FLSA2008-16 — Victim Assistant Specialist volunteering as reserve police officer and receiving hourly pay under sections 3(e)(4)(A) and 7(p)(2)

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

FLSA2008-16

December 18, 2008

Dear Name*:

This is in response to your request for an opinion concerning whether a Latino Victim
Specialist (LVS) employed by a Police Department may volunteer as a Reserve Police
Officer for the same public agency under the Fair Labor Standards Act (FLSA).
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Based
on a review of the information provided, it is our opinion that the LVS may not volunteer
as a Reserve Police Officer because he is compensated for part of those services at
greater than a nominal fee. Under appropriate circumstances, however, he may be
employed in that position pursuant to section 7(p)(2) of the FLSA.

You state that a Police Department employee works full-time in a civilian capacity as the
Crisis Unit LVS, providing victim assistance and other social work services. The
employee also volunteers as a Reserve Police Officer. The Crisis Unit is the social work
arm of the Police Department. Crisis Unit personnel provide counseling and other
assistance to, among others, victims of crime, families experiencing domestic violence,
citizens with mental or psychological difficulties who become involved in law
enforcement matters, homeless persons, and parents having difficulties with delinquent
children.

The major duties of the LVS are civilian rather than law enforcement in nature, and
include providing follow-up services such as safety planning, counseling, court
support/advocacy, and case management to all Latino crime victims within the
jurisdiction of the Police Department; developing and maintaining a close working
relationship with the District Attorney’s Office and Court Liaison assigned to domestic
violence and sexual assault cases; training police officers regarding cultural diversity and
victim issues pertaining to Latino victims; developing a data collection and case tracking
system for cases responded to by the Police Department; preparing case summaries of
domestic violence and sexual assault cases involving Latino crime victims; counseling
Latino crime victims to determine needs and appropriate services; assisting clients with
obtaining domestic violence protective orders and warrants; providing crisis intervention
services and counseling to Latino crime victims; reporting potential child and elder abuse
to the appropriate agency; and assisting service agencies with program development,
including ensuring coordination of services for clients. Positions in the Crisis Unit do not
require law enforcement training or certification and, with the exception of the LVS, no
other Crisis Unit employees are certified.

1
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at
www.wagehour.dol.gov.

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The individual also serves as a Reserve Police Officer. In order to be a Reserve Police
Officer with the Police Department, officers must meet firearms qualifications, complete
other training requirements, and work as a police officer for ten hours per quarter during
the year. If the Police Department requests the services of a Reserve Police Officer for a
special assignment, e.g., for Halloween, NCAA celebrations, or street fairs, the officer’s
work counts toward the required ten quarterly hours and the officer is paid for the work.
When the Reserve Police Officer volunteers for hours that the Police Department has not
specifically requested, the work is counted toward the ten-hour requirement, but the
volunteered time is unpaid.

In a discussion with a member of the Wage and Hour Division staff, you stated that
Reserve Police Officers receive $17.31 per hour during the special assignments requested
by the Police Department. This hourly rate is equivalent to the entry level pay of a Police
Officer I employed in the Police Department. After two years of satisfactory service the
Reserve Police Officer may receive an hourly rate of $18.18, which is equivalent to the
entry level pay of a Police Officer II employed in the Police Department. Reserve Police
Officers are covered by the Police Department’s workers’ compensation and general
liability insurance policies. For the two-quarter period from October 2004 to March
2005, the LVS in question served as a Reserve Police Officer on paid special assignments
requested by the Police Department for a total of 20.5 hours. During the same time
period, the LVS performed 8 hours of unpaid volunteer Reserve Police Officer service.

The FLSA recognizes the generosity and public benefits of volunteering and does not
seek to impose unnecessary obstacles to bona fide volunteer efforts for charitable and
public purposes. The Department of Labor is committed to ensuring that citizens are able
to volunteer their services freely for charitable and public purposes within the legal
constraints established by Congress.

FLSA section 3(e)(4)(A)(i) provides that an individual who volunteers to perform
services for a public agency is not an employee if the individual receives no
compensation or is paid expenses, reasonable benefits or a nominal fee. In addition,
FLSA section 3(e)(4)(A)(ii) requires that the volunteer services cannot be the same type
of services that the individual is employed to perform for the agency. The regulations,
29
C.F.R. §§ 553.101-.103, in addition to the statutory requirements, indicate that
individuals are volunteers, not employees of a public agency, when they perform hours of
service for civic, charitable, or humanitarian reasons without promise, expectation, or
receipt of compensation for the services rendered and offer their services freely and
without pressure or coercion, direct or implied, from the employer. Under the
regulations, individuals can qualify as volunteers if they either volunteer to perform
services for a different agency or perform different services than they are employed to
perform for the same public agency.

In order to determine whether the LVS may perform volunteer duties as a Reserve Police
Officer for the Police Department, we assume, for discussion purposes, that the LVS
performs Reserve Police Officer duties for civic, charitable, or humanitarian reasons, and
offers his services freely, without pressure or coercion, direct or implied, from the
employer. For the volunteer arrangement to meet the criteria above, we must then
determine whether the LVS and Reserve Police Officer perform the “same type of

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services,” and whether the amounts paid the LVS for performing Reserve Police Officer
duties during special assignments requested by the Police Department constitute a
“nominal fee” under FLSA section 3(e)(4)(A)(i).

Determining whether the services volunteers seek to provide are the “same type of
services” they are employed to perform requires “consideration of all the facts and
circumstances in a particular case.” See 29 C.F.R. § 553.103(a). One factor considered
under the regulation is how the volunteered services and the services that the volunteer is
employed to perform are defined by the three digit categories of occupations in the
Dictionary of Occupational Titles (DOT), as supplemented by the O*NET system,
published by the Employment and Training Administration (ETA). Of equal weight to
the DOT/O*NET system, the Administrator of the Wage and Hour Division will consider
whether the volunteer services are “closely related to the actual duties performed or
responsibilities assigned to the [paid] employee.” See Wage and Hour Opinion Letter
FLSA2004-6 (July 14, 2004).

The O*NET description (copy enclosed) for duties performed by police officers under the
classification of “protective service occupations” are to “[m]aintain order, enforce laws
and ordinances, and protect life and property in an assigned patrol district. Perform
combination of following duties: patrol a specific area on foot or in a vehicle; direct
traffic; issue traffic summonses; investigate accidents; apprehend and arrest suspects, or
serve legal processes of courts.” O*NET §
33-3051.00. See also DOT 375.263-014
Police Officer I (copy enclosed). On the other hand, the LVS is a civilian employee of
the Crisis Unit of the Police Department. Civilian employees are not considered to be
engaged in law enforcement activities. See 29 C.F.R. § 553.211(g). Moreover, the job
duties and responsibilities of the LVS as described above are similar to the job duties
performed by social workers and counselors, which are classified under O*NET as
“community and social services occupations.” O*NET §
21-0000 (copy enclosed). See
also DOT 195.107-010 Caseworker, and DOT 195.367-018 Community Worker (copies
enclosed). The DOT/O*NET system does not regard a social worker and police officer
as being in the same job family and, thus, does not treat them as related occupations.

After reviewing the information you provided and the DOT/O*NET treatment of these
occupational categories, we believe that a LVS and Reserve Police Officer are not
providing the same or similar services. See Wage and Hour Opinion Letter September
17, 1999 (finding that work of juvenile counselor does not constitute same type of
services as work of reserve sheriff), nominal fee determination withdrawn by Wage and
Hour Opinion Letter
FLSA2005-51 (Nov. 10, 2005); Wage and Hour Opinion Letter
January 8, 2001 (concluding that youth services counselor employed by city police
department may participate in city’s reserve officer force) (copies enclosed). As
discussed below, however, it does not appear that the amounts paid to “volunteer”
Reserve Police Officers for work performed during special assignments for the Police
Department constitute a “nominal fee,” as defined by the statute and regulations.
Therefore, the special assignment work is not performed as a volunteer.

In enacting the 1985 FLSA Amendments, Congress sought to ensure that true volunteer
activities were neither impeded nor discouraged. Congress was explicit in its 1985
Amendments that a “volunteer” may receive “no compensation,” but may be paid

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“expenses, reasonable benefits, or a nominal fee.” 29 U.S.C. § 203(e)(4)(A)(i); see also
29 C.F.R. § 553.106(a) (“Volunteers may be paid expenses, reasonable benefits, a
nominal fee, or any combination thereof, for their service without losing their status as
volunteers.”); 29 C.F.R. § 553.106(e) (“individuals do not lose their volunteer status if
they receive a nominal fee from a public agency”). Neither the FLSA nor the Senate
Committee Report to the 1985 Amendments further defines the term “nominal fee.”
Rather, the Committee Report directed the Department to issue regulations providing
guidance in this area.

The regulations focus on preventing payment for performance, which is inconsistent with
the spirit of volunteerism contemplated by the FLSA. Thus, a fee would not be
considered nominal if it is, in fact, a substitute for compensation or tied to productivity.
See 29 C.F.R. § 553.106(e); see also Wage and Hour Opinion Letter FLSA2005-51 (Nov.
10, 2005) (“[T]he regulations are focused on preventing payment for performance, which
is inconsistent with the spirit of volunteerism . . . .”); Wage and Hour Opinion Letter
FLSA2004-6 (July 14, 2004) (“to the extent payments are tied to productivity (e.g.,
payment of hourly wages for services rendered) . . . there is a greater likelihood that such
fees are not nominal”). Generally, a key factor in determining if a payment is a
“substitute for compensation” or “tied to productivity” is “whether the amount of the fee
varies as the particular individual spends more or less time engaged in the volunteer
activities.” Wage and Hour Opinion Letter FLSA2005-51. If the amount varies, it may
be indicative of a substitute for compensation or tied to productivity and therefore not
nominal. See id.; see also 29 C.F.R. § 553.106(e). Whether the nature and structure of
payments made to individuals would result in their losing volunteer status is determined
by examining the total amount of payments made (expenses, benefits, and fees) in the
context of each particular situation. See 29 C.F.R. § 553.106(f); Wage and Hour Opinion
Letter
FLSA2002-4 (July 19, 2002).

We have opined that generally an amount not to exceed 20 percent of the total
compensation that the employer would pay someone for performing comparable services
would be deemed nominal. See Wage and Hour Opinion Letter FLSA2005-51. Thus, it
is our opinion that payment of $17.31 or $18.18 per hour for services performed by
Reserve Police Officers during special assignments, which corresponds respectively to
the entry level pay of a Police Officer I and Police Officer II employed by the Police
Department, cannot be considered a “nominal fee.” Therefore, the Police Department’s
practice of paying volunteer Reserve Police Officers hourly rates that are in excess of
what can be considered “nominal” under the FLSA creates an employment relationship.

A separate issue arises regarding whether the hours worked as an LVS must be combined
with the hours worked as a Reserve Police Officer in calculating the hours for which the
employee is entitled to overtime compensation. Under FLSA section 7(p)(2), where
employees of a public agency, solely at their option, work occasionally or sporadically on
a part-time basis for the same public agency in a different capacity from their regular
employment, the hours worked in the different jobs shall not be combined for the purpose
of determining overtime compensation due under the FLSA. As noted in
29 C.F.R. §
553.30(b), “[t]he term occasional or sporadic means infrequent, irregular, or occurring in
scattered instances.” As stated earlier, it is our opinion that employment as a Reserve
Police Officer is employment in a different capacity than an LVS. Furthermore, we

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believe that performing services as a Reserve Police Officer during paid special
assignments, which occurs an average of ten hours per quarter, may be deemed
“occasional or sporadic.” See Wage and Hour Opinion Letter December 6, 2001 (copy
enclosed). Therefore, if the provisions of section 7(p)(2) are met, the Police Department
would not have to combine the hours worked on both paid jobs for purposes of
computing overtime pay.

Finally, we note the general rule that if the LVS is employed part-time as a Reserve
Police Officer, he may not volunteer as a Reserve Police Officer for the same public
agency due to the FLSA’s prohibition against an individual being an unpaid “volunteer”
while performing the same type of services that the individual is employed to perform for
his employer. See 29 U.S.C. § 203(e)(4); Wage and Hour Opinion Letter
FLSA2005-32
(Sept. 9, 2005); Wage and Hour Opinion Letter August 19, 1994 (copy enclosed); Wage
and Hour Opinion Letter June 9, 1988 (copy enclosed); Wage and Hour Opinion Letter
September 12, 1985 (copy enclosed). However, where the compensated work of the part-
time Reserve Police Officer is performed only on an occasional or sporadic basis, the
Reserve Police Officer would be considered to be a paid Reserve Police Officer of the
Police Department only during workweeks when such special assignment work is
performed and, therefore, would retain his or her volunteer status during other
workweeks in which no compensated work is performed. If, however, the compensated
work of the part-time Reserve Police Officer occurs at regular intervals, or occurs on a
predictable basis, the part-time Reserve Police Officer would be precluded from
volunteering his or her services in the Reserve Police Officer corps in any workweek, as
he or she would be considered an employee in all workweeks. See Wage and Hour
Opinion Letter FLSA2005-32 (Sept. 9, 2005); Wage and Hour Opinion Letter June 9,
1988 (copy enclosed).

Therefore, based on an analysis of the information provided, it is our opinion that the
LVS may be employed, solely at the employee’s option, on a part-time basis as a Reserve
Police Officer during paid special assignments, which occur on an occasional or sporadic
basis, in accordance with FLSA section 7(p)(2) without needing to combine the hours
worked on a part-time basis with the hours worked in regular employment for purposes of
calculating entitlement to overtime. In order for the LVS who is employed on an
occasional and sporadic part-time basis as a Reserve Police Officer also to volunteer in
the Reserve Police Officer corps, he should be considered a paid Reserve Police Officer
during workweeks when he performs special assignments requested by the Police
Department and be ineligible to volunteer during those workweeks. The Police
Department may then terminate the LVS’s occasional and sporadic part-time employment
as a Reserve Police Officer at the conclusion of such special assignments and return him
or her to volunteer Reserve Police Officer status during other workweeks in which no
compensated work is performed, provided that the part-time Reserve Police Officer
position was not converted unilaterally by the Police Department to volunteer status in
order to avoid the minimum wage and overtime provisions of the FLSA. See Krause v.
Cherry Hill Fire Dist., 969 F. Supp. 270, 277-79 (D.N.J. 1997); Wage and Hour Opinion
Letter FLSA2005-32.

This opinion is based exclusively on the facts and circumstances described in your
request and is given based on your representation, express or implied, that you have

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provided a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of any other factual or
historical background not contained in your letter might require a conclusion different
from the one expressed herein. You have represented that this opinion is not sought by a
party to pending private litigation concerning the issues addressed herein. You have also
represented that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of Labor.

We trust that this letter is responsive to your inquiry.

Sincerely,

Alexander J. Passantino
Acting Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5
U.S.C. § 552(b)(7).