Longwood Avenue at Banana Kelly High School, formerly PS 39 (Jim Henderson/Wiki)
Whether a worker is a volunteer, thus exempting a public agency from pay requirements in the Fair Labor Standards Act, is a question of law that a judge must decide, the U.S. Court of Appeals for the Second Circuit held Wednesday.
Affirming the denial of back pay and other benefits to a man who volunteered in the New York City public school system for more than three years, the Second Circuit said it’s up to the court to decide volunteer status when awarding summary judgment to a public agency under the act.
It was the first time the circuit had expounded on the extent of the act’s exemption from minimum and overtime wage requirements for volunteers at public agencies.
The ruling came in Brown v. New York City Department of Education, 13-139-cv, where Jayquan Brown claimed he was entitled to wages, and overtime under the Fair Labor Standards Act, (FLSA) 29 U.S.C. §201, for his work at Banana Kelly High School on Longwood Avenue in the Bronx.
Brown graduated in 2006 from the New School of Arts and Sciences in the Bronx at a time when it shared space with Banana Kelly.
Unable to obtain a job, he volunteered to help his older brother, Jerome Brown, who was employed at an after-school program at nearby C.S. 92. Based on this experience, Jayquan Brown was brought on at Banana Kelly in 2007 as a “volunteer intern” by school principal Joshua Laub.
Brown knew he would not be paid and later said he spent five days a week, and some Saturdays, at the school to build his resume, model himself after his brother and “stand up, and make a change, and show kids that we do care.”
He initially worked with the school’s intervention team alongside salaried employees involved in student conflict resolution. As part of the team, he performed lunchroom supervision, detention, parent contact and student escort duties. When he would ask for a paid position, Laub usually told him there was nothing available, although the principal once said he would look for additional money in the budget.
Brown occasionally received $40 or $50 from Laub. His brother also helped by giving him money and MetroCards. At times, both Laub and Jerome paid for his meals.
Brown sued the education department in the Southern District in 2012. He later added Laub as a defendant in his individual capacity.
Southern District Judge Paul Crotty (See Profile) granted the Department of Education’s motion for summary judgment in December 2012, finding Brown was a “volunteer, not an employee, as defined by the FLSA.” Brown appealed to the Second Circuit where oral argument was heard on Nov. 12, 2013 by Judges Rosemary Pooler (See Profile), Reena Raggi (See Profile) and Richard Wesley (See Profile).
Brown argued there were disputed issues of fact that should have precluded Crotty from concluding as a matter of law that Brown was serving as a volunteer.
Writing for the court, Raggi said the Second Circuit had yet “to consider the scope of the act’s public agency volunteer exception.” But three sister circuits, the Fourth, Fifth and Sixth, have considered the issue have held it to be a question of law.
“As with other issues arising under the FLSA, however, the answer to that ultimate question necessarily depends on record circumstances that can present disputed issues of fact,” Raggi said. “Accordingly, on review of a summary judgment award to a public agency, a court deciding whether a party was a public agency volunteer must review the record evidence in the light most favorable to the purported volunteer and draw all inferences and resolve all record ambiguities in his favor.”
Under U.S. Department of Labor regulations, a person qualifies as a volunteer if they have “a civic, charitable, or humanitarian purpose,” they are neither promised nor expect to be paid, they worked without pressure or coercion and they were not “otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer.”
And volunteers can still be paid expenses, get reasonable benefits and even a nominal fee without triggering an obligation for minimum and overtime wages.
Raggi said the “exemptions are to be narrowly construed against the employers seeking to assert them,” but the court was mindful that, in the case of the volunteer exception, Congress did not intend to discourage people from volunteering for a “civic, charitable or humanitarian” purpose.
Brown argued a person must act “solely” for that purpose to be a volunteer and that he had more than one motive, including career advancement, for volunteering at Banana Kelly.
But the circuit, agreeing with Crotty, rejected that construction of the law. Raggi said the obligation to construe the exception narrowly “does not contemplate the imposition of judicial limits not intended by either Congress or the implementing agency, particularly where those limits would further a result—discouraging or impeding volunteer services to public agencies—that Congress and the agency expressly disavow.”
“In this respect, common sense and human experience inform our consideration of Brown’s urged exclusive-purpose limitation,” she said. “They instruct that human actions are frequently informed by multiple reasons.”
In Brown’s case, she said, “The fact that this unemployed, recent high school graduate hoped also to build his resume and to emulate his role model does not legally preclude a court from finding him to have served as a public agency volunteer exempt from the FLSA’s minimum and overtime wage requirements.”
Finally, the court held that the cash and benefits Brown received “cannot reasonably be deemed ‘compensation’ so as to preclude application” of the exception.
Chinyere Okoronkwo represents Brown.
Assistant Corporation Counsels Larry Sonnenshein and Kathy Chang represent the city.