FLSA2019-12 — Employment status of volunteer reserve deputies who perform paid extra duty work for third parties

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210

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FLSA2019-12
August 8, 2019
Dear Name*:
This letter responds to your request for an opinion on whether volunteer Reserve Deputies who
perform paid security work for third parties maintain their status as volunteers or are instead
employees under the Fair Labor Standards Act (FLSA). This opinion is based exclusively on the
facts you have presented. You represent that you do not seek this opinion for any party that the
Wage and Hour Division (WHD) is currently investigating or for use in any litigation that
commenced prior to your request.
BACKGROUND
You inquire on behalf of a county Sheriff’s Office that has seen a substantial increase in demand
from third-party businesses and individuals for certified peace officers to provide security
protection (“extra duty work”). You represent that the Sheriff’s Office has historically met this
need through the county’s Deputy Sheriff’s Association which is incorporated as a separate
entity but is staffed with Sheriff’s Office employees. The Association maintains a roster of full-
time deputies who seek to perform extra duty work, coordinates third-party requests for its
member deputies to perform extra duty work, collects payments from the third parties, and
disperses the payment to the deputies for their extra duty hours.
The Sheriff’s Office also runs a volunteer program pursuant to state law whereby civic-minded
individuals may volunteer to receive training as Reserve Deputies and serve, without
compensation, as state-certified reserve officers. You state that the volunteer Reserve Deputies
program and the Deputy Sheriff’s Association have operated independently of each other for
decades without any significant crossover. However, you represent that the significant increase
in demand for extra duty work from third parties in recent years has led the Deputy Sheriff’s
Association to offer extra duty work to volunteer Reserve Deputies at the same hourly rate
offered to full-time deputies.
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You note that the volunteer Reserve Deputies program has
allowed the growing public safety demands of the community to be met.
GENERAL LEGAL PRINCIPLES
Congress did not intend for the FLSA “to discourage or impede volunteer activities,” but rather
to “prevent any manipulation or abuse of minimum wage or overtime requirements through
coercion or undue pressure upon individuals to “‘volunteer’ their services.” 29 C.F.R.

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You represent that the demand for extra duty hours has increased approximately 37% from 2015 to
2018. You note that this increased demand for extra duty work is beyond the ability of the Deputy
Sheriff’s Association to supply through its full-time deputies. Nonetheless, Reserve Deputies accounted
for only about 6% of the extra duty hours worked by all deputies in 2018.

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§ 553.101(b). Indeed, the FLSA recognizes the generosity and public benefits of volunteering
and allows people to freely volunteer time for religious, charitable, civic, humanitarian, or
similar public services. See WHD Opinion Letter FLSA2018-22, 2018 WL 4562932, at *1
(Aug. 28, 2018); WHD Opinion Letter FLSA2006-4, 2006 WL 561849, at *1 (Jan. 27, 2006).
An individual who volunteers to perform services for a public agency i s not an employee under
the FLSA if: (1) the individual receives no compensation or is paid expenses, reasonable
benefits, or a nominal fee to perform the services for which the individual volunteered; and (2)
such services are not the same type of services which the individual is employed to perform for
such public agency. 29 U.S.C. § 203(e)(4)(A).
The Department’s regulations provide further guidance regarding public agency volunteers. See
29 C.F.R. §§ 553.100-.106. A “volunteer” is “[a]n individual who performs hours of service for
a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or
receipt of compensation for services rendered.” 29 C.F.R. § 553.101(a). The regulatory
definition of volunteer should be applied in a “common-sense manner.” Purdham v. Fairfax
Cnty. Sch. Bd., 637 F.3d 421, 428 (4th Cir. 2011) (citation omitted); see also Todaro v. Twp. of
Union, 40 F. Supp. 2d 226, 230 (D.N.J. 1999) (“The regulatory definition does not require that
the individual be exclusively, or even predominantly, motivated by ‘civic, charitable, or
humanitarian reasons’; therefore, the Court understands this phrase to be modified by an implied
‘at least in part.’”). Of course, the volunteer must offer his or her services “freely and without
pressure or coercion, direct or implied, from an employer.” 29 C.F.R. § 553.101(c); see WHD
Opinion Letter FLSA2019-2, 2019 WL 1225928, at *1 (Mar. 14, 2019); WHD Opinion Letter
FLSA2006-18, 2006 WL 1836646, at *1 (June 1, 2006); Acosta v. Cathedral Buffet, Inc., 887
F.3d 761, 767 (6th Cir. 2018) (“The type of coercion with which the FLSA is concerned is
economic in nature, not societal or spiritual.”). An individual who volunteers for a public agency
may be paid expenses, reasonable benefits, or a nominal fee for his or her volunteer work, but
such volunteer work may not be the same type of services which the public agency employs the
individual to perform. See 29 U.S.C. § 203(e)(4)(A); 29 C.F.R. §§ 553.101(d), 553.106(a).
WHD regulations enumerate several specific examples of public agency volunteers, including
auxiliary police. See 29 C.F .R . § 553.104(b).
OPINION
Based on the facts you have provided, the volunteer Reserve Deputies’ performance of extra
duty work for third parties does not result in the loss of their volunteer status.
First, the Reserve Deputies volunteer for the Sheriff’s Office and thus are not otherwise
employed by the Sheriff’s Office.
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Additionally, the facts you have provided here make clear
that volunteer Reserve Deputies in the program are not “compensated” merely by receiving

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Your request cites 29 C.F.R. § 553.227; however, that regulation addresses outside employment by
police officers who are employees, as opposed to volunteers, of public agencies. Also, this letter does not
analyze whether there may be a joint employer when Reserve Deputies are performing extra duty work
for third parties or whether the Sheriff’s Office and the Deputy Sheriff’s Association are the same or
separate public agencies. See 29 C.F.R. § 553.102.

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potential access to extra duty work.
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Importantly, there is no indication that their access is
related to how many hours they volunteer, or the type or quality of their volunteer work, for the
Sheriff’s Office. The Reserve Deputy program has existed for about 35 years, but the
Association did not make extra duty work available to Reserve Deputies until several years ago,
due to a significantly increased demand for such services. Whether the volunteer Reserve
Deputies actually perform extra duty work depends on the needs of third parties who request
security services, among other factors. There is no indication that such access induces
individuals to volunteer as Reserve Deputies.
In the alternative, even if a volunteer’s access were to be construed as compensation, such access
would be a “reasonable benefit” for volunteering and would not alter his or her volunteer status.
29 U.S.C. § 203(e)(4)(A)(i). WHD regulations state that including individual volunteers in
group insurance plans or pension plans is generally a reasonable benefit. See 29 C.F.R.
§§ 553.106(d). Further, WHD has previously opined that $1,500 in annual relief from personal
property taxes during the term of a volunteer’s service is a reasonable benefit. See WHD
Opinion Letter, FLSA2006-28, 2006 WL 2792442, at *5 (Aug. 7, 2006). Individuals do not lose
their volunteer status if they are provided reasonable benefits by a public agency for whom they
perform volunteer services. See 29 C.F.R. § 553.106(d). Giving the volunteer Reserve Deputies
access to extra duty work for third parties is one such reasonable benefit. This access is offered
to all officers on the same general terms, is not guaranteed, and is contingent upon the changing
needs of private third parties, and Reserve Deputies account for only about 6% of extra duty
hours worked. Moreover, the access to extra duty work has no cost to the Sheriff’s Office. See
Todaro, 40 F. Supp. 2d at 231 (concluding that, among other things, access to paid work was a
reasonable benefit because there was “no detriment or cost” to the public agency). Thus, the
furnishing of this access, examined in the context of the economic realities of this particular
situation, is reasonable.
A federal district court in New Jersey reached the same conclusion in a substantially similar case.
There, the plaintiffs served as unpaid “special law enforcement officers” for the town, in part to
be eligible for paid positions with private entities. See Todaro, 40 F. Supp. 2d at 231. The court
concluded that the plaintiffs satisfied the criteria for volunteers and that their eligibility for paid
positions with private entities was a reasonable benefit that did not invalidate their status as
volunteers. See id. at 231-32.
Finally, there is no indication that the Sheriff’s Office manipulated or abused the minimum wage
or overtime pay requirements by coercing or unduly pressuring individuals to volunteer as
Reserve Deputies. See 29 C.F .R . § 553.101. Rather, the Reserve Deputies appear to be offering
their services without any expectation of compensation, and without any pressure or coercion. As
such, access to potential external employment opportunities from private third parties does not

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See Todaro v. Twp. of Union, 27 F. Supp. 2d 517, 539 (D.N.J. 1998) (explaining that “plaintiffs have not
provided any case law demonstrating that mere eligibility to accept paid employment in and of itself
constitutes compensation” and “[t]he Court is unwilling to extend the commonsense definition of
‘compensation’ to incorporate such intangible benefits as the eligibility to accept potential paid
employment.”).

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change the Reserve Deputies’ volunteer status. The volunteer status of the Reserve Deputies
appears to be analogous to the “auxiliary police” example provided in 29 C.F.R. § 553.104(b).
We trust that this letter is responsive to your inquiry.
Sincerely,

Cheryl M. Stanton
Administrator
*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C.
§ 552(b)(6).