FLSA2006-2 — Code compliance officer who volunteers as a reserve police officer and section 3(e)(4)(A)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

January 13, 2006 FLSA2006-2

Dear Name*:

This is in response to your letter inquiring as to whether your Code Compliance Officer (CCO) may
continue to volunteer as a reserve police officer for your police department without violating the
minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA). We conclude that,
because the positions do not involve the same type of services, the CCO may volunteer as a reserve
police officer.

The CCO is a non-sworn position in the public safety department involving the administration,
implementation, and enforcement of city codes and regulations. Specifically, the employee helps
members of the public, agencies, and developers understand and comply with city land use
regulations, business license regulations, and sales tax regulations. The CCO coordinates land-use
activity with the City Planner. The CCO performs a variety of duties such as conducting site plan
reviews for compliance with setbacks uses, zoning, landscaping, and parking codes; recommending
approval or disapproval of plans or site plan modifications; monitoring records of approved plans for
periodic field checks of development permits and conditional use permits; investigating applications
for liquor license renewals and transfers; investigating code violations; issuing notices of violations;
and preparing reports. You have stated that the reserve police officer position is very similar to that
of a regular police officer except that the reserve officer has limited powers of arrest and certain
driving restrictions.

Under the FLSA, all employees not covered by an exemption must receive the federally mandated
minimum wage for every hour worked and time and a half for every hour over 40 worked in a week.
Section 3(e)(4)(A) of the FLSA, 29 U.S.C. § 203(e)(4)(A) (copy enclosed), provides an exception to
the definition of the term “employee” for “any individual who volunteers to perform services for a
public agency which is a State, a political subdivision of a State, or an interstate governmental
agency,” if:

i) the individual receives no compensation or is paid expenses, reasonable benefits, or a
nominal fee to perform the services for which the individual volunteered; and
ii) such services are not the same type of services which the individual is employed to
perform for such public agency.

Id. The Department of Labor’s regulations provide further guidance regarding the volunteer
exemption. See 29 C.F.R. §§ 553.100-.106 (copies enclosed). A volunteer is an individual who
performs services for “civic, charitable, or humanitarian reasons” without expectation of
compensation. 29 C.F.R. § 553.101(a). Additionally, volunteers must not be coerced or pressured
into “volunteering” their services. For purposes of this letter, we will assume that the CCO is not
being coerced or pressured into volunteering as a reserve police officer and that he volunteers for
civic, charitable or humanitarian reasons, because these issues were not addressed in your inquiry.

Because the CCO works as a regular employee of the agency in which he also volunteers, we must
determine whether his volunteer duties and the work he is employed to perform involve the “same
type of services.” Under the regulations, “same type of services” should be interpreted to prohibit an
employee from volunteering to perform work that is “similar or identical” to the type of work he is
employed to perform. 29 C.F.R. § 553.103(a). For guidance on this provision, the regulations point to
the Dictionary of Occupational Titles (DOT). Id.

The DOT has been supplemented by O*NET, a publication of the Employment and Training
Administration. The O*NET appears to encompass the CCO position within the classification of
either 13-1041.02- Licensing Examiners and Inspectors or 13-1041.04- Government Property
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

Inspectors and Investigators (copies enclosed). The lists of duties for these two job classifications
include the following job responsibilities similar to those included in your job description of the CCO:
Investigates regulated activities to detect violation of law; examines records, reports, and documents
to establish facts and detect discrepancies; testifies in court or at administrative proceedings;
prepares recommendations for administrative or legal authorities; advises licensees concerning
licensing and permit regulations; issues licenses to those meeting standards; and reports law or
regulation violations to appropriate boards and agencies. A position similar to the reserve police
officer position is found at 33-3051.01- Police Patrol Officers. O*NET describes police officer duties
as “[p]rovid[ing] for public safety by maintaining order, responding to emergencies, protecting people
and property, enforcing motor vehicles and criminal laws, and promoting good community relations,”
among other things. See O*NET OnLine Summary Reports (copy enclosed). Traditional police work
includes duties such as patrolling the city, keeping the peace, apprehending suspects, making
arrests, performing searches, and engaging in crowd control and traffic control. See WH Opinion
Letter May 22, 2001 (copy enclosed).

In addition to reviewing O*Net, the regulations state that in determining whether a volunteer’s duties
are the same type of service he performs in his employment, we must consider “all the facts and
circumstances in a particular case including whether the volunteer service is closely related to the
actual duties performed by or responsibilities assigned to the employee.” 29 C.F.R. § 553.103(a).
The primary responsibility of the CCO is administrating, implementing, and enforcing the city’s civil
codes and regulations. The CCO performs his responsibilities by interpreting and analyzing city
codes to ensure that members of the public are in compliance. The CCO also investigates and
enforces code violations. This type of work appears to be different from that performed by a reserve
police officer.

In WH Opinion Letter September 2, 1994 (copy enclosed), we addressed the issue of whether
various police department employees could volunteer as reserve police officers. We found that
employees such as police cadets and custodial aides could not volunteer as reserve police officers
because the positions involved similar work. However, we also found that “civilian” employees such
as dispatchers, clerks, secretaries, and mechanics could volunteer. We found that the custodial aide
was similar to the police officer position because the custodial aide performed duties similar to police
work such as taking custody of prisoners, booking prisoners, taking fingerprints, and securing
suspects and prisoners. These duties constitute “law enforcement” under 29 C.F.R. § 553.211(f). On
the other hand, the CCO position is more like the “civilian” positions than the police cadets and
custodial aides. The CCO does not perform “law enforcement” activities as defined by 29 C.F.R.
§ 553.211(a), but rather performs services similar to those positions described in 29 C.F.R.
§ 553.211(e), which do not qualify as law enforcement under the FLSA. We conclude, therefore, that
these two positions of CCO and reserve police officer do not involve the “same type of service.”
Because the two positions in question here are not the “same type of service,” it is our opinion that
the CCO may volunteer as a reserve police officer without receiving compensation.

This opinion is based exclusively on the facts and circumstances described in your request and is
given based on your representation, express or implied, that you have provided a full and fair
description of all the facts and circumstances that would be pertinent to our consideration of the
question presented. Existence of any other factual or historical background not contained in your
letter might require a conclusion different from the one expressed herein. You have represented that
this opinion is not sought by a party to pending private litigation concerning the issue addressed
herein. You have also represented that this opinion is not sought in connection with an investigation
or litigation between a client or firm and the Wage and Hour Division or the Department of Labor.
This opinion is issued as an official ruling of the Wage and Hour Division for purposes of the Portal-
to-Portal Act, 29 U.S.C. § 259. See 29 C.F.R. §§ 790.17(d), 790.19; Hultgren v. County of Lancaster,
913 F.2d 498, 507 (8th Cir. 1990).

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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

We trust that the above is responsive to your inquiry.

Sincerely,

Alfred B. Robinson, Jr.
Deputy Administrator

Enclosures: FLSA § 3(e)(4)
29 C.F.R. §§ 553.100-.106
29 C.F.R. § 553.211
WH Opinion Letters May 22, 2001 and September 2, 1994
O*Net Reports 13-1041.02, 13-1041.04, 33-3051.01

Note: * The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7)
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