January 2022 - Parks & Recreation - 29

follow strict rules with regard to
the performance of their duties,
such as not sitting while on duty.
They were not paid wages. They
were, however, offered discounted
rounds of golf if they worked
at least one shift of at least seven
hours per workweek. They also
were allowed to accept tips. A typical
greens fee for a paying customer
at Osprey Point was $96. Plaintiffs
were permitted to play for $5.
Between October 2016 and
November 2019, Plaintiff Gerald
Adams played approximately 31
discounted rounds of golf. Between
February 2019 and August 2019,
Plaintiff Michael Shaw played
approximately 43 discounted rounds
of golf. Between October 2016
and March 2020, Plaintiff Gerald
Kasmere played approximately 95
discounted rounds of golf.
At unspecified times prior to October
2020, Kasmere complained
several times to his supervisor
and other golf course officials employed
by the County that he was
not being paid cash wages for his
services,
which
violated
federal
and state wage laws. He was on furlough
in 2020 while Osprey Point
was closed due to the coronavirus
(COVID-19) pandemic. In October
2020, Kasmere met with a manager
from Osprey Point to discuss
returning there after the furlough
ended. The manager explained
that Osprey Point " needed workers
in the 'volunteer' positions because
some workers who had previously
been in those positions were unable
or unwilling to return to work because
of the pandemic. "
The manager further explained
that new pandemic-related policies
would prohibit Kasmere from
cleaning golf clubs or loading/
unloading golf bags. He also explained
that the tip jars were being
removed. Kasmere " complained
that removing the tip jars would
make it even harder on 'volunteers.' "
Kasmere " objected that it
was bad enough that the County
did not pay wages and obtained
free labor from its 'volunteers,'
who were entitled to wage payments. "
Kasmere was then told
" for the first time that no positions
were available. "
Motion to Dismiss
In response to the County's motion
to dismiss, the federal district court
acknowledged that it " must view
the well-pleaded factual allegations
in a claim in the light most favorable
to the non-moving party, " in
this case, the Plaintiffs. While assuming
" all the allegations in the
claim are true (even if doubtful in
fact), " the court noted " the factual
allegations must be enough to raise
a right to relief above the speculative
level. "
As cited by the court, the Supreme
Court had emphasized that
" to survive a motion to dismiss a
complaint must contain sufficient
factual matter, accepted as true, to
state a claim to relief that is plausible
on its face. " According to the
court, factually unsupported allegations
based " on information and
belief " are not entitled to the assumption
of truth. On a motion to
dismiss, the issue before the federal
district court was, therefore, whether
Plaintiffs had alleged sufficient
facts to plead a plausible claim for
compensation under the Fair Labor
Standards Act. (FLSA).
Fair Labor Standards Act
As described by the federal district
court, the FLSA " requires every
employer " to " pay to each of his
employees a minimum wage. " 29
U.S.C. § 206(a)(1). Further, " Employee "
is defined in the FLSA as
" any individual employed by an
employer. " 29 U.S.C. § 203(e)(1).
Within the context of the FLSA,
" 'Employ' includes to suffer or permit
to work. " 29 U.S.C. § 203(g).
In contrast to employees, the
FLSA implementing regulations
acknowledge: " Individuals who
are not employed in any capacity
by State or local government
agencies often donate hours of
service to a public agency for civic
or humanitarian reasons. " Moreover,
the court noted: " There are
no limitations or restrictions imposed
by the FLSA on the types
of services which private individuals
may volunteer to perform for
public agencies. "
Public Agency
Volunteer Exception
In particular, the federal district court
recognized: " There is an exception
for an individual who volunteers
to provide
services
for a public
agency which is a State, a political
subdivision of a State. " Under
the FLSA, this " Public Agency
Volunteer Exception " would apply
" if the
individual
receives
no
compensation or is paid expenses,
reasonable benefits, or a nominal
fee to perform the services for which
the individual volunteered. " Such
services, however, must not be " the
same type of services which the
individual is employed to perform
for such public agency. " 29 U.S.C. §
203(e)(4)(A). As cited by the court,
the FLSA implementing regulations
defined a " volunteer " as:
An individual who performs
PARK S ANDRECRE AT ION . OR G | J ANUAR Y 2 0 22 | Parks & Recreation
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January 2022 - Parks & Recreation

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