In a recent opinion from the Fourth Circuit Court of Appeals — which covers West Virginia — Purdham v. Fairfax County School Board, the Plaintiff took a swing at the definition of “volunteer” under the Fair Labor Standards Act (“FLSA”) and ended up making a triple-bogey. (Spring isn’t just the time of year for basketball folks).

Mr. Purdham worked as a security assistant for Fairfax and served as a high school golf team coach for a number of years. He filed suit against Fairfax under the FLSA, alleging that he was entitled to overtime pay for his coaching services. The issue facing the court was whether Mr. Purdham qualified as a “volunteer” or an “employee” under the FLSA – which is always a tricky issue for those in the wage-and-hour field.

The following key facts were teed-up for the Court:

  • Mr. Purdham was permitted to work on his coaching duties during the school day;
  • His position as security assistant was not tied to his coaching duties;
  • When a golf activity occurred during work hours, Mr. Purdham was permitted to take paid administrative leave to attend to his coaching duties;
  • Coaches were entitled to file grievances if a dispute arose over their positions;
  • Coaches received reimbursement for expenses and mileage, as well as a stipend. In Mr. Purdham’s case, the stipend was a little over $2000; and
  • One year during his tenure, Fairfax changed its policy and paid overtime in response to FLSA litigation involving other school districts. It then reverted to its prior practice after an opinion letter was issued by the Department of Labor finding employee-coaches were properly deemed volunteers under the FLSA.

Addressing the ball . . . er, the issue, the Court looked to the statutory and regulatory language defining “volunteer” for a public agency. According to the Court, an exempt volunteer is one who “receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform” the volunteered services; and the services provided are not the same type performed as an employee of the public agency. Charitable reasons are a motivator of the services, and that the individual offers his services without coercion.

Looking at the totality of the circumstances objectively, the Fourth Circuit found that Mr. Purdham’s coaching duties were performed as a volunteer for FLSA purposes and, in doing so, made short work of several course hazards facing Fairfax. For two, the availability of the grievance process and the one year change in policy to paying overtime were not considered significant. For a third, the stipend, when compared to his normal salary, was deemed nominal and was in no way tied to productivity so as to be considered “compensation.” Also, Fairfax exerted no pressure over its employees to coach, and Mr. Purdham’s dedication was motivated in part by his charitable instincts. Interestingly, the fact that other coaches felt that their service was done on a volunteer basis was significant in the Court’s eyes.

Lastly, the Court went out of its way to make clear that the FLSA is not to be read as discouraging volunteerism. Prohibiting the use of paid administrative leave, which would require the employee-coach to use personal or unpaid leave to attend to their coaching activities, would discourage volunteering. To hold otherwise, the Court reasoned, would not be on par with Congressional intent.

While the reach of the Purdham case may be limited to its specific facts – as cases on overtime often are – the opinion still is useful for the FLSA-guidance it provides to employers whose employees often engage in other paid activities perhaps as a result of, but not formally connected to their underlying employment. And that’s true whether you’re teeing off on the first hole as the weather gets warm, or staying in your office trying to determine how to compensate your employees while everyone else is outside doing it.

Vanessa Towarnicky's primary focus is in the area of labor and employment law. She has been involved in representing clients in various employment cases, including sexual harassment; deliberate intent; age, race, and disability discrimination; wrongful discharge; and various other employment-related torts. She is admitted to various state and federal courts as well as the Third Circuit Court of Appeals and Fourth Circuit Court of Appeals.
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