By Leticia Halas
The Oxford Dictionary defines “volunteer” as “a person who freely offers to take part in an enterprise or undertake a task” and further as “a person who works for an organization without being paid.” Despite the inherent meaning of the word volunteer, litigation surrounding unpaid wages of volunteers is trending. Initially, one might scoff at the notion that volunteers now want compensation for work they perform voluntarily. However, the law on point is somewhat unsettled and difficult to apply.
On August 7, 2013, John Chen filed a federal lawsuit in New York against Major League Baseball (MLB) alleging violations of the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). Chen was one of 2000 individuals who volunteered for MLB’s 2013 All-Star FanFest in New York. In total, Chen volunteered 17 hours of his time over three shifts and two mandatory training sessions. His responsibilities included stamping the wrists of FanFest guests after they signed liability waivers, handing bags of paraphernalia to guests at the entrance, placing flyers in bags, redirecting guests who attempted to exit the wrong way, alphabetizing liability waivers, and assisting customers at the batting cages. The MLB provided its FanFest volunteers with a shirt, cap, drawstring backpack, water bottle, baseball and free admission for the volunteer and one guest. Chen claims that these offerings are inadequate “pay” and is now attempting to recover unpaid wages and a reasonable incentive payment to be designated as class representative of the proposed class.
Not only is volunteer work encouraged in the United States, it is admired. In his Presidential Proclamation during National Volunteer Week in 2012, President Obama urged Americans to “stand up and play their part” by volunteering their time and efforts. Under the FLSA however, opportunities for volunteers are limited. The key issue is whether or not the individual is considered an employee. “Individuals who volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.” Similarly under the NYLL, the term “employee” does not extend to any individual who is permitted to work: “as a volunteer, learner or apprentice by a corporation, unincorporated association, community chest, fund or foundation organized and operated exclusively for religious, charitable or educational purposes, no part of the net earnings of which inures to the benefit of any private shareholder or individual.”
To distinguish volunteers from employees, the Supreme Court uses a “totality of the circumstances” test and has identified several relevant factors. See Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947). Those factors include 1) expectation of compensation, 2) immediate/primary benefit, 3) integral to business, 4) coercion/pressure, 5) time of activity, 6) similarity between volunteer activity and job duties, 7) length of relationship and 8) part time v. full time. The courts have visited each factor through a variety of cases and the analyses rely on specific facts. The facts submitted in Chen’s complaint would appear only to implicate coercion/pressure with regards to the two mandatory training sessions.
Even when such factors weigh in favor of volunteerism, the Department of Labor grants volunteer status only to those individuals who perform charitable services for non-profit organizations. See above. Herein lies the dispute because the MLB is most certainly a for-profit organization and the courts are inconclusive on volunteering in the private sector.
The individuals who typically volunteer for sporting events are fans who enjoy contributing to the event. Otten & Golden LLP (the law firm representing Mr. Chen) even quoted Mr. Chen on their website: “I very much enjoyed working at FanFest.” He also stated that “people who cannot afford to work for free should be able to have the same experience I had.” However, individuals that cannot afford to volunteer are in search of wages, not an experience. Volunteerism gives individuals who would otherwise be ineligible to work (youths, unauthorized aliens, the elderly etc.), an opportunity to offer their time and efforts. The professional sports industry in the United States relies on the contribution of volunteers and the final outcome of this litigation could have a detrimental impact on its economic scheme. That said, while it would be impractical to pay minimum wage to volunteers – it would not be impossible. Rather, compensating those who generously donate their services would frustrate the goodness and charitable fundamentals of volunteerism.
