FLSA2006-38 — Firefighters who switch from part-time employees to volunteers and section 3(e)(4)(A)

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

FLSA2006-38

September 29, 2006

Dear Name*:

This is in response to your request for an opinion concerning the application of the Fair Labor
Standard Act (FLSA) to firefighters who wish to switch from part-time employee status to
volunteer status.

In a conversation with a member of my staff, your office advised that the Fire Protection
District (District) employs part-time paid firefighters who work 8 to 16 hours per week, in
addition to other individuals who volunteer their time. These part-time firefighters are paid
$6.75 per hour and also work other part-time jobs in the community. Some of them eventually
obtain full-time employment in fields other than firefighting and wish to continue their service
with the fire department as volunteers.

The FLSA recognizes the generosity and public benefits of volunteering and does not pose
obstacles to bona fide volunteer efforts for charitable and public purposes except in very
narrow circumstances. With the 1985 FLSA amendments, Congress sought to ensure that true
volunteer activities were neither impeded nor discouraged, while at the same time minimizing
the potential for abuse or manipulation of the FLSA’s minimum wage and overtime
requirements through coercion or undue pressure on individuals to “volunteer” their services.

In this regard, an individual who performs hours of service for a public agency for civic,
charitable, or humanitarian reasons, without promise, expectation, or receipt of compensation
for the services rendered, is considered to be a volunteer during those hours. See 29 C.F.R.
§ 553.101(a).
1
Under the legislative compromise that Congress reached in the 1985 FLSA
amendments, however, an individual is not considered a volunteer if the individual is otherwise
employed by the same public agency to perform the same type of services as those for which
the individual proposes to volunteer. This limitation is found in the statutory definition of
“employee.” 29 U.S.C. § 203(e)(4)(A)(ii). Therefore, under the FLSA an employee of a public
agency may volunteer without restriction to perform the same type of service for a different
public agency, or may volunteer without restriction to perform a different type of service for
the same public agency that employs him or her.

The FLSA and its implementing regulations do not prelude a firefighter who terminates part-
time employment with a public agency from later assuming a volunteer firefighter position,
provided that the firefighter:

1. Was not converted unilaterally by the employer to volunteer status in order to avoid the
minimum wage provisions or overtime protection of the FLSA, see Krause v. Cherry
Hill Fire Dist., 969 F. Supp. 270, 277-79 (D.N.J. 1997);

1
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in this letter
can be found at www.wagehour.dol.gov.

2. Serves as a volunteer for civic, charitable, or humanitarian reasons without promise,
expectation, or receipt of compensation, although expenses, reasonable benefits, or a
nominal fee may be provided;
3. Offers service freely and without coercion, direct or implied, from the agency; and
4. Is not otherwise employed by the same public agency to provide the same services for
which he or she volunteers.

See 29 C.F.R. § 553.101. These criteria should be applied on an individual basis to determine
whether the circumstances indicate that a specific individual qualifies as a bona fide volunteer
under the FLSA.

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.

Sincerely,

Paul DeCamp
Administrator

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