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Court rules volunteer not entitled to FLSA protection

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in Compensation and Benefits,Human Resources

A young man who volunteered at a school in hopes of building his résumé is not an employee as defined in the Fair Labor Standards Act (FLSA) according to the 2nd Circuit Court of Appeals.

After graduating from high school, the man began working at Banana Kelly High School in the Bronx as a “volunteer intern.” He worked alongside the school’s intervention team, performing lunchroom supervision, detention, parent-contact and student-escort duties. He worked at the school five days a week and frequently came in on Saturdays to help out.

His stated aim was to “stand up, and make a change, and show kids that we do care.”

From time to time, he inquired about a paid position. The principal always cited tight budgets when turning him down.

Ultimately, the young man sued, claiming the work he was doing should be compensated under the FLSA. The school cited the FLSA’s public-agency volunteer exception as the reason for not paying him.

In its response, the school district also asserted the man knew he was a volunteer. It cited DOL regulations outlining the exception that state that workers who volunteer for “a civic, charitable, or humanitarian purpose” are neither promised nor expect to be paid.

The man asserted that because he was trying to build his résumé his actions were not solely for “a civic, charitable, or humanitarian purpose.” As a result, he argued, the exception did not apply.

Both the trial court and the 2nd Circuit rejected his argument. The appeals court noted that volunteers may give of their time for many reasons, and need not do so solely for charitable reasons.

Note: Many workers seek to pad their résumés with volunteer positions. Employers must make sure they examine DOL regulations to prevent any confusion over whether a volunteer is an employee or not.

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