2001-02-28 CC Handouts - Laserfiche WebLink

Home Browse Search

~553.1 00 that individuals performing volunteer serVices for units of State and local governments will not be regarded as "employees" under the statute. The purpose of this subpart is to define the circumstances under which individuals may perform hours of volunteer serv- ice for units of State and local govern- ments without being considered to be their employees during such hours f9r purposes oUhe FLSA. ~ 553.101 "Volunteer" defined. (a) An 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, is considered to be a volun- teer during such hours. Individuals performing hours of service for such a public agency will be considered volun- teers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4) (A) and (B) of the FLSA and the guidelines in this subpart. (b) Congress did not intend to dis- courage or impede volunteer activities undertaken for civic, charitable. or hu- manitarian purposes, but expressed its wish to prevent any manipulation or abuse of minimum wage or overtime requirements through coercion or undue pressure upon individuals to "volunteer" their services. (c) Individuals shall be considered volunteers only where their service~ are offered freely and without pres- sure or coercion, direct or implied, from an employer. (d) An individual shall not be consid- ered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer. ~ 553.102 .Employment by the same public agency. (a) Section 3(e)(4)(A)(ii) of the FLSA does not permit an individual to perform hours of volunteer service for a public agency when such hours in- volve the same type of services' which the individual is employed to perform for the same public agency. (b) Whether twi> agencies of the same State or local government consti- tute the same public agency can only be determined on a case-by-case basis. One factor that would support a con- clusion that two agencies are separate is whether they are treated separately for statistical purposes in the Census of Governments issued by the Bureau of the Census, U.S. Department of Commerce. 11553.103 "Same type of services" defined. (a) The 1985 Amendments provide that employees may volunteer hours of service to their public employer or agency provided "such services are not the same type of services which the in- dividual is employed to perform for such public agency." Employees may volunteer their services in one capac- \ ity or another without contemplation of pay for services rendered. The phrase "same type of services" means similar or identical services. In gener- al, the Administrator will consider, but not as the only criteria, the duties and other factors contained in the defini- tions of the 3-digit categories of occu- pations in the Dictionary of Occupa- tional Titles in determining whether the volunteer activities constitute the "same type of services" as the employ- ment activities. Equally important in such a determination will be the con- sideration of all the facts and circum- stances in a particular case, including whether the volunteer service is close- ly related to the actual duties per- formed by or responsibilities assigned to the employee. (b) An example of an individual per- forming services which constitute the "same type of services" is a nurse em. ployed by :J. State hospital who pro- poses to volunteer to. perform nursing services at a State-operated health clinic which does not qualify as a sepa. rate public agency as discussed in ~ 553.102. Similarly, a firefighter cannot volunteer as a firefighter for the same public agency. (c) Examples of volunteer services which do not constitute the "same type of services" include: A city police officer who volunteers as a part-time referee in a basketball league spon. sored by the city; an employee of the city parks department who serves as a volunteer city firefighter; and an office employee of a city hospital or other health care institution who vol. unteers to spend time with a disabled or elderly person in the same institu. tion during off duty hours as an act of charity. ~ 553.104 Private individuals who volun. teer services to public agencies. (a) Individuals who are not em- ployed in any capacity by State 0: Ioca: government agencies ofter, donate hours of service to a public agency for civic or humanitarian rea- sons. Such individuals are considered volunteers and not employees of such public agencies if their hours of servo ice are provided with no promise ex. pectation, or receiPt of compensation for the services rendered, except for reimbursement for expenses, reasona- ble benefits, and nominal fees, or a combination thereof, as discussed in ~ 553.106. There are no limitation" or restrictions imposed by the FLSA on the types of services which private in- dividuals may volunteer to perform for public agencies. (b) Examples of services which might be performed on z. volunteer basis when so motivated include help- ing out in a sheltered workshop or providing personal services to the sick or the elderly in hospitals or nursing homes; assisting in a school library or cafeteria: or driving a school bus to carry a football team or band on a trip. Similarly, individuals may volun- teer as firefighters or auxiliary police, or volunteer to perform such tasks as 7 working with retarded or handicapped children or disadvantaged youth, help- ing in youth programs as camp coun- selors, soliciting contributions or par- ticipating in civic or charitable benefit programs and volunteering other serv- ices needed to carry out charitable or educational programs. [52 FR 2032, Jan. 16, 1987: 52 FR 2648, Jan. 23, 1987J ~ 553.105 Mutual aid agreements. An agreement between two or more States, political subdivisions, or inter- state governmental agencies for mutual aid does not change the other- wise volunteer character of services performed by employees of such agen- cies pursuant to said agreement. For example, where Town A and Town B have entered into a mutual aid agree- ment related to fire protection, a fire- fighter employed by Town A who also is a volunteer firefighter for Town B will not have his or her hours of vol- unteer service for Town B counted as part of his or her hours oi employ- ment with Town A. The mere fact that services volunteered to TOVv-n B may in some instances involve performance in Town A's geographic jurisdiction does not require that the volunteer's hours are to be counted as hours of employ- ment with Town A. !l 553,106 Payment of expenses, benefits, or fees. (a) Volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers. (b) An individual who performs hours of service as a volunteer for a public agency may receive payment for expenses without being deemed an employee for purposes of the FLSA. A school guard does not become an em- ployee because he or she receives a uniform allowance, or reimbursement for reasonable cleaning expenses or for wear and tear on personal clothing worn while performing hours of volun- teer service. (A uniform allowance must be reasonably limited to relieving the volunteer of the cost of providing or maintaining a required uniform from personal resources.) Such indi- viduals would not lose their volunteer status because they are reimbursed for the approximate out-of-pocket ex- penses incurred incidental to pro"iding volunteer services, for example. pay- ment for the cost of meals and trans- portation expenses. (c) Individuals do not lose their status as volunteers because they are reimbursed for tuition, transportation and meal costs involved in their at- tending classes intended to teach them to perform efficiently the services they provide or will provide as volun- teers. Likewise, the volunteer status of such individuals is not lost if they are provided books, supplies, or other ma- terials essential to their vollmteer training or reimbursement for the cost thereof.