“Paying” Volunteers in Perks 

By Allison Sues, JD, Senior Employment Law Counsel
Published April 2, 2024

The Eleventh Circuit recently issued a decision that sheds light on the question of whether a public agency transforms volunteers into employees under the Fair Labor Standards Act (FLSA) when it provides benefits associated with the volunteering. 

In Adams v. Palm Beach County, a golf club owned by Palm Beach County sought volunteers to serve as course rangers, driving range attendants, and bag drop attendants. The volunteer position advertisement noted that volunteers “enjoy being outdoors, getting to know others with similar interests, and reduced fees to play and practice golf.” The County allowed volunteers who served at least seven hours per week to play “unlimited” rounds of golf at a substantially discounted rate – volunteers paid only $5 per round whereas other golfers are typically charged $96 per round. Three golf course attendants who worked as volunteers filed a class action alleging minimum wage violations under the FLSA. 

Because the FLSA only protects employees, a key question in the litigation was whether these golf course attendants constituted employees. The FLSA exempts public agency volunteers from its definition of an employee if (i) the individual receives no compensation or only expenses, reasonable benefits, or a nominal fee, and (ii) the individual provides such services that are not the same type of services performed by employees of the public agency. U.S. Department of Labor regulations further state that a “volunteer” is 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.” This regulation has since been analyzed by courts to mean that a volunteer need only be motivated in part by civic or charitable reasons to qualify as a volunteer.

The Court held that these attendants did not qualify as employees for two reasons. First, the attendants were not compensated for their services. It is possible for volunteers to be compensated with such essential and significant benefits that they constitute “wages in another form.” These types of benefits usually entail food, shelter, clothing, transportation, or medical benefits. However, the Court reasoned that reduced golf fees were more on par with “a perk for volunteer services” than “wages in another form.” The reduced golf fees were recreational in nature and of moderate value when assessing how much each attendant saved in golfing expenses over the years of the service as an attendant. 

Second, the Court held that the attendants were not promised and could not have reasonably expected compensation for their services. The posting for the attendant roles clearly indicates that the position was voluntary and unpaid and includes a recreational benefit only. The attendants served at the golf course for years without receiving wages, further confirming that they had no expectation of earning a wage in the role. 

As a takeaway from this case, public sector employers utilizing volunteers should take the following precautions to ensure that the volunteers are not deemed “employees” under the FLSA: 

• Make sure that any posting for volunteer services clearly indicates that the role is unpaid.
• Do not accept volunteers to serve in identical roles held by employees. 
• Exercise moderation when providing benefits to volunteers to ensure that the benefit is deemed a reasonable perk rather than a wage in another form. 

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