Vol. 24 No. 16 – FLSA and ‘Volunteerism’ by Employees

June 18, 2009

A number of agencies have recently encountered the question of when, or even if, it is permissible for officers to volunteer for civic or charitable activities, while in uniform, without being compensated.

An example of such volunteer activity has  included a charitable program known as “Shop With A Cop,” whereby officers volunteer their own time, but in uniform, to be paired with an under-privileged youth for a shopping trip for clothes, school supplies, etc. (with the shopping expenses paid by charitable donations from the public).

Another example posed is where officers volunteer their own time to participate in civic parades while in uniform (but not providing law enforcement services such as traffic or crowd control, crime suppression, etc.).

FLSA and Volunteers

A review of relevant portions of the Fair Labor Standards Act (FLSA) and related provisions of the Code of Federal Regulations (CFR), as well as Department of Labor (DOL) letter opinions, leads us to the conclusions that, with some very important caveats, genuine volunteerism of the sort described is permissible.

Congress did not intend to discourage or impede volunteer activities undertaken for civic, charitable, or humanitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or
undue pressure upon individuals to “volunteer” their services. 29 CFR § 553.101(b).

Individuals shall be considered volunteers only where their services are offered freely and without pressure or coercion, direct or implied, from an employer.  29 CFR § 553.101(c).  And, an individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.  29 CFR § 553.101(d).
(Emphasis added.)

Same or Similar Activity

The phrase “same type of services” means similar or identical services. Important in such a determination will be the consideration of all the facts and circumstances in a particular case, including whether the volunteer service is closely related to the actual duties performed by or responsibilities assigned to the employee.  29 CFR § 553.103(a).

An example of an individual performing services which constitute the “same type of services,” is a firefighter who volunteers as a firefighter for the same public agency. Another example would be a corrections officer volunteering as a reserve for the same sheriff’s office.  29 CFR § 553.103(b).

Examples of volunteer services which do not constitute the “same type of services” include: A city police officer who volunteers as a part-time referee in a basketball league sponsored by the city; an employee of the city parks department who serves as a volunteer city firefighter; and an office employee of a city hospital or other health care institution who volunteers to spend time with a disabled or elderly person in the same institution during off duty hours as an act of charity.  29 CFR § 553.103(c).

Note that the focus of the analysis vis-à-vis allowable volunteerism without compensation is not on whether the volunteering employee is in uniform, and not on whether some tangential benefit inures to the employer from having its employees seen in the community as visible representatives of the agency.

Rather, the focus is on the two part analysis of whether (a) the volunteer service is the same or similar to the duties regularly performed for the employer; and, (b) whether the “volunteerism” is truly voluntary rather than the product of employer coercion or inducement.

But it must be borne in mind that such volunteer activity is viewed with suspicion by DOL, and the employer will be required to demonstrate that the city neither solicited nor induced the employee to volunteer his time.  (See, also, 29 USC §203(e)(4)(A).

Take-Home Units

A different result is reached with the practice followed by some agencies in authorizing officers to drive marked units to and from the work location.

The benefit to the officer is obvious; he/she is provided with transportation for work commutes at agency expense.  The benefit to the agency is found in the increased presence of marked and uniformed officers as these personnel commute to and from work.

Officers on patrol in marked units while on duty are performing a service by providing the well-established and indeed axiomatic benefit of visible police presence.  This is true whether or not the officer is at a given moment otherwise engaged in substantive police work.  The mere fact that the uniformed officer and the marked unit are seen “out and about” in the jurisdiction is valued for its deterrent effect on crime and the assurance it provides to the citizenry that its officers are “on the job.”

And, clearly, officers are paid for time spent on visible patrol; they do not acquire paid status only when assigned a specific and substantive work detail or responding to an incident they observe.

If the agency does not wish to compensate officers for this commute time, the agency can instruct officers to place an “Out Of Service” cover on the emergency lights, and wear a jacket or other garment over their uniform while commuting.

For much the same reason as officers can volunteer for activities not entailing the same or similar services for which they are ordinarily paid to perform while on duty, so likewise officerscannot “volunteer” to drive in uniform, in a marked unit, to and from work, as doing so clearly entails performing the same “visible patrol” duties for which they are ordinarily paid while on duty.

The solution then becomes to either avoid the compensation requirement by truly rendering the officer and the marked unit “off duty” during the commute, and thereby sacrificing the benefit of “visible patrol; or, to realize the benefit of “visible patrol” during the commute by compensating the officer for the time spent in commuting.

How This Affects Your Agency

With all of the above in mind, it would seem permissible for officers to volunteer for activities such as “Shop With A Cop,” marching in a civic parade while in uniform, and other such activities without violating federal wage and hour laws.  We reach this conclusion on the assumption that officers have volunteered their time, and because activities such as taking a disadvantaged youth shopping or riding on a float in a parade are not the sort of “duties” to which on duty officers are ordinarily paid.

However – and we cannot emphasize this strongly enough – it is essential that the employee is a true and genuine volunteer in both name and fact, and the activity for which the employee has volunteered does not involve the same or similar duties as those for which the employee is ordinarily compensated.

As always, we urge that you confer with your agency’s own attorney for legal advice and guidance.  If you wish to discuss this case in greater detail, please feel free to contact either of us at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com or prc@jones-mayer.com.