During the course of any given week, I encounter numerous volunteers at the Town programs in which my two sons participate. Sometimes, work schedule permitting, I am even one of those volunteers. Given current budget constraints, volunteers are needed to keep some municipal programs operating. As with private employers, however, sometimes a “public” volunteer is really an employee. Towns and Villages need to be careful to avoid adverse findings by the Federal and New York State Departments of Labor.
The Federal Fair Labor Standards Act (“FLSA”) requires both public and private entity employees to be paid minimum and overtime wages. The question of who qualifies as an “employee” under the FLSA is not as simple as you would expect. For public agencies, the State, and its subdivisions, there is an express exception in the FLSA to allow volunteer to perform public services without entitlement to wages. A public “volunteer” includes people who: (1) perform services for “civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation;” (2) are not already providing similar services as an employee of the same public entity; (3) are not promised and do not expect to receive compensation; and (4) perform work without direct or indirect pressure or coercion. Additionally, a municipality may pay “expenses, reasonable benefits, or nominal fees” to a volunteer without risking the creation of an employment situation.
The determination as to whether a person is a volunteer under the FLSA is very fact specific and the totality of the circumstances will be closely examined. On June 18, 2014, the Second Circuit Court of Appeals addressed the issue for the first time, in Brown v. New York City Department of Education, finding that a young man who provided needed services for 40 hours a week over three years at a New York City high school was a public volunteer under the FLSA and not entitled to wages. Brown had begun “working” at the school to help his brother, who was an employee, because he was unable to find employment and wanted to build his resume, become a better person, and help students. He was, apparently, a very good worker, and both the school principal and his brother gave him token amounts of money, bought him lunch, and paid for his Metro Card over the years. He repeatedly requested a paid position, and was told that he did not have sufficient higher education to qualify for a paid position and that there was no money in the budget for another position. He was asked not to return to the school after a female student lodged a complaint against him (the specifics of which were not provided by the Court). Upon his “termination,” he sued for back wages.
In affirming the District Court’s dismissal of his action, the Second Circuit held that:
- A person does not have to be solely motivated by civic, charitable, or humanitarian purposes to be considered a public volunteer (to build one’s resume is an acceptable purpose);
- Whether or not a person expected compensation for their work is subject to an objective reasonableness standard; and
- The court should look at the “economic realities” and other relevant factors of the situation to determine whether compensation could have been expected.
The Second Circuit Court acknowledged that the public volunteer exception is unique, and specifically noted that private sector employers have a more difficult time establishing that a volunteer is not an employee entitled to wages.
It is important that the FLSA not be construed in such a way so as to discourage volunteerism, and public agencies and municipalities should not be discouraged from accepting help from volunteers. The Second Circuit decision in Brown certainly encourages public entities and municipalities to accept volunteers without threat of liability for wages.