FLSA2004-8 — Media assistant-coach and same or similar services

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

September 7, 2004
FLSA2004-8
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Dear
Name*,

This is in response to your letter dated May 24, 2004, written on behalf of your constituent,
Name*
requests guidance under the FLSA concerning the use of non-exempt school system employees to assist
as volunteers with extra-curricular activities such as coaching sports, sponsoring clubs, etc., or to perform
other duties for the school system. He seeks clarity as to how the FLSA applies to these activities
because the schools indicate that Fair Labor Standards Act (FLSA) regulatory provisions are not clear or
are interpreted differently in other jurisdictions.

The FLSA recognizes the generosity and public benefits of volunteering, and does not seek to pose
unnecessary obstacles to bona fide volunteer efforts for charitable and public purposes. Please be
assured that this Administration fully supports volunteerism and is committed to work to ensure that
citizens are able to freely volunteer their services for charitable and public purposes within the legal
constraints established by Congress. Wage and Hour Division (WHD) staff is prepared to work with and
offer assistance to school districts on FLSA compliance.

Section 3(e)(4)(A) of the FLSA and 29 CFR 553.101 and 553.103, copies enclosed, indicate that
individuals qualify as volunteers, and are not employees of a public agency, when they meet the following
criteria:

A. Perform hours of service for civic, charitable or humanitarian reasons without promise,
expectation, or receipt of compensation for the services rendered. The statute clarifies that a volunteer
performing such service can either receive no compensation or be paid expenses, reasonable benefits or
a nominal fee to perform such services.

B. Offer their services freely and without coercion, direct or implied, from the employer.

Are not otherwise employed by the same public agency to perform the same services as those for which
they propose to volunteer. In other words, individuals can qualify as volunteers if they either volunteer for
different agencies
or perform different services than they are otherwise employed to perform.

The WHD recently considered the application of the FLSA volunteer provisions to schools and described
the relevant considerations necessary to determine whether an individual who volunteers to provide
services for a public entity is a bona fide volunteer in different factual situations. The letter is attached for
your consideration.

Name* is employed as a technology and media assistant and is performing tasks described in O*NET as
a computer support specialist, 15.1041.00,
http://online.onetcenter.org/report?r=0&id=195. The services
performed by a person employed in this occupational category differ substantially from those provided by
a volleyball and baseball coach, as described in the O*NET coaching occupational category at
27.2022.00,
http://online.onetcenter.org/report?r=0&id=396. Applying the criteria set out in the attached
letter to the description of duties performed as a technology and media assistant and as a volleyball and
baseball coach,
Name* is not providing services that are the same or similar to those he is employed by
the school to provide. Therefore, no FLSA violation would occur when he volunteers to coach volleyball
and baseball teams.

However, if
Name* provides services that are the same or similar to those he is employed to perform
and provides these services for his employer,
Name* such work may not be done as a volunteer but
rather are considered hours worked for which he must be compensated. For example,
Name* is
employed to “schedule and perform routine maintenance” on computers and has also, without
compensation, “spent the last two summers working on the computers in the school cleaning them and
bringing the software up to date...” Applying the test used to determine that his work as a volunteer coach

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

is permitted, under the FLSA, in upgrading and maintaining computers for the school system, may not be
provided as a volunteer.
Name* is performing services that are the same or similar to those he is
employed to provide and to the extent he continues to do so, he must be paid according to the
requirements of the FLSA.

We trust you will find the above discussion and analysis responsive to your request.

Sincerely,

Alfred B. Robinson, Jr.
Acting Administrator

Enclosure

Note: * The actual name(s) was removed to preserve privacy.
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