Courts continue to wrestle with claims brought by individuals treated by businesses as  outside the scope of the FLSA’s minimum wage and overtime requirements.  Many of these claims are asserted by individuals classified as volunteers and of course interns, all claiming to be employees entitled to the protections of the FLSA.  In one such case, the Court of Appeals for the Tenth Circuit, reviewing a decision from a federal court in New Mexico, affirmed that under the “economic realities” of the arrangement, a public sector union president was a volunteer officer, not an employee of the union, and thus not entitled to overtime pay.  Padilla v. Am. Fedn. of State, 2014 U.S. App. LEXIS 71 (10th Cir. 2014).

Padilla, a regular employee of a county water authority, cited the union’s policy of compensating officers and members at a fixed hourly rate for “lost time” spent on union activities, which policy, the union asserted, was designed to alleviate the burdens of volunteerism.  Padilla alleged that these payments were akin to regular employee compensation.  Reviewing the district court’s analysis of the economic realities of Padilla’s role as union president, including its findings that the union “did not exert control over Padilla’s services, including his schedule and the amount of time spent on his presidential duties and, further, that [the union] did not hire or fire [Plaintiff],” the Circuit ruled that Padilla’s presidential duties did not create an employment relationship under the FLSA, notwithstanding the “lost time” pay.

Organizations treating individual service providers as outside the protections of the FLSA must continue to monitor developments in this area, as well as DOL guidance and rulemaking.

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Photo of Noel P. Tripp Noel P. Tripp

Noel Tripp is a Principal in the Long Island office of Jackson Lewis P.C., one of the largest law firms in the United States devoted exclusively to representing management in labor and employment matters. Since joining Jackson Lewis P.C. as a summer associate…

Noel Tripp is a Principal in the Long Island office of Jackson Lewis P.C., one of the largest law firms in the United States devoted exclusively to representing management in labor and employment matters. Since joining Jackson Lewis P.C. as a summer associate in May 2005, he has practiced exclusively in employment law and has been involved in matters pending before federal and state courts and administrative agencies covering the gamut of employment-related matters from discrimination and workplace harassment to wage/hour disputes and affirmative-action compliance. His principle focus is the defense of class and collective action lawsuits under federal and state wage-and-hour laws.

Mr. Tripp is a graduate of Dartmouth College (A.B. 1999), and Fordham Law School (J.D. 2006). Prior to attending law school, Mr. Tripp was a complex commercial litigation paralegal at a large national law firm in Los Angeles, California. He is admitted to practice in the state of New York.

Education

  • Fordham University, J.D., 2006
  • Dartmouth College, A.B., 1999

Admitted to Practice

  • New York, 2007
  • New York – E.D. N.Y., 2008
  • New York – S.D. N.Y., 2008