The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2008-16. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA).
This Opinion Letter considers whether a Latino Victim Specialist (LVS) may also volunteer as a Reserve Police Officer (RPO) for the same public agency. As an LVS, the employee provides “counseling and other assistance to, among others, victims of crime, families experiencing domestic violence, citizens with mental or psychological difficulties who become involved in law enforcement matters, homeless persons, and parents having difficulties with delinquent children.” Since these duties are not the duties of law enforcement personnel, the employee is not considered to provide the “same type of services” when volunteering as when performing regular paid duties.
A second consideration is that volunteers cannot receive compensation, but may receive a combination of “expenses, reasonable benefits, or a nominal fee.” In certain situations when it needs extra police help for special assignments, the Police Department requests that the RPOs work and pays the RPOs the equivalent of entry-level pay for a regular Police Officer. Since this payment is clearly more than the DOL established standard of twenty percent of pay for a comparable position, this pay is more than nominal. There is no need to combine the hours worked as an LVS with the hours worked as an RPO, however, to determine if the employee is entitled to overtime pay for a particular pay period. Employees who “work occasionally or sporadically on a part-time basis for the same public agency in a different capacity from their regular employment” do not need to have their hours combined for overtime purposes under the FLSA.
Lastly, even though the LVS may not volunteer during weeks in which the individual receives compensation as an RPO, those weeks are not a part of regular duties as an RPO. Therefore, the LVS may volunteer as an RPO during weeks in which the Police Department does not request compensated RPO service. The Police Department may “terminate the LVS’s occasional and sporadic part-time employment as an RPO at the conclusion of such special assignments and return him or her to volunteer RPO status during other workweeks in which no compensated work is performed” so long as it is not done with intent to circumvent the FLSA.
State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.