Second Circuit Defines “Volunteers” Excluded from Labor Protections

In a decision handed down June 18, the Second Circuit, the federal appellate court covering New York State, delineated and refined exactly what constitutes a “volunteer,” a category of worker excluded from the protections of the federal Fair Labor Standards Act. In a time where more and more high school and college graduates are accepting unpaid positions when they are unable to find work, the decision comes as a stark reminder of the importance of labor laws.

In Brown v. New York City Department of Education, the plaintiff, Jayquan Brown, was a high school graduate unable to find employment. After speaking with the Director of Student Life and principal of Banana Kelly High School, located in the Bronx, and expressing a desire to help mentor youth at the school, Brown began working at the school in fall of 2007.

From then until 2010, Brown worked full 40-hour workweeks at Banana Kelly, assisting with “lunchtime supervision, parent contact, and student escort,” as well as answering phones and handing out reports. He was occasionally given cash, including semi-regular payments of sixty dollars a week, and at one point was told by the principal that the school had applied for a grant to pay interns a stipend. Brown claimed he work such extensive hours because his supervisors – salaried employees – had told him that this was the amount of time he was needed.

The law at issue in this case was the Fair Labor Standards Act (FLSA), which guarantees “employees” certain overtime and minimum wage benefits, none of which were received by Brown. Inarguably, the FLSA provides an exemption for “volunteers” – those who work for a public agency for a “civic, charitable, or humanitarian purpose,” haven’t been promised compensation, and perform their work without coercion from employers. The issue in this case, then, was: Is Mr. Brown truly a volunteer, or was he a somewhat naïve kid being taken advantage of for a 40 hour workweek?

In siding with the Department of Education, the Second Circuit dismissed Brown’s claim that his humanitarian purpose – to help troubled youth – was only a partial reason for working at Banana Kelly, and that he also hoped to soon receive full compensation. Instead, the Court focused on what it called the “free choice” of Brown in providing his services. The Court found the hints at future compensation mere promises to “search the budget” or apply for grants, and the cash payments to Brown “nominal,” despite the fact that Brown claimed to rely on such payments for his personal expenses.

As the Court points out, it is important not to limit the opportunities for the more civic-minded among us to truly “volunteer” their time for a greater cause, without employers overly worried about violating labor laws. That said, one cannot help but read Brown and think that the plaintiff was being taken advantage of. After all, is it reasonable to think that a young man, without any other means of independent support, would voluntarily grant over three years of life, 40 hours per week, without expecting a future opportunity to arise from his efforts?

The issue of unpaid interns being taken advantage of has been coming to the surface in recent years, with NYC Mayor Bill deBlasio going so far as to sign a bill giving them the standing to sue their employers. (An informative look at the labor laws governing unpaid internships can be found here.) If you work without pay and think your employer is unfairly taking advantage of you, speak with an employment attorney. Interns, despite what you may have heard, do have rights.

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