January 2022 - Parks & Recreation - 30

LAW REVIEW
hours of service for a public
agency for civic,
humanitarian
charitable, or
reasons, without
promise, expectation or receipt
of compensation for services
rendered, is considered to be a
volunteer during such hours. 29
C.F.R. § 553.101(a).
Such individuals are considered
volunteers and not employees of
such public agencies if their hours
of service are provided with no
promise expectation, or receipt of
compensation for the services rendered,
except for reimbursement
for expenses, reasonable benefits,
and nominal fees, or a combination
thereof....
In this case, the County had
argued Plaintiffs were not
" employees " under the FLSA
because " the right to play
golf at a reduced fee is not
'compensation' under the FLSA. "
Whether the furnishing of expenses,
benefits or fees would result
in individuals losing their status
as volunteers under the FLSA can
only be determined by examining
the total amount of payments
made (expenses, benefits, fees) in
the context of the economic realities
of the particular situation. 29
C.F.R. § 553.106.
Further, the court noted the
FLSA regulatory definition of
" volunteer " must be " applied in
a common-sense way that takes
into account the totality of the
circumstances surrounding the
relationship between the person
providing services and the
entity for which the services are
provided, in light of the goals of
30 Parks & Recreation |
the FLSA. " In so doing, the federal
district court would look " at the
objective facts surrounding the
services performed to determine
whether the totality of the
circumstances supports a holding
that, under the statute and under
the
regulations,
the
regulars are volunteers. "
Objectively Reasonable
Expectations
In this case, the County had argued
Plaintiffs were not " employees "
under the FLSA because " the right
to play golf at a reduced fee is not
'compensation' under the FLSA. "
In the alternative, the County
claimed the right to play golf as a
reduced fee was a " reasonable benefit "
for volunteers under the FLSA.
In addition, the County maintained
" Plaintiffs did not have an objectively
reasonable expectation of wages
or the equivalent. " In response,
Plaintiffs contended " each round
of golf was in-kind compensation
worth approximately $91. "
For purposes of the motion to
dismiss, viewing the allegations in
the complaint in a light most favorable
to Plaintiffs, the federal district
court found Plaintiffs'
subjective
belief that they should be paid wages
for their services was " not objectively
reasonable. " In so doing, the
court noted " the positions they accepted
at Osprey Point were clearly
and unequivocally advertised as
volunteer positions " :
The job posting does not mention
wages. The job posting also
listed discounted golf as something
the volunteer could " enjoy, "
equivalent to being outdoors and
getting to know others with similar
interests, neither of which
is akin to compensable wages. A
J ANUAR Y 2 0 22 | PARK S ANDRECRE AT ION . OR G
non-paid
person seeing that posting would
not reasonably conclude that wages
would be paid.
Moreover, in the opinion of the
court, " working as a ranger or cart
attendant at a public golf course
is akin to other positions that are
amenable to volunteerism, " as described
in the FLSA regulations. 29
C.F.R. § 553.104(b).
In this particular case, the court
also found " nothing inherent
about the job or job duties that
would reasonably suggest that
wages necessarily would be paid. "
On the contrary, in the opinion of
the court, it was " not objectively
reasonable to expect wages when
you sign up for a position advertised
for volunteers, that can be
performed by volunteers, then do
not receive wages for an extended
period of time. " Under such circumstances,
the court held: " The
only objectively reasonable conclusion
from those facts is that you
have accepted a volunteer position
that pays no wages. " As characterized
by the court: " Plaintiffs'
argument to the contrary borders
on frivolous. "
Reasonable Benefit
Further, examining " the totality of
the relationship between Plaintiffs
and the County, " the federal district
court determined " the ability
to play golf at a reduced fee was a
reasonable benefit that was consistent
with the economic realities of
the particular situation. "
Plaintiffs had argued the " reasonable
benefit exception does not
apply because the record does not
support a finding that discounted
rounds of golf are 'commonly and
traditionally' provided to public
agency volunteers. " The federal
January 2022 - Parks & Recreation

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