The Fair Labor Standards Act of 1938 (FLSA) was passed to protect American workers from detrimental and dangerous workplace practices. The FLSA includes the following types of provisions:

• a minimum wage requirement
• overtime pay requirements
• child labor restrictions
• record keeping directives

The FLSA applies not only to most private sector employers, it also applies to federal, state, and local employers as well.

Exclusions and Exemptions

Despite its broad application, the FLSA does exclude certain classes of workers from coverage. To be protected by the FLSA, a worker must be an "employee," not merely an independent contractor. Furthermore, the employee's job must not fall within a category, like agriculture worker, that is statutorily excluded from FLSA coverage. Some employees, while not excluded from FLSA coverage, are exempt from FLSA overtime rules. This means that employers are not required to pay them premium pay for any overtime hours they work. The FLSA also exempts from coverage those employees of a public agency who are engaged in law enforcement or fire protection activities for a public agency that employs fewer than five employees in those activities.

Volunteer Exemption

The FLSA specifically excludes from the definition of "employee," and thus from FLSA coverage, those workers who volunteer for a public agency that is a state or political subdivision of a state. This exception applies if:

• The worker receives no compensation, except for expenses, reasonable benefits, or a nominal fee, and
• The services performed by the worker are not the same type of services that the individual is employed to perform for the public agency.

Recent Case Law

Several recent cases have analyzed and interpreted this volunteer exemption. In one case, a city police department employed three full-time officers and assorted unpaid law enforcement officers. The city refused to pay overtime wages to the paid employees. Although the unpaid officers retained their police commissions, they did not receive compensation for their services. The full-time employees, who resigned their posts, sued the city, contending that they were entitled to overtime back pay under the FLSA. The city, however, contended that it was exempt from FLSA requirements because it employed fewer than five law enforcement employees.

In ruling in favor of the city, the court relied on the Secretary of Labor's definition of "volunteer" to find that the unpaid officers had been acting in a volunteer capacity and were not employees. That definition stated that a volunteer was a worker who performed hours of service for a public agency without promise, expectation, or receipt of compensation. Because the unpaid officers were volunteers, the city did not employ five or more employees. Thus, the FLSA did not apply to the city's paid law enforcement employees.

Although the paid officers argued that the unpaid workers had worked without pay for the "selfish" reason of maintaining their police commissions, the court refused to undertake an analysis of the workers' motivations. Instead, the court looked objectively at the totality of the circumstances to determine that the workers were volunteers under the statutory definition.

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.