Are you a “volunteer” worker who earns more than a nominal fee? If so, you may actually be an “employee” entitled to minimum wage and overtime protections under the federal Fair Labor Standards Act (“FLSA”).

The FLSA generally defines “employee” as “any individual employed by an employer.” Noting the “striking breadth” of the FLSA’s expansive definition of “employ,” the U.S. Supreme Court has stated that this definition stretches the meaning of employee to cover some workers who might not qualify as such under a strict application of traditional agency law principles. In 1986, Congress amended the FLSA to clarify that individuals who volunteer to perform services for a public agency are not employees under the Act. However, where a “volunteer” reasonably expected and received hourly compensation in an amount greater than a nominal fee, he or she may lose “volunteer” status.

Interestingly, the Sixth Circuit Court of Appeals was recently tasked with deciding whether volunteer workers fall within the FLSA’s broad definition of employee.  In Mendel v. City of Gibraltar, the defendant municipality typically had between twenty-five and thirty volunteer firefighters who were required to complete training on their own time without compensation. While they were not required to respond to any emergency call, they were paid $15 per hour for the time they did spend responding to a call or maintaining equipment. They did not work set shifts or staff a fire station, they maintained other employment, and they had no consistent schedule working as volunteer firefighters. The ultimate question was whether the wages paid to the firefighters constituted “compensation” or merely a “nominal fee” – if the hourly wages were compensation, then the firefighters were employees under the FLSA, but if the wages were merely a nominal fee, then the firefighters would be considered volunteers expressly excluded from the FLSA’s definition of employee.

The Sixth Circuit held the Gibraltar “volunteer” firefighters were entitled to protection under the FLSA because the wages constituted compensation, citing U.S. Supreme Court precedent stating that those who “work in contemplation of compensation” are “employees” within the meaning of the FLSA, even though they may view themselves as “volunteers.”

If you work for an organization that considers you a volunteer worker, but you believe you are actually an employee with a reasonable expectation of compensation, you need to call Sommers Schwartz.  We can evaluate your situation and your employment status, and help you determine whether you are being paid all the compensation to which you are entitled.

Charles Ash, IV

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Charles Ash, IV

Charles R. Ash, IV is a Shareholder in Sommers Schwartz’s Complex Litigation groups. A substantial portion of Rob’s practice is devoted to collective and class actions arising under the Fair Labor Standards Act (FLSA) and similar state laws.

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