David Adams, et al. v. Palm Beach County

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11065
____________________
DAVID ADAMS,
MICHAEL SHAW,
GERALD KASMERE,
on behalf of themselves and others similarly situated,
Plaintiffs-Appellants,
versus
PALM BEACH COUNTY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:21-cv-80127-BER
____________________
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2 Opinion of the Court 23-11065
Before WILLIAM PRYOR , Chief Judge, and J ILL PRYOR and MARCUS,
Circuit Judges.
WILLIAM PRYOR , Chief Judge:
This appeal requires us to decide whether golf attendants who
provided services at Palm Beach County golf clubs in exchange for
discounted golf were “employees” under the Fair Labor Standards
Act, see 29 U.S.C. § 203(e). David Adams, Gerald Kasmere, and Mi-
chael Shaw seek to represent a class of bag-drop attendants, driv-
ing-range attendants, and course rangers at County-owned world-
class golf clubs. The attendants allege that the County’s use of their
services violated the minimum-wage and anti-retaliation provi-
sions of the Act, id. §§ 206, 215(a)(3), and the Florida Minimum
Wage Act and the Florida Constitution, FLA. S TAT. § 448.110; F LA.
C ONST. art. X, § 24. The district court dismissed the attendants’
complaint because it concluded that the attendants were public-
agency volunteers and not employees under the Act and Florida
law. We affirm.
I. BACKGROUND
David Adams, Gerald Kasmere, and Michael Shaw served as
golf attendants at the Osprey Point Golf Club, a “world-class” golf
club owned by Palm Beach County. The County owns four such
clubs, which it operates for profit. The attendants responded to a
County Parks and Recreation Department advertisement seeking
“volunteers” to perform services in exchange for discounted golf,
among other benefits. The advertisement states, “Volunteers
Needed”; explains that “[v]olunteers serve as course rangers,
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23-11065 Opinion of the Court 3
driving range attendants and bag drop attendants”; and promotes
that “Osprey Point volunteers enjoy being outdoors, getting to
know others with similar interests and reduced fees to play and
practice golf.”
The attendants performed services including greeting custom-
ers; carrying and loading customers’ golf clubs; cleaning balls,
clubs, and carts; retrieving carts from and returning carts to cart
barns; patrolling the range and policing the pace of play; raking
sand traps and filling divots; collecting trash; and retrieving balls
from the driving range. Attendants were not allowed to choose
their duties and were required to follow specific service rules,
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4 Opinion of the Court 23-11065
including not sitting while on duty. According to the attendants,
their services “enhance[d] the value of the golfing experience,”
were “essential to attract customers,” and were “integral to the op-
eration” of the County’s clubs. Privately owned golf clubs must pay
wages to attendants providing comparable services.
The County treated attendants as volunteers. Attendants were
allowed to accept tips but were neither promised nor paid wages.
But attendants who worked at least one seven-hour shift a week
were promised “unlimited” rounds of golf at substantially dis-
counted rates, limited to certain days, times, and locations. The
County typically charged $96 for a round of golf at Osprey Point,
but eligible volunteers could play for only $5. The County offered
similar discounts to volunteers at its other courses. The attendants
calculate that someone who worked the required seven hours a
week, and who played five rounds of golf a week, could receive
$23,660 in savings a year (or $65 an hour worked).
The attendants participated in the County program for multi-
ple years: Adams provided services for almost four years, Kasmere
for over four years, and Shaw for over seven years. All three availed
themselves of the benefit of reduced golf fees. The complaint pro-
vides information on the attendants’ use of their discounts over
only specific time periods. It explains that from October 2016
through November 2019, Adams received 31 discounted rounds of
golf amounting to $2,821 in savings, for an average value of $890 a
year or $74 a month. From October 2016 through March 2020, Kas-
mere received 95 discounted rounds of golf amounting to $8,645 in
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23-11065 Opinion of the Court 5
savings, for an average value of $2,470 a year or $206 a month. And
from February through August 2019, Shaw received 43 discounted
rounds of golf amounting to $3,913 in savings, for an average value
of $559 a month.
Kasmere was furloughed during the Covid–19 pandemic and
attempted to return to Osprey Point in October 2020. The Osprey
Point manager told Kasmere that the club “needed” attendants to
return because “some workers who had previously been in those
positions were unable or unwilling to return to work because of
the pandemic.” The manager also explained that, as part of the
club’s Covid policies, attendants would no longer clean golf clubs
or load customers’ golf bags, and tip jars would be removed. But
when Kasmere complained that removing the tip jars “would make
it even harder” on the attendants, the manager informed Kasmere
that no positions were available.
The attendants filed a putative class action. The operative com-
plaint alleges violations of the minimum-wage provision of the Fair
Labor Standards Act, 29 U.S.C. § 206, (count I); the Florida Mini-
mum Wage Act and Florida Constitution, F LA . S TAT. § 448.110;
F LA . CONST. art. X, § 24, (count II); and (as to Kasmere only) the
anti-retaliation provision of the Fair Labor Standards Act, 29 U.S.C.
§ 215(a)(3), (count III). The district court dismissed the complaint
for failure to state a claim because it concluded that the attendants
were public-agency volunteers not covered under the federal Act
or Florida law. We dismissed an earlier appeal for lack of jurisdic-
tion because the district court failed to address the claims of
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6 Opinion of the Court 23-11065
additional opt-in plaintiffs, Adams v. Palm Beach County, No. 21-
13825, 2022 WL 17246908, at *3 (11th Cir. Nov. 28, 2022), and on
remand, the district court dismissed as to the opt-in plaintiffs for
the reasons stated in its previous order.
II. STANDARD OF REVIEW
We review de novo a dismissal for failure to state a claim, ac-
cepting the allegations in the complaint as true and construing
them in the light most favorable to the plaintiff. Ounjian v. Glo-
boforce, Inc., 89 F.4th 852, 857 (11th Cir. 2023). We limit our consid-
eration to the pleadings and the attached exhibits. GSW, Inc. v. Long
County, 999 F.2d 1508, 1510 (11th Cir. 1993).
III. DISCUSSION
An individual must be an “employee” under the Fair Labor
Standards Act to be protected by its minimum-wage and anti-retal-
iation provisions. See 29 U.S.C. §§ 206(a), 215(a)(3). The Act defines
an “employee” as “any individual employed by an employer,” id.
§ 203(e)(1), and it defines “employer” as “any person acting directly
or indirectly in the interest of an employer in relation to an em-
ployee,” including a public agency, id. § 203(d). The touchstone of
the employee inquiry is one of “economic reality.” Tony & Susan
Alamo Found. v. Sec’y of Lab., 471 U.S. 290, 301 (1985) (citation and
internal quotation marks omitted).
The Act exempts a public-agency volunteer from its definition
of employee:
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23-11065 Opinion of the Court 7
The term “employee” does not include any individual
who volunteers to perform services for a public
agency . . . if—
(i) the individual receives no compensation or is paid
expenses, reasonable benefits, or a nominal fee . . .;
and
(ii) such services are not the same type of services
which the individual is employed to perform for such
public agency.
29 U.S.C. § 203(e)(4)(A). Whether an individual is a volunteer or an
employee “is a matter of law to be determined by the court.” E.g.,
Purdham v. Fairfax Cnty. Sch. Bd., 637 F.3d 421, 428 (4th Cir. 2011);
see also Castillo v. Givens, 704 F.2d 181, 185 (5th Cir. 1983).
The Act does not define “volunteer.” But Department of Labor
regulations provide that a volunteer is an “individual who performs
hours of service for a public agency for civic, charitable, or human-
itarian reasons, without promise, expectation or receipt of com-
pensation for services rendered.” 29 C.F.R. § 553.101(a). An indi-
vidual need “only be motivated in part” by civic or charitable rea-
sons to qualify as a volunteer. McKay v. Miami-Dade County, 36 F.4th
1128, 1138 (11th Cir. 2022) (emphasis added). And we agree with
our sister circuits that the regulatory definition should be applied
“in a commonsense manner, which takes into account the totality
of the circumstances surrounding the relationship between the in-
dividual providing services and the entity for which the services are
provided.” Purdham, 637 F.3d at 428 (citation and internal
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8 Opinion of the Court 23-11065
quotation marks omitted); see also Cleveland v. City of Elmendorf, 388
F.3d 522, 528 (5th Cir. 2004) (we review “the objective facts sur-
rounding the services performed to determine whether the totality
of the circumstances” establishes volunteer status).
To determine whether the public-agency volunteer exemption
applies, we must evaluate whether the attendants fall under the
statutory definition because they served a public agency and re-
ceived either “no compensation” or only “expenses, reasonable
benefits, or a nominal fee” for their services. 29 U.S.C.
§ 203(e)(4)(A)(i). We must also evaluate whether the attendants fall
under the regulations, by being at least “in part” motivated by
“civic, charitable, or humanitarian reasons, without promise, ex-
pectation or receipt of compensation.” McKay, 36 F.4th at 1137
(quoting 29 C.F.R. § 553.101(a)). We exercise common sense and
consider the totality of facts and circumstances when applying the
regulatory definition. See City of Elmendorf, 388 F.3d at 528.
No party disputes that the attendants served a public agency,
so we proceed in two parts. First, we explain that the attendants
received discounted rounds of golf as “reasonable benefits” for
their services. See 29 U.S.C. § 203(e)(4)(A)(i). Second, we explain
that the attendants did not perform services for the “promise, ex-
pectation or receipt” of employee compensation, see 29 C.F.R.
§ 553.101(a), because they applied for “volunteer” positions adver-
tised to provide only “being outdoors, getting to know others with
similar interests and reduced fees to play and practice golf” as ben-
efits. We conclude that the attendants are not employees and
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23-11065 Opinion of the Court 9
cannot state a minimum-wage or anti-retaliation claim under the
Act or Florida law.
A. The Attendants are Statutory Volunteers Who Received Only
“Reasonable Benefits” for Their Services.
The attendants are public-agency volunteers because they re-
ceived discounted golf as “reasonable benefits”—not inadequate
compensation—for their services. See 29 U.S.C. § 203(e)(4)(A)(i).
The attendants argue that they were employees who worked for
“compensation,” but less than minimum wage, in the form of thou-
sands of dollars of golf discounts. We disagree. Reduced fees on
golf did not trigger the loss of the attendants’ volunteer status.
Whether benefits cause the loss of volunteer status “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(f). Likewise, the Su-
preme Court has required us to anchor to “economic reality” when
asking if an individual is an employee protected by the Act. See Al-
amo, 471 U.S. at 301 (citation and internal quotation marks omit-
ted). The Act instructs us to evaluate only the benefits that the at-
tendants actually received. 29 U.S.C. § 203(e)(4)(A)(i) (volunteer
exemption turns on what an individual “receives” or “is paid”).
Reduced-fee access to a world-class golf club was not, as a mat-
ter of economic reality, anything more than a perk for the attend-
ants’ volunteer services. See Alamo, 471 U.S. at 301. Adams, Kas-
mere, and Shaw applied for positions plainly advertised as “volun-
teer” positions, with no mention of wages or cash payment. The
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10 Opinion of the Court 23-11065
only pecuniary benefits that the attendants were promised or re-
ceived were reduced fees for golf and the opportunity to receive
tips from customers during some period that they served as attend-
ants. To be sure, the Supreme Court has held that in-kind benefits
may constitute “wages in another form,” which qualify as compen-
sation under the Act. See Alamo, 471 U.S. at 293. But the Alamo
Court was referring to “food, shelter, clothing, transportation and
medical benefits”—in other words, goods and services that could
substitute for wages “under the economic reality test of employ-
ment.” Id. (citation and internal quotation marks omitted). Re-
duced fees on rounds of golf—an inherently recreational activity—
are hardly analogous. And the monthly value of the attendants’
savings was minimal: over the periods specified in the pleadings,
Adams received 31 discounted rounds of golf valued at $2,821 in
savings, or about $74 a month; Kasmere received 95 discounted
rounds of golf valued at $8,645 in savings, or about $206 a month;
and Shaw received 43 discounted rounds of golf valued at $3,913 in
savings, or about $559 a month. Cf. Purdham, 637 F.3d at 434 (yearly
stipends of $2,114 and $2,073 did not cause loss of golf coach’s vol-
unteer status).
B. The Attendants are Volunteers under the Regulations.
The attendants assert that they were not volunteers under the
regulations for two reasons. First, they argue that they did not en-
gage in services traditionally associated with volunteerism. The
County replies that their services did provide civic benefits for the
County’s residents. Second, the attendants argue that the district
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23-11065 Opinion of the Court 11
court erred by relying on the attendants’ lack of expectation of
compensation. The County replies that the district court correctly
applied an “objective reasonableness” test—the attendants were
not promised and could not reasonably have expected any com-
pensation. The County is correct on both points.
The regulations define a volunteer as an individual who serves
for “civic, charitable, or humanitarian reasons, without promise,
expectation or receipt of compensation for services rendered.” 29
C.F.R. § 553.101(a). The regulations provide the following exam-
ples of volunteer activities:
[I]ndividuals may volunteer as firefighters or auxiliary
police, or volunteer to perform such tasks as working
with retarded or handicapped children or disadvan-
taged youth, helping in youth programs as camp
counselors, soliciting contributions or participating in
civic or charitable benefit programs and volunteering
other services needed to carry out charitable or edu-
cational programs.
Id. § 553.104(b). But the regulations also state that there “are no
limitations or restrictions imposed by the [Act] on the types of ser-
vice which private individuals may volunteer to perform for public
agencies.” Id. § 553.104(a).
The attendants argue that their activities were “qualitatively
different” from the examples of volunteerism listed in the regula-
tions, and that they did not work to “improve their community or
the lives of its residents.” But the regulations do not limit the kinds
of activities that qualify as volunteer services. Id. Nor do the
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12 Opinion of the Court 23-11065
attendants dispute that public golf courses provide County citizens
with “civic” benefits. See McKay, 36 F.4th at 1137. For example, mu-
nicipalities traditionally maintain public parks and outdoor recrea-
tional facilities to enhance “health and quality of life” in the com-
munity; public courses are a more affordable “gateway” option for
golf newcomers; and the County maintained a teaching facility that
introduced newcomers to golf. The attendants also acknowledge
that their services were crucial to the County’s ability to maintain
golfing courses for the public: the attendants were “essential to at-
tract customers” and were “integral to the operation” of the course.
So by their own admission, the attendants chose to serve in posi-
tions that they knew were crucial to providing civic benefits to
County citizens.
The regulations also provide that any “promise, expectation or
receipt of compensation for services rendered” precludes the find-
ing that an individual is a public-agency volunteer. 29 C.F.R.
§ 553.101(a). But the receipt of “reasonable benefits” does not qual-
ify as the receipt of compensation. Id. § 553.106(a). And any “expec-
tation” of compensation must be “objectively reasonable.” Brown
v. N.Y.C. Dep’t of Educ., 755 F.3d 154, 166 (2d Cir. 2014). To find
otherwise would allow individuals to “wish themselves (however
unreasonably) into being owed . . . wages, despite the (reasonable)
belief of public agencies that they were accepting volunteered ser-
vices.” Id.
The district court correctly ruled that the attendants were not
promised, could not have reasonably expected, and did not receive
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23-11065 Opinion of the Court 13
any “compensation” for their services. As we have explained, the
attendants were not promised and did not receive “compensation”
because reduced golf fees are not “wages in another form” under
any economic reality. See Alamo, 471 U.S. at 293. Nor did the at-
tendants have an objectively reasonable expectation of compensa-
tion. The County’s advertisement, featuring benefits like “being
outdoors, getting to know others with similar interests and re-
duced fees to play and practice golf,” could not be objectively con-
strued as a promise of payment for work. The County unequivo-
cally advertised the position to volunteers. Not even the attendants
assert that they were promised wages. And Adams, Kasmere, and
Shaw remained with the County program, under its terms, for
nearly four, over four, and over seven years, respectively. We agree
with the district court that it is unreasonable “to expect wages
when you sign up for a position advertised for volunteers” and then
“do not receive wages for an extended period of time.”
The district court did not err. The attendants were not “em-
ployees” under the Act. And the attendants’ Florida law claims fail
because the Florida Act must be interpreted “as consistent with”
the federal Act. Llorca v. Sheriff, Collier Cnty., 893 F.3d 1319, 1328
(11th Cir. 2018) (“Only those individuals entitled to receive the fed-
eral minimum wage under the federal Fair Labor Standards Act and
its implementing regulations shall be eligible to receive the state
minimum wage pursuant to [the Florida Constitution] and [the
Florida Minimum Wage Act].” (quoting F LA. S TAT. § 448.110(3))).
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14 Opinion of the Court 23-11065
IV. CONCLUSION
We AFFIRM the judgment in favor of Palm Beach County.
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