No FLSA salary for public agency volunteer

The Fair Labor Standards Act is the reason you get paid for your work every day. But not everyone gets paid. Volunteers are not covered under FLSA. In this case, the plaintiff did work for the New York City Board of Education but was not paid for it. He loses in the Court of Appeals.

The case is Brown v. New York City Board of Education, decided on June 18. Brown was given a "volunteer internship," which he fulfilled for three years. In this capacity, he mentored students five days a week on a full time schedule. During this time, he was turned down for paid positions at the school. In this lawsuit, he claims the defendant failed to pay him a salary in violation of FLSA. The Court of Appeals (Raggi, Pooler and Wesley) holds that Brown was a public agency volunteer and thus falls outside FLSA's salary protections.

The question whether someone is a public agency volunteer is a matter of law, the Court of Appeals says. The jury does not get to decide this. The Court of Appeals surveys this heavily-regulated area of labor law, noting that while FLSA has narrow exceptions to the pay requirements, Congress did  not want to discourage volunteer work for "civic, charitable or humanitarian purposes." Brown handled humanitarian work at the school. The Court of Appeals rejects his argument that the volunteer exemption kicks in only when humanitarian work is the sole reason for the humanitarian work. Quoting from the great Benjamin Cardozo, the Second Circuit philosophically notes that "human actions are frequently informed by multiple reasons." "Thus, a person may provide a public agency with free services for genuine civic, charitable or humanitarian reasons, at the same time that he acts for a variety of personal reasons, e.g., to secure community approbation, to make amends for unrelated wrongs, to fill idle time, to meet new people, or -- as in Brown's case -- to improve one's resume."

Finally, Brown argues that he was promised but denied compensation for his work. The regulations preclude the "promise, expectation or receipt of compensation for services rendered." Brown was not really promised any salary. He was told that the school would search the budget to make payment possible. Although he worked 40 hours per week, Brown also did not reasonably expect any payment. "Few people voluntarily work such long hours for so extensive a period without expecting compensation." And while Brown received some cash and benefits (subway fair, lunches) along the way, under the "economic realities" test, this does not mean he was entitled to regular pay. Again, Brown was a volunteer as a matter of law, and the school did him a favor in bringing him aboard for the work experience, albeit as a volunteer, and these were nominal "payments."