|Original Document: |
Text of Document: From: Stokes, Richard L
Sent: Friday, March 23, 2012 3:57 PM
Subject: RE: Volunteer workers at the Golf Course
Your question is easy for citizens of the city. That answer is that there would be no problem. Employees in the department are a different story. They definitely can’t do it. The city would have to pay overtime (not allowing them to play).
Section 3(e)(4)(A) of FLSA and 29 C.F.R. §§ 553.101 and 553.103 state that individuals are volunteers and not employees of a public agency when they meet the following criteria:
• Perform hours of service for civic, charitable or humanitarian reasons without promise, expectation, or receipt of compensation for the services rendered. Volunteers can receive no compensation or be paid expenses, reasonable benefits or a nominal fee to perform such services (§ 553.101(a));
• Offer their services freely and without any pressure or coercion, direct or implied, from the employer (§ 553.101(c)); and
• Are not employed by the same public agency to perform the same services as those for which they propose to volunteer (§ 553.101(d)). For example, a park’s department worker can serve as a volunteer firefighter for the same agency (§ 553.103(c)).
An employee cannot be both a “paid” employee and a “non-paid” volunteer while performing the same type of work for the same employer.
For current employees, when state or local government employees, at their option, work occasionally or sporadically on a part-time basis for the same agency in a capacity different from their regular employment, the hours worked in the different job do not have to be combined with the regular hours for the purpose of determining overtime liability” (29 U.S.C.§ 207(p)(2)).DOL defines “occasional or sporadic as infrequent, irregular or occurring in scattered instances” (29 C.F.R.553.30(b)(1)). DOL has determined (29 C.F.R.§ 553.30(c)(3)) that hours worked “will be excluded only where the occasional or sporadic assignment is not within the same general occupational category as the employee’s regular work.” Moreover, “the decision to work in a different capacity must be made freely by the employee and without concern, implicit or explicit, by the employer” (29 C.F.R.§ 553.30(b)(2)).The employee must be free to refuse to perform the work without fear of sanctions and without being required to explain or justify the decision.
I hope this information is helpful. Feel free to contact me if you have questions or I can be of any further assistance.
Richard L. Stokes, IPMA-CP, PHR
Office Manager/Human Resources Consultant
Executive Director - TN Chapter IPMA-HR
The University of Tennessee
Municipal Technical Advisory Service
226 Capitol Blvd. Bldg., Suite 606
Nashville, TN 37219
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