable value of the service includes premium pay, including holiday pay, which the incumbent of the position would normally receive.

d. Compensation for de facto employment is handled by submitting a manual payment request through regular payroll channels. Use of the imprest fund is not appropriate for de facto employment payments.

e. De facto service is not creditable for purposes of leave accrual, retirement system coverage, or determining an individual's service computation date.

.02 Void actions.

a. Some personnel actions must be voided because they never should have occurred. An example is the appointment of a noncitizen to a competitive service position, which is prohibited by statute. If an appointment is a violation of statute, such as in the example given, or involves an individual who commits fraud or misrepresentation with respect to the appointment, then the individual is not entitled to keep the compensation already received. If neither of the above is the case, and the appointment is a violation of a regulatory requirement (such as a failure to meet qualification standards), the individual is considered to be a de facto employee and may keep pay already received.

b. When compensation must be recovered in a void action, the servicing personnel office submits a request to its payroll office for a bill of collection to be sent to the individual. The payroll office then follows through on the collection.

c. When questions about possible void actions cannot be resolved by an operating unit, they should be referred to the Departmental Office of Human Resources Management for resolution.

SECTION 5. COOPERATIVE SERVICE AND ACTIVITIES.

.01 Service to the United States Government Without an Employment Relationship.

a. An individual may provide service to the Government without compensation if the service is provided without the establishment of an employer-employee relationship (see 5 U.S.C. 2105) and is otherwise lawful (e.g., does not constitute prohibited voluntary service). The individual providing the service does not receive an appointment as an employee of the United States Government. Examples of such service include the following:

1. Consulting with or furnishing advice to the Government;

2. Furnishing testimony as a witness in an administrative proceeding;

3. Conferring with Government officials in preemployment interviews;

4. Performing travel as a college faculty member for consultation on the recruitment of college students;

5. Serving as a member of a trade mission sponsored by the Department;

6. Participating as a private person in a joint or cooperative activity in which the Government has an official interest (such as Observers for the National Weather Service); and

7. Providing other service of benefit or interest to the Federal Government, as approved by the General Accounting Office.

b. Only an appointing or procurement officer may authorize a request, agreement, or contract for service to the Department of the kind described in Subparagraph a. above. The arrangement should be confirmed in writing, and the individual should sign a waiver of compensation. The model form attached as Exhibit 2 to this Order may be used for this purpose.

.02 Guest Workers and Research Associates.

a. Legal basis.

1. The heads of Departments may prescribe rules and regulations under which their facilities may be made available for study and research to scientific investigators and to duly qualified individuals or students (see Act of March 3, 1901).

2. Heads of Departments have authority, even in the absence of specific statutory provision, to grant a private individual, business, or organization a revocable license to use Government property provided that its use does not injure the property and serves some purpose that is beneficial to the Government itself. The license is subject to termination at any time at the will of the Department (see 47 Comp. Gen. 387 and decisions cited).

b. Administrative policy and procedure.

1. Heads of operating units are delegated authority to allow the use of facilities of the Department by scientific and other qualified outside individuals and entities (see DAO 217-19).

2. In general, persons using Department facilities to pursue personal interests are identified as "Guest Workers," and persons conducting research at the request of other agencies, businesses, or organizations are identified as "Research Associates."

Appropriate deviations from these titles may be made when necessary. For example, individuals conducting research at the National Institute of Standards and Technology may be identified by such titles as "Visiting Scientist," "Guest Researcher," or "Guest Scientist." In this Order the terms "Guest Worker" and "Research Associate" include individuals whose titles are variations such as these.

3. Guest Workers and Research Associates must engage in activities which are of special interest to themselves or their employers but which do not, in any case, constitute the performance of a function of the Department.

(a) Work performed in such activities thus must not be service to the Government and will not constitute voluntary or gratuitous service within the meaning of this Order.

(b) Officials who make Department facilities available for study or research must take special care to assure clear understanding by Guest Workers and Research Associates, Government personnel, and the public that Guest Workers and Research Associates are not Government employees but are merely using Government facilities.

4. Guest Workers and Research Associates are not subject to formal appointment requirements and procedures applicable to employees of the Government but must meet the security clearance requirements set forth in the Personnel Security Manual authorized by DAO 207-1, "Security Programs."

5. All Guest Workers and Research Associates must be covered by a written agreement or letter of understanding. For Guest Workers, Form CD-428, "Guest Worker Agreement" (see Exhibit 3 to this Order), is the agreement form to be used. This form sets forth information which, as a minimum, must be included in any letter of understanding with Research Associates.

.03 Enrollees of Federal Grant Programs.

a. Chapter 309 of the FPM provides information on the authorized role of Federal agencies in serving as hosts for enrollees of various programs established under Federal legislation to assist low income, unemployed, or underemployed persons gain work experience and training. The specific programs for which Federal participation is authorized are identified in the FPM Chapter.

b. Enrollees hosted by a Federal agency are not considered to be Federal employees. Enrollees of some programs, however, are treated as Federal employees for purposes of injury compensation and tort claims. See FPM Chapter 309 for guidance.

c. In general, a Departmental office or operating unit may host a participant of a program with a different name than that found in FPM Chapter 309 if funding for the particular program stems from a program named in that Chapter. A variety of State programs, for example, are funded through the Job Training Partnership Act. No commitment to accept an enrollee of any program can be made until the sponsoring organization's particular program is determined to be eligible for Federal participation.

d. Chapter 306 of the FPM covers host-enrollee programs for persons with disabilities.

e. Each Departmental office and operating unit must maintain appropriate administrative control and current information on each enrollee it hosts, including the following:

1. A copy of a written agreement or letter of understanding between the operating unit and the organization sponsoring the individual;

2. A description of the work to be performed or the training to be provided, including procedures and supervision;

3. Hours of duty;

4. Pay to be received from the sponsoring organization; and

5. Time and attendance data.

.04 Individuals Working on Projects of Mutual Interest. The Secretary of Commerce is authorized by statute to engage in joint projects of mutual interest in collaboration with nonprofit, research, or public organizations or agencies (15 U.S.C. 1525). Unpaid volunteers from the co-sponsoring organization (i.e., the organization or agency other than the Department) might work with Commerce employees on the projects. Before being undertaken, projects of this type should be reviewed by the appropriate personnel office, and as necessary, by the Assistant General Counsel for Administration.

SECTION 6. EXCEPTIONS.

Within the limits of law and OPM regulation, exceptions from the Department's policy may be granted by the Director for Human Resources Management. A request for an exception must be in, writing and should state how the interests of the public and of the Department will be served by the exception.

SECTION 7. EFFECT ON OTHER ORDERS.

This Order supersedes Department Administrative Order 202-311, dated February 15, 1983. Signed by: Director for Human Resources Management

Approved by: Chief Financial Officer and Assistant Secretary for Administration

Office of Primary Interest: Office of Human Resources Management

Index changes:

Add: De facto employment 202-311

Void actions 202-311

EXHIBIT 1 DAO 202-311

U.S. DEPARTMENT OF COMMERCE

Student Volunteer Service Agreement

The Civil Service Reform Act of 1978 authorizes Federal departments and agencies to accept volunteer service from certain students. The Department of Commerce requires that terms of the volunteer service be agreed upon in writing by appropriate officials of the participating operating unit of the Department and the participating educational institution and by the student.

* * * * *
This agreement is between the (name of operating unit), hereinafter called the agency, and the (name of educational institution) , hereinafter called the school.

Name of student volunteer: _________________________

Expected period of volunteer service: (Beginning date) to (Ending date)

Terms of the agreement:

1. The student is enrolled at least half time at an accredited school, is recommended by the school, and is acceptable to the agency.

2. The student is nominated and selected without regard to considerations of race, color, national origin, religion, sex, marital status, handicapping condition, or any other nonmerit factor.

3. The student's service is to be uncompensated and will not be used to displace any employee or to staff a position which is a normal part of the agency's work force.

4. The school will notify the agency contact, (name of individual, address, telephone number, etc.) if the student terminates his/her enrollment at the school during the period of volunteer service or if the student will have more than five months between school years.

5. The student's work assignment shall be in the public interest and to the maximum extent possible, shall provide an appropriate educational experience for the student.

6. The student is not considered to be a Federal employee for any purposes other than injury compensation and laws related to the Tort Claims Act.

7. The student does not earn annual or sick leave and is not entitled to retirement, health benefits, travel compensation, subsistence allowance, quarters, and any other reimbursement or payment in kind.

8. Nature of the volunteer assignment: (Describe the work assignment, supervision to be provided, how attendance and performance records will be maintained, the requirement for the student to observe appropriate standards of conduct, etc.)

9. The agency will establish an Official Personnel Folder for the student and will include Notifications of Personnel Action and other documentation of the work assignment as specified by the U.S. Office of Personnel Management. (See the Federal Personnel Manual, Chapter 308, Subchapter 8-6).

10. The agency will provide evaluations or reports of the student's performance to the school as requested, subject to regulations governing (a) the protection of privacy in personnel records, and (b) the availability and disclosure of official information.

11. The school or the agency may terminate the agreement prior to the planned ending date of the volunteer assignment upon written notice to the other party.

__________________________________ _________________

Signature of Agency Official Date

__________________________________

Title

__________________________________

Name of Operating Unit

____________________________________ _______________

Signature of School Official Date

____________________________________

Title

____________________________________

Name of School

As a student volunteer, I agree that:

- I waive any and all claims for compensation from the Government of the United States for any service performed;

- I accept accountability for loss or damage to Government property caused by my negligence or willful action;

- My activities on the premises will at all times conform to the standards of conduct of the appointing office in which I shall work.

______________________________ _____________

Signature of Student Volunteer Date

EXHIBIT 2 DAO 202-311
U.S. DEPARTMENT OF COMMERCE

Waiver of Compensation

In consideration of the acceptance of my offer to serve as (title and description of work, e.g., "consultant" on organization and management of the Department), I hereby affirm that I will not expect nor demand any compensation for my service.

____________________________

Signature

____________________________

Date

_________________________

Witness

Exhibit 3: Guest Worker Agreement, Form CD-428 (pdf)