Employee or Volunteer?

The Fair Labor Standards Act (FLSA) protects employees in several different ways such as providing that workers be paid minimum wage and non-exempt employees be paid overtime at a rate of one and one-half times their standard rate of pay for each hour worked in excess of 40 in any one work week. However, receiving these protections generally requires that you be an “employee” and not an independent contractor or volunteer.

If you have any wage and hours questions, or are concerned that you are not receiving the pay you are entitled to, it is a good idea to consult with an experienced Atlanta FLSA attorney to ensure right away to ensure you are being paid what you rightly deserve.

A recent case out of the 2d Circuit Court of Appeals looked closely at the legal definition of when a worker should be considered a volunteer or an employee for the purposes of the FLSA.

In Brown v. New York City Board of Education, the 2d Circuit evaluated the duties and activities provided by a school worker. These included a variety of services including lunchtime supervision, detention, parent contact and student escort services. He also answered phones and handed out reports cards and progress reports, as well as student mentoring.

The worker’s occasional requests for a paid position were denied due to alleged budget constraints and his lack of a higher education degree. He then sued the school alleging violations of the FLSA, specifically that he was entitled to be paid for his services. Although federal law doesn’t specifically define “volunteer,” the Department of Labor provides the following guidance:

A volunteer is a person that performs services for a public agency • for a civic, charitable or humanitarian purpose • has not been promised or does not expect or receive compensation for the services rendered;
• performs such work freely and without pressure or coercion, direct or implied, from such employer; and • is not otherwise employed by the public agency to perform the same type of services for which the individual volunteers.

Further, no restrictions exist on the types of services that one can volunteer to perform. For example, an agency can pay expenses, reasonable benefits and a nominal fee for services (or a combination of all 3) without jeopardizing the individual’s volunteer status. In this situation, the court determined that the worker was a volunteer – but strictly limited its decision to public sector workers. Employers in the private sector who wish to categorize employees as “volunteers” are under stricter scrutiny to make sure they follow the letter of the law.

For more information or if you have any question concerning wage and hour laws, or believe that you may not have received all the wages you deserve, please contact the top Atlanta wage and hour attorneys at Buckley Bala Wilson Mew LLP for an immediate case evaluation.