Classifying Support Staff as Volunteers

1. Classifying Support Staff as Volunteers AASBO Spring Conference 2013 Presented by Brad Nassif, Business Manager Glendale Union High School District

2. Thanks to • Doug Vaughan • Business Manager • Pinon Unified School District #4 • Provided me the initial information at a AASBO Payroll Workshop in 2012

3. A look at FLSA • Strict interpretation of FLSA limited school districts on how to manage Support Staff Employees and Coaching Assignments • Not allowed to participate at all • Volunteer but not paid • Paid hourly rate and overtime • Blend hourly rate and minimum wage and limit hours • Etc….

4. FLSA – CFR Title 29 • www.ecfr.gov • Title 29 Labor • Section 553.30 Occasional or sporadic employment-section • Section 553.106 Payment of expenses, benefits, or fees

5. FLSA – CFR Title 29 • CFR Title 29 § 553.30 • (b) Occasional or sporadic. (1) The term occasional or sporadic means infrequent, irregular, or occurring in scattered instances. There may be an occasional need for additional resources in the delivery of certain types of public services which is at times best met by the part-time employment of an individual who is already a public employee. Where employees freely and solely at their own optionenter into such activity, the total hours worked will not be combined for purposes of determining any overtime compensation due on the regular, primary job. However, in order to prevent overtime abuse, such hours worked are to be excluded from computing overtime compensation due only where the occasional or sporadic assignments are not within the same general occupational category as the employee's regular work.

6. FLSA – CFR Title 29 • CFR Title 29 § 553.30 • (5) In addition, any activity traditionally associated with teaching (e.g., coaching, career counseling, etc.) will not be considered as employment in a different capacity. However, where personnel other than teachers engage in such teaching-related activities, the work will be viewed as employment in a different capacity, provided that these activities are performed on an occasional or sporadic basis and all other requirements for this provision are met. For example, a school secretary could substitute as a coach for a basketball team or a maintenance engineer could provide instruction on auto repair on an occasional or sporadic basis.

7. FLSA – CFR Title 29 • CFR Title 29 § 553.106 Payment of expenses, benefits, or fees • (a) Volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers. • (f) Whether the furnishing of expenses, benefits, or fees would result in individuals' losing their status as volunteers under the FLSA can only be determined by examining the total amount of payments made (expenses, benefits, fees) in the context of the economic realities of the particular situation.

8. FLSA – US Code 29 • 29 USC § 203 (e) (4) • (A)The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if— • (i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and • (ii) such services are not the same type of services which the individual is employed to perform for such public agency

9. FLSA - Summary • Key questions are: • Is the assignment voluntary? • Is the assignment different than regular job assignment? • How much is a nominal fee?

10. A look at the Courts • 4th Circuit Court of Appeals • Purdham v. Fairfax County School Board • Just Google it and you will find many links to this court case • NSBA (National School Boards Association) even filed a Friend of the Court brief

11. The Courts – Case Facts • Fairfax County Schools had previously classified Support Staff (non-exempt) employees as “volunteers” for the purpose of coaching assignments • The stipend paid to support staff employees was considered a “nominal fee” • Based on strict FLSA interpretation, the school district for one year classified support staff coaches as non-exempt and paid those assignments on an hourly/overtime basis as per FLSA regulations

12. The Courts – Case Facts • Upon seeking further clarification from the Dept. of Labor (DOL) and receiving a letter from the DOL, the school district returned to the previous practice of interpreting support staff as “volunteers” and paying a “nominal fee” for coaching assignments

13. The Courts – Case Facts • James Purdham, a long time security assistant and golf coach, sued the school district maintaining that he should be considered an “employee” and not a “volunteer” for the coaching assignment • The plaintiff claimed that he spent 350 to 450 hours per year coaching which violated FLSA as the stipend amount of about $2000 fell below minimum wage standards

14. The Courts - Court Conclusions • 4th Circuit Court of Appeals found in favor of Fairfax County Schools • The fact that the school district had changed it’s policy for one year had no bearing on the decision as the district was acting according to FLSA as it was interpreted

15. The Courts - Court Conclusions • The Court looked to the statutory and regulatory language defining “volunteer” for a public agency. According to the Court, an exempt volunteer is one who “receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform” the volunteered services; and the services provided are not the same type performed as an employee of the public agency. Charitable reasons are a motivator of the services, and that the individual offers his services without coercion. • Goddard, Vanessa. “Charity Begins at … the Golf Course!”Steptoe & Johnson Blog. 28 March 2011. Web. 15 March 2013

16. Things to Remember • DOL regulations and Court decision only apply to public employers like school districts • Coaching assignment must be completely voluntary • Coaching assignment must unlike employee’s regular job assignment

17. Things to Remember • Team performance has no correlation to stipend amount and job evaluation • Not going to get more or less of a stipend if team makes or doesn’t make playoffs • Not going to get fired from maintenance job if team doesn’t make the playoffs • Stipends paid are considered a “nominal fee” and in no way correlate to time spent on the assignment

18. Plan of Action • Study relevant FLSA regulations • Title 29 Sections 553.30 and 553.106 • 29 USC § 203 (e) (4) • Google “FLSA2005-51” • DOL Letter • DOL does not indicate that a “nominal fee” of $1000’s is unrealistic • Google “Purdhamv. Fairfax County School Board”

19. Plan of Action • Add Volunteer Fee Schedule to Support Staff Salary Schedule • Can be a copy from the Certified Staff Schedule • Develop a Support Staff Volunteer Form • Include language that the assignment is voluntary • Include language that any stipend paid is a nominal fee • Include language that the there is no correlation between stipend amount and team performance

20. Plan of Action • Seek the advice of your district’s attorney to make sure that you are not missing anything • Inform current support staff coaches of the change in classification/policy

21. Questions???

22. Thanks • Contact Information • Brad Nassif • Business Manager • Glendale Union High School District • Brad.Nassif@guhsdaz.org • (623) 435-6085