Fourth Circuit Rules That Public School Employee Who Volunteered As Golf Coach Was Not Entitled To Minimum Wage Or Overtime
The FLSA limits when an individual can provide services to an organization without compensation. See post dated April 6, 2010 “We Don’t Have to Pay Our Interns – Do We?” However, last month a panel of the Court of Appeals for the Fourth Circuit (including Retired Supreme Court Justice Sandra Day O’Connor sitting by designation) re-confirmed one such circumstance, holding that a full-time public school employee who also voluntarily coached a golf program for a small stipend was a volunteer under the FLSA and not entitled to minimum wage or overtime pay. Purdham v. Fairfax County School Board, No. 10-1048, 2011 U.S. App. LEXIS 4644 (4th Cir Mar. 10, 2011). Although the plaintiff alleged he worked 400-450 hours per year as a coach, because his regular, overtime-eligible position as a security assistant was not conditioned on his coaching position, he was considered a volunteer under the FLSA when performing services as golf coach.
The plaintiff proffered five arguments in support of his claim he was an employee entitled to minimum wage and overtime for coaching activities:
(1) He subjectively considered himself an employee and not a volunteer;
(2) The terms of his employment contract established that he was an employee and not a volunteer;
(3) Defendant made a prior retroactive payment for overtime wages to all non-exempt employees who performed coaching duties;
(4) Defendant provided paid administrative leave when coaching responsibilities conflicted with regular full-time work; and
(5) Defendant paid a small stipend to coaches.
The court dismissed out-of-hand the plaintiff’s first two arguments, finding that plaintiff’s subjective views and the terms of his employment contract are not controlling. The court also found that the prior retroactive payment for overtime wages made to all non-exempt employees who performed coaching duties merely exhibited an “abundance of caution” on the part of the school district, especially in light of the extensive FLSA-related litigation occurring in other school districts at the time. Similarly, paid administrative leave provided by the school district in order to allow coaches to perform their voluntary coaching responsibilities was found not to be prohibited under the FLSA, as such a rule would be inconsistent with the FLSA’s statutory goals. Lastly, the court determined that the small stipend the plaintiff received was plainly permitted under controlling FLSA regulations, and as a result did not serve to defeat the volunteer work exemption in this instance.
While volunteer public school coaches like the Plaintiff in Purdham may be considered volunteers in their coaching capacity, public employers must ensure that all requirements for a volunteer are satisfied (and that non-volunteer work is not performed during volunteer hours). While a similar volunteer exemption applies in the private sector for non-profit organizations, the volunteer concept is not recognized in the for profit private sector. See 29 CFR § 553.101(a); DOL Op Ltr FLSA2008-3NA.