The Wage and Hour Division of the Department of Labor (DOL) recently released four new opinion letters concerning volunteering and the Fair Labor Standards Act.   

Different Public Agency

The Department opined that county-employed emergency medical technicians are able to volunteer to provide emergency medical services for a local volunteer emergency crew (the “Crew”) without violating the FLSA. Advice was sought about whether the county and the Crew would be considered the same public agency under the FLSA. Relying on factors considered by the Fourth Circuit in Benshoff v. City of Virginia Beach, 180 F.3d 136 (4th Cir. 1999), the DOL found the county and the Crew did not constitute the same public agency. Facts relevant to this determination included the following: (1) Crew members voted to elect officers; (2) the Crew had a board of trustees made of public citizens and maintained its own set of by-laws and policies; (3) the county did not control the Crew’s personnel decisions; and (4) the county only paid for 20 percent of the Crew’s operating expenses.  FLSA2008-13 (December 18, 1008)

Same Services

In a separate opinion letter, the DOL advised that a firefighter who is employed by a private, volunteer fire department may not provide firefighting services for his or her employer in exchange for compensation on some shifts and on an unpaid basis during other shifts.  FLSA2008-14 (December 18, 2008)

Compensating Volunteers

The DOL addressed compensating volunteers in two recent opinion letters. Volunteers may receive nominal compensation. Generally, a fee or other compensation paid to a volunteer that is not greater than 20 percent of the amount that would otherwise be paid to a full-time employee is nominal compensation. With these rules as its guide, the DOL addressed a fire protection district’s proposed monthly stipend to volunteer firefighters and compensation received by a victim specialist who worked part time as a reserve police officer.

With respect to the fire protection district, there was not enough information for the DOL to conclude whether the proposed stipend qualified as a nominal fee. However, the DOL did advise that it would find the fee to be nominal so long as the proposed stipend did not exceed 20 percent of the approximate prevailing wage in the area.

Concerning the victim specialist, the DOL found an employment relationship because the victim specialist was paid the equivalent of an entry level officer when the victim specialist worked special assignments as a reserve police officer. As the compensation received was greater than 20 percent of what would be paid a full-time employee, the victim specialist could not be classified as a volunteer when working special assignments as a reserve police officer.

The DOL also discussed whether the hours worked by the victim specialist as a victim specialist must be combined with the hours worked as a reserve officer for overtime compensation purposes. Based on FLSA section 7(p)(2), the DOL advised that the victim specialist could continue to be paid as a reserve police officer during special assignments without needing to combine hours because those assignments occur on an occasional or sporadic basis. The victim specialist could also continue to volunteer as a reserve police officer as long as he/she is ineligible to volunteer during workweeks that he/she is paid for special assignments, his/her occasional and sporadic part-time employment during those assignments is terminated at the conclusion of the special assignments, and he/she is returned to volunteer reserve officer status during weeks where no compensated work is performed.  FLSA2008-15 (December 18, 2008)  FLSA2008-16 (December 18, 2008)

This blog entry was authored by Brian Mosby