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Click here for the full text of this decision FACTS:In Elmendorft, Tex., the police department is made up of a full-time police chief and two part-time officers. Over the years from 2000 to 2002, the city has also used 30 non-paid regulars who were volunteers. The city maintained the police commissions of many of these people, but they otherwise received nothing else in exchange for their services. The entire police department resigned in early 2002, saying they were constructively discharged by the city administrator and other city council members. All those officers who held the full-time or one of the part-time positions since 2002 sued the city for the alleged willful and intentional violation of the Fair Labor Standards Act. The paid officers said they had been wrongfully denied overtime pay. The city countered that it was subject to an exemption in the FLSA that limits the act’s application to employers with five or more employees. The paid officers said there were five or more employees at any given time when the non-paid officers were included. The city said these non-paid officers were volunteers only and did not count as employees. The district court granted summary judgment for the city and denied the officers’ summary judgment motion. HOLDING:Affirmed. Though the FLSA itself does not define what makes an employee a volunteer, the regulations does give a two-part definition: (1) a civic, charitable, or humanitarian reason for performing hours of service for a public agency, and (2) an absence of a promise, expectation or receipt of compensation for the performance of those services. The police officers do not contend that the non-paid regulars received or expected to receive any pay for their services, but the officers argue that the regulation requires that volunteers be exclusively motivated by civic, charitable or humanitarian purposes. The city says only part of the motivation be so. Because, however, the question of whether an employee is a volunteer is a question of law, the motivation of the non-paid regulars is irrelevant. The court says it will look instead to the objective facts surrounding the services performed to determine whether the totality of the circumstances supports a holding that, under the statute and under the regulations, the non-paid regulars are volunteers. “We think that a common-sense approach, supported by the statute, the regulations and their intended purpose, suggests that anyone who performs public services without the expectation of compensation, and with no tangible benefits for himself, is volunteering for civic, charitable and/or humanitarian reasons.” The court finds the fact that the city maintained the non-paid regulars’ commission does not amount to a tangible benefit. The commission is only the permission granted to these officers to act in behalf of the locality where it works. OPINION:E. Grady Jolly, J.; Garwood, Jolly and Barksdale, JJ.

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