Opinion
CIVIL ACTION NO. SA-02-CA-0395 NN
January 23, 2004
I. Introduction
The matters before me are the motion for partial summary judgment brought by plaintiffs David Cleveland, Mark S. Vojvodich, Andrew Aston, and Brian Benavides ("plaintiffs"), and the motion for summary judgment brought by defendant City of Elmendorf ("defendant"). Plaintiffs filed their motion for partial summary judgment on August 25, 2003. Defendant filed its motion for summary judgment, and accompanying appendix in support thereof, on August 28, 2003, After considering the motions for summary judgment, the entirety of the record in this matter, and the applicable case, statutory and regulatory law, I find that plaintiffs are not entitled to FLSA protection and, consequently, defendant is entitled to judgment as a matter of law on all remaining claims.
Docket Entry 54.
Docket Entry 58.
Docket Entry 54.
Docket Entries 58 and 59.
Both parties concede that plaintiffs' only remaining claims are the FLSA causes of action. See Docket Entries 54 and 58.
I have jurisdiction over this matter under 28 U.S.C. § 636(c). Because the parties consented to proceed before a magistrate judge for all matters in this case, including trial and entry of judgment, Honorable J. Fred Biery assigned this action to me for disposition on September 23, 2002.
Docket Entries 17 and 22.
Docket Entry 27.
II. Federal Jurisdiction
This court has jurisdiction pursuant to 28 U.S.C. § 1331.III. Statement of the Case
The City of Elmendorf is a Class A General Law Municipality with a population of approximately 664. In 1999, the City eliminated its police department, and began relying on the Bexar County Police Department for the City's law enforcement needs. Ermina Slaughter was elected mayor of Elmendorf in May 1999 on the promise, inter alia, that she would re-establish a police department in the City.
Docket Entry 5 8, at 2.
Docket Entry 54, at 2.
Docket Entry 54, P-1.
To assist defendant in establishing its new department, plaintiff Cleveland agreed to assume the position of police chief on an unpaid basis for ninety (90) days in the summer of 2000. Thereafter, plaintiff Cleveland was hired as the full time Chief of Police from June 2000 to August 17, 2001. For his services, plaintiff Cleveland was paid an annual salary of $36,000. During his tenure as Chief of Police, plaintiff Cleveland was the only paid police officer working for defendant. However, there were numerous unpaid police officers assisting the police department at the time plaintiff Cleveland was the Chief of Police. For example, plaintiff Vojvodich was "hired" as a non-paid regular police officer on October 12, 2000. Similarly, plaintiff Benavides was "hired" as a non-paid regular police officer on January 11, 2001.
Docket Entry 54, at 3.
Docket Entry 58, at 3. See also Docket Entry 54, P-4.
Docket Entry 54, at 3. See also Docket Entry 54, P-5, at 45.
Docket Entry 58, ¶ 7, at 2.
Docket Entry 58, at 2-3. See also Docket Entry 54, P-5, at 50.
Docket Entry 54, P-4.
Id.
In August 2001, plaintiff Cleveland sought a leave of absence from his position as Chief of Police to attend nursing school in Florida. When plaintiff Cleveland went to Florida, plaintiff Vojvodich assumed the role of Chief of Police and began receiving plaintiff Cleveland's salary.
Docket Entry 58, at 4.
Docket Entry 58, at 4. See also Docket Entry 54, P-8, at 65, 67.
Plaintiffs Aston and Benavides began working for the police department as unpaid officers. After plaintiff Vojvodich assumed the position of Chief of Police, plaintiff Aston was moved into a part-time paid police officer position with the City, as was another officer, Hope Vasquez. When Officer Vasquez resigned her paid part-time position in September of 2001, plaintiff Benavides became a paid part-time officer.
Docket Entry 58, at 3.
Docket Entry 58, at 3.
Docket Entry 58, at 3. See also Docket Entry 54, P-10, at 18
Although approximately thirty (30) individuals worked for the police department for various amounts of time from 2000 to 2002, there were never more than three (3) paid officers at any given time working for the police department — the Chief of Police and two part-time officers. The remaining officers, who are not parties to this action, were not paid for their services. Rather, they donated their time to defendant in exchange for the defendant's agreement to maintain those individuals' police officer commissions. Those officers who worked for defendant on an unpaid basis and are not parties to this action will hereafter be referred to as "third party officers."
Docket Entry 54, P-4; P-11, at 92.
Docket Entry 58, at 2-3. See also Docket Entry 54, P-9, at 60-61, 70, 77-78; P-10, at 20 (Plaintiff Benavides' testimony that two part time police officer positions were approved in September 2001); P-11, at 55-56.
Docket Entry 54, P-5, at 51.
Plaintiffs assert that a number of inappropriate actions were taken by the City Administrator, Nolan Williamson, elected in November 2002, as well as various mayors and City Council members of Elmendorf. In particular, plaintiffs contend that these officials requested that plaintiffs unfairly and inappropriately prosecute traffic violations, as well as utilize city resources to harass political or social adversaries of those officials. Plaintiffs further asserted that defendant's agents retaliated against plaintiffs for requesting overtime and refusing requests to use their police authority inappropriately.
Docket Entry 54, at 5.
Although despicable if true, these allegations have no bearing on whether defendant was exempt from the wage and hour provisions of the FLSA — the only issue remaining before me.
Plaintiffs' employment relationship with defendant ended in 2002. Specifically, plaintiffs aver that they were constructively discharged at various times in 2002 because defendant's actions — the alleged wage and hour violations, coupled with the harassing and retaliatory behavior of Mr. Williamson and other City Council members — created such an intolerable situation that plaintiffs were forced to resign. This civil action was then filed in April 2002.
Docket Entry 54, at 7. See also Docket Entry 54, P-5, Exhibit 2 (Plaintiff Cleveland resigned on January 21, 2002); Docket Entry 54, P-7, at 10 (Plaintiff Vojvodich resigned in February 2002); Docket Entry 54, P-10, at 43, 48 (Plaintiff Benavides resigned on February 14, 2002).
In their motion for partial summary judgment now before me, plaintiffs contend that they are entitled to judgment as a matter of law on their Fair Labor Standards Act claims. In particular, they assert that they, and the non-paid officers working for defendant, each meet the statutory and regulatory definitions of "employee," as opposed to "volunteer." As such, they argue that defendant is not entitled to the Fair Labor Standards Act's exemptions as a matter of law.
See Docket Entries 54 and 67.
Id.
In addition to opposing plaintiffs' motion for partial summary judgment, defendant brought its own motion for summary judgment urging that FLSA protections do not extend to plaintiffs because they are not employees and because defendant employs too few employees to be subject to the FLSA.
Docket Entry 65.
Docket Entry 58.
IV. Issue Presented
Whether defendant is exempt from the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA)?V. Applicable Legal Standards
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Rule 56 provides in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c): Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).
Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute concerning a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986); Thomas v. LTV Corp. , 39 F.3d 611, 616 (5th Cir. 1994).
Anderson , 477 U.S. at 248; Wise v. E.I. DuPont De Nemours Co. , 58 F.3d 193, 195 (5th Cir. 1995).
Anderson , 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp. , 477 U.S. at 323.
Edwards v. Aguillard , 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp. , 477 U.S. at 325.
Id.
Anderson , 477 U.S. at 257.
Importantly, the non-moving party cannot discharge this burden by referring to the mere allegations or denials of the non-moving party's pleadings. Rather, the non-movant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the non-movant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the non-movant's burden." Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to his or her case on which he or she bears the burden of proof at trial. Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(e); Anderson , 477 U.S. at 250; State of Texas v. Thompson , 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp. , 477 U.S. at 324; Fields v. City of South Houston. Texas , 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. American Dairy Queen Corp. , 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied , 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner , 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Services Auto. Ass'n , 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr , 19 F.3d 1527, 1533 (5th Cir.),cert. denied, 513 U.S. 871 (1994)).
Celotex Corp. , 477 U.S. at 322 ("In such situation, there can be 'no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id. at 323.
See Fields , 922 F.2d at 1187.
VI. Analysis
A. Overview of the Fair Labor Standards ActThe Fair Labor Standards Act (FLSA) was enacted in 1938 to eliminate certain employment conditions that were harmful to workers.
The purpose of the Act is thus remedial, and courts have long held that in light of its humanitarian intent, the Act's coverage should be construed liberally.
29 U.S.C. § 201, et seq.
See Rodriguez v. Township of Holiday Lakes , 866 F. Supp. 1012, 1017 (S.D.Tex. 1994).
Id.
The provisions of the FLSA require, inter alia, that employers subject to the Act pay employees covered by the Act a designated minimum wage, as well as overtime compensation when a covered employee works more than forty hours in one work week. Under the FLSA, "employer,"
includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.
In defining the term "employee," the FLSA provides: "Except as provided in paragraphs (2), (3), and (4), the term 'employee' means any individual employed by an employer." To "employ" under the FLSA, means, "to suffer or permit to work."
The FLSA outlines several situations in which specific employers are exempt from the FLSA's wage and hour requirements. When an employer is exempt from the FLSA's provisions, its workers are not entitled to the benefits and protections — including the minimum wage and overtime provisions — afforded by the FLSA.
One such exemption was codified in 1985 when Congress excluded certain volunteers from employee status, and, therefore, protection, under the FLSA. The FLSA volunteer exemption provides:
See Rodriguez , 866 F. Supp., at 1017, citing Pub.L. 99-150, § 4(a)(2) (1985).
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.
29 U.S.C. § 203(e)(4)(A). Krause v. Cherry Hill Fire District 13 , 969 F. Supp. 270 (D. N.J. 1997) (Held: plaintiffs could not be considered volunteers because they were performing the very same work which they had previously been employed (i.e. paid) to perform for the same public agency).
Although the FLSA itself does not define the term "volunteer," the Code of Federal Regulations contains the definition of "volunteer" to be utilized in interpreting the FLSA. The regulation states, in pertinent part:
An individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours. Individuals performing hours of service for such a public agency will be considered volunteers for the time so spent and not subject to sections 6, 7, and 11 of the FLSA when such hours of service are performed in accord with sections 3(e)(4)(A) and (B) of the FLSA and the guidelines in this subpart.
The regulations further acknowledge that individuals often "donate hours of service to a public agency."
Such individuals are considered volunteers and not employees of such public agencies if their hours of service are provided with no promise (sic) expectation, or receipt of compensation for the services rendered, except for reimbursement for expenses, reasonable benefits, and nominal fees, or a combination thereof, as discussed in § 553.106.
Id.
In outlining the types of services which might be provided to a public agency on a volunteer basis, the regulation includes work as "auxiliary police."
When determining whether the volunteer exemption applies to a particular employer,
the Supreme Court has directed courts considering FLSA claims to define 'employer' and 'employee' under the Act expansively and to construe exemptions from the FLSA's coverage narrowly and in favor of employees.
Rodriguez , 866 F. Supp., at 1017, citing Tony Susan Alamo Foundation v. Secretary of Labor , 471 U.S. 290, 295-96, 105 S.Ct. 1953, 1958-59, 85 L.Ed.2d 278 (1985): Goldberg v. Whitaker House Cooperative. Inc. , 366 U.S. 28, 32, 81 S.Ct. 933, 936, 6 L.Ed.2d 100 (1961); Brennan v. Greene's Propane Gas Service, Inc. , 479 F.2d 1027, 1032.
Similarly, the FLSA provides an exemption for public agencies, and employees of public agencies, engaged in fire protection or law enforcement activities when said agency employs less than five (5) employees during any given workweek. Thus, the overtime provisions of the FLSA do not apply to
any employee of a public agency who in any workweek is employed in fire protection activities or any employee of a public agency who in any workweek is employed in law enforcement activities (including security personnel in correctional institutions), if the public agency employs during the workweek less than 5 employees in fire protection or law enforcement activities, as the case may be . . .
Importantly, the employer claiming the exemption bears the burden of proving its exempt status. Moreover, the question of an individual's status as a volunteer or employee, and similarly, an employer's exempt status, is a question of law. Finally, it is imperative to note
Paul v. Petroleum Equipment Tools Co. , 708 F.2d 168, 170 (5th Cir. 1983), citing Usery v. Associated Drugs, Inc., 538 F.2d 1191, 1194 (5th Cir. 1976). See also Brennan, 479 F.2d. at 1032. n. 18.
See Dalheim v. KDFW-TV , 918 F.2d 1220, 1226 (5th Cir. 1990): Rodrieuez , 866 F. Supp., at 1017-1018.
that the terms 'independent contractor,' 'employee,' and 'volunteer' are intended to be both comprehensive and mutually exclusive for purposes of applying the FLSA; that is, an individual who provides services for an agency must fall into one but only one of these categories. There is no category for 'quasi-volunteer' or 'semi-employee.'
Todaro v. Township of Union , 40 F. Supp.2d 226, 229 (D. N.J. 1999).
B. Plaintiffs' assertion that the third party officers were employees is untenable.
In the instant case, plaintiffs argue that they and the third party officers cannot properly be classified as volunteers under the FLSA for two main reasons: (1) both plaintiffs' and the third party officers' relationships with defendant satisfies the economic reality test; and (2) both plaintiffs and the third party officers meet the statutory and regulatory definitions of employees. Consequently, plaintiffs argue that: (1) defendant was subject to the FLSA; (2) defendant violated the FLSA; and (3) plaintiffs are entitled to liquidated damages under the FLSA. 63 29 U.S.C. § 213(b)(20).
1. The economic reality test cannot properly be applied to the instant case.
Plaintiffs' first argument in support of their position that they and the third party officers qualify as employees under the FLSA is that the nature of their relationship with defendant satisfies the economic reality test.
Docket Entry 54, at 8-9.
The economic reality test is a mechanism to determine
whether the alleged employee, as a matter of economic reality, is economically dependent upon the business to which he or she renders his or her services.
Herman v. Express Sixty-Minutes Delivery Service, Inc. , 161 F.3d 299, 303 (5th Cir. 1998).
However, the economic reality test is not an appropriate method of deciding between an individual's status as either a volunteer or an employee under the FLSA. Rather, the economic reality test
is designed to distinguish an employee from an independent contractor, a distinction that presupposes a real economic exchange between the parties which can be gauged. In the volunteer area, however, there is no economic relation to measure.
Rodriguez , 866 F. Supp., at 1020 (emphasis in original). See also Herman , 161 F.3d 299; Krause v. Cherry Hill Fire District 13 , 969 F. Supp. 270, 274-75 (D. N.J. 1997)("The test is best suited to determine whether, as a matter of economic reality, an individual is in business for himself or herself as an independent contractor, or is an employee of another. The 'economic realities' test is of limited utility in determining whether an individual is an 'employee,' as opposed to a 'volunteer.'").
Because the issue before me is whether defendant's law enforcement workers were employees or volunteers for purposes of the FLSA, the economic reality test provides little guidance. As such, plaintiffs' arguments regarding the same will not be considered further.
2. The applicable case authority analyzes an unpaid police officer's categorization as an employee or volunteer.
Plaintiffs reply brief omits any reference to the economic reality test, perhaps suggesting that plaintiffs now concede the inapplicability of the test. See Docket Entry 67.
Unfortunately, there is a dearth of case law on the issue before the Court. Only two reported cases address whether non-paid law enforcement officers constitute employees under the FLSA: Rodriguez v. Township of Holiday Lakes and Todaro v. Township of Union . Both cases involved similar fact patterns and arrived at opposite conclusions.
Rodriguez , 866 F. Supp. 1012.
Todaro , 40 F. Supp.2d 226.
a. Rodriguez v. Township of Holiday Lakes.
Rodriguez , 866 F. Supp. 1012.
In Rodriguez, a former police officer brought an action against the town for which he worked, the Township of Holiday Lakes. Rodriguez and his fellow officers worked on an unpaid, full time basis with the Township of Holiday Lakes in order to be eligible for paid work as road construction flagmen in nearby Harris County. When Harris County required that its flagmen be paid, full time police officers, Holiday Lakes began paying Rodriguez and his colleagues $5.00 per month.
Id.
Id. at 1015.
Id.
On September 20, 1993, Holiday Lakes hired Rodriguez as Chief of Police for a ninety day probationary term. Before his probationary period ended, Holiday Lakes terminated Rodriguez for "'want of confidence.'" Rodriguez then sued Holiday Lakes for its alleged failure to pay him overtime or minimum wage compensation.
Id.
Id. at 1016.
Id.
Noting that it was deciding a case of first impression, theRodriguez court held that Holiday Lakes' "behavior and policies" were "inconsistent with a common-sense notion of 'volunteer' or with the Administrator's definition of that term in 29 C.F.R. § 553.101." The Rodriguez Court considered four general factors: first, that exemptions from FLSA coverage were to be construed narrowly and in favor of employees; second, that plaintiff was motivated, not by civic, humanitarian or charitable purposes as required by the regulatory definition of "volunteer," but by the desire to secure other, paid, full time employment; third, that the Administrator's explicit inclusion of "auxiliary police" among his illustrations of kinds of volunteers "strongly suggests that the Administrator intended not to include full-time regular police work under 'volunteer status;'" and fourth, that the following constituted objective indicia of employment: plaintiffs mandatory completion of an employment application with Holiday Lakes; the fact that certain Holiday Lakes City Council members referred to plaintiff and the other officers as employees; plaintiffs required compliance with Holiday Lakes' personnel manual, including the duty to refrain from outside employment; and the City Council's authority to hire and fire its police officers. For all the foregoing reasons, the Rodriguez Court concluded that plaintiffs relationship with Holiday Lakes satisfied the regulatory definition of employment,
Id. at 1017.
Id. at 1021. The "Administrator" referenced in the Rodriguez decision is the Administrator of the Wage and Hour Division of the Department of Labor who promulgated the regulatory provisions which define and interpret the FLSA. See Id. at 1018-1019.
Id. at 1017.
Id. at 1019.
Id. at 1019-1020 (emphasis in original).
Id. at 1020.
b. Todaro v. Township of Union Todaro v. Township of Union was decided in 1999, five years after Rodriguez. The Todaro plaintiffs worked for the Township of Union as unpaid "special law enforcement officers (SLEOs)" so that they could be eligible for paid positions with private entities. These positions were known as "jobs-in-blue." The Todaro Court noted that the plaintiff law enforcement officers met the primary definition of volunteer — they received no compensation — so that the only issue before the Court was "whether the motivation of the plaintiffs in continuing to perform town duty was such that they constitute[d] volunteers as a matter of law."
Todaro , 40 F. Supp.2d 226.
Id.
Id. at 229.
Although it acknowledged Congress' intent that the FLSA's definition of employee be broadly construed, the Todaro Court noted that
if the definition of 'volunteer' provided in 29 C.F.R. § 553.101(a) is applied literally, an untenable logical paradox arises.
Id. at 230.
The paradox is
that a situation could exist in which an individual thinks of himself as a volunteer, is considered to be a volunteer by the agency for which he provides services, and yet does not qualify as a volunteer under the regulatory definition.
Id.
The Court found that this paradox arises because there are "myriad other motivations that do not qualify under 29 C.F.R. § 553.101(a)" such as an individual's desire to volunteer to acquire "employment contacts, gain experience or obtain school credit." In summarizing its holdings regarding the FLSA's breadth, the Todaro Court stated:
Id.
The protections provided by the FLSA, while broad in scope, were not intended to sweep everyone under the minimum wage umbrella.
Id.
For these reasons, the Todaro Court
concluded that the definition of 'volunteer' must be applied in a common-sense way that takes into account the totality of the circumstances surrounding the relationship between the person providing the services and the entity for which the services are provided, in light of the goals of the FLSA.
Id.
In the final piece of its analysis, the Todaro Court observed that
The regulatory definition does not require that the individual be exclusively, or even predominantly, motivated by 'civic, charitable, or humanitarian reasons'; therefore, the Court understands this phrase to be modified by an implied 'at least in part.'
Id.
Having so construed the FLSA's definitions of employee and volunteer, the Todaro Court concluded that the plaintiff SLEOs were volunteers. The Court predicated its conclusion on the following facts: first, that all plaintiffs conceded that they had no expectation of compensation for performing SLEO work and were not coerced into working gratis; second, that any individual willing to perform potentially dangerous work as a law enforcement officer must be motivated, at least in part, by an altruistic sense of civic duty; third, that the individual plaintiffs were motivated both by a sense of satisfaction for helping their community, and a hope that they would attain eligibility for paid jobs-in-blue work; fourth, that an individual does not become an employee merely because he received reasonable benefits for his work; and fifth that the potential benefits to plaintiffs for their volunteer work-priority status to obtain jobs-in-blue work —
never involved any exchange of money, goods, or services between the Township and the SLEOs. In other words, although the SLEOs may have benefitted from the jobs-in-blue, there was no corresponding detriment or cost to the Township.
Todaro , 40 F. Supp., at 230-232.
For these reasons, the Todaro Court found that the "totality of circumstances surrounding plaintiffs' relationship with defendant" established that the plaintiff SLEOs were not employees, and were not, therefore, entitled to the benefits and protections of the FLSA.
3. The public policies underlying the FLSA and the totality of the circumstances surrounding the third party officers' relationship with defendant necessitates the conclusion that the officers were not employees.
Todaro , 40 F. Supp., at 231.
Although the case authority discussed above provides some guidance, the dispute before this Court presents a slightly different issue, and one of first impression. In both Rodriguez and Todaro, the plaintiff law enforcement officers were attempting to classify themselves as employees (as opposed to volunteers) in order to obtain relief under the FLSA. However, in the instant case, plaintiffs — who were all paid employees at one time during the tenure of their relationship with defendant — are attempting to have the third party officers classified as employees (as opposed to volunteers). Plaintiffs are seeking this declaration so that defendant — a public agency — may then be judicially deemed to have employed more than five (5) employees in law enforcement activities during any given workweek and, consequently, governed by the FLSA.
Having carefully considered the applicable regulations, the remedial purposes of the statute, the relevant case authority, and the parties' arguments, I conclude that the third party officers were volunteers and not employees. In so doing, I rely primarily on the public policies surrounding the FLSA's "head count" limitation, coupled with a common-sense reading of the statute, and the totality of the circumstances surrounding the relationship between defendant and the third party officers.
a. Public policies underlying the FLSA.
As previously discussed, the FLSA was enacted to protect individuals classified as employees from harmful employment situations. While Congress explicitly directed, and myriad courts have embraced, a broad interpretation of the definition of employee under the FLSA, so too has Congress expressly limited the reach of the FLSA and other federal employment statutes to larger entities. For instance, public agencies employing less than five (5) individuals in law enforcement activities are expressly exempted from compliance with the FLSA. Similarly, the anti-discrimination provisions in Title VII of the Civil Rights Act only apply to entities employing fifteen (15) or more employees, and the Age Discrimination in Employment Act (ADEA) only covers employers who employ twenty (20) or more employees. The purpose of exempting "tiny" employers from such statutes is clear.
The purpose is to spare very small firms from the potentially crushing expense of mastering the intricacies of the antidiscrimination laws, establishing procedures to assure compliance, and defending against suits when efforts at compliance fail.
Papa v. Katy Industries, Inc. , 166 F.3d 937, 940 (7th Cir. 1999).
Thus, just as there is a clear legislative intent to protect workers from harmful, discriminatory or retaliatory working conditions, there is an equally clear congressional desire to protect smaller employers from unmanageable statutory burdens.
Additionally, there is neither legislative history or any other authority which supports a rigid interpretation of the regulation ( 29 C.F.R. § 553.101(a)) or precludes an interpretation which allows donation of services when motivated by personal reasons other than strictly "civic, charitable or humanitarian." Stated differently, there is neither legislative history nor controlling authority which explicitly requires a public agency to pay minimum wage and overtime compensation to those persons who perform services without expectation of compensation, for personal reasons not encompassing "civic, charitable and humanitarian" motivations.
Admittedly, the relevant regulation appears to restrict volunteer status to those persons who receive no compensation and perform services for very limited motivations, i.e. "civic, charitable or humanitarian reasons" only. Before this regulation was adopted, the Supreme Court held that a volunteer was an individual who worked without the expectation of compensation for that individual's "'personal purpose or pleasure.'" The regulation was no doubt an attempt to clarify what "personal purposes" might entail. However, to rigidly interpret the regulation and so narrowly restrict the definition of volunteer would sweep persons who donate their time for purely selfish reasons, unrelated to public or community motivation, into the pool of employees for whom minimum wage and overtime requirements apply, even when such a result is contrary to the settled expectations of the parties. For instance, college students who student teach to complete requirements for teacher certifications, law students who volunteer for unpaid internships in the hope of improving their employment opportunities after graduation, and probationers who perform community service under threat of receiving jail time are all motivated, not by civic, charitable or humanitarian goals, but by "personal purposes" with no expectation of compensation. A restrictive reading of the regulation and broad application of the FLSA to these situations is clearly inconsistent with the intentions of the parties and beyond the protective purposes motivating congressional enactment of the FLSA. This Court rejects such a reading of the regulation. I concur with the Todaro Court and conclude that because the FLSA was "not intended to sweep everyone under the minimum wage umbrella," courts must perform a common sense reading of the applicable law and consider the totality of the circumstances of the parties' relationships so as to avoid obviously absurd application of the statute.
Tonv Susan Alamo Foundation v. Secretary of Labor , 471 U.S. 290, 295 (1985), quoting Walling v. Portland Terminal Co. , 330 U.S. 148, 152, 67 S.Ct. 639, 640, 91 L.Ed. 809 (1947).
Todaro , 40 F. Supp.2d, at 230. Indeed, the Supreme Court and myriad other courts in various other types of cases have held that a court can, and should, take a common sense approach to statutory interpretation. See, e.g. Roschen v. Ward , 279 U.S. 337, 339 (1929) ("We agree with all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.); Stitzell. D.O. v. York Memorial Osteopathic Hospital , 754 F. Supp. 1061, 1065 (M.D. Pa. 1991) ("But at the same time, the requirement of strict construction does not preclude our use of common sense in interpreting the exculpatory clause."); Marina Management Corp. v. Brewer , 572 F.2d 43, 47 (2nd Cir. 1978) ("It is, of course, well established in Connecticut that criminal statutes are to be strictly construed, but this canon of statutory construction does not prevent the application of common sense to the language so as to effectuate the intent of the lawmakers.")
b. Totality of the circumstances of the parties' relationship.
The third party officers' relationships with defendant had certain hallmarks of an employment relationship. For instance, the third party officers had to complete an employment application and submit to a background check as a prerequisite to working for defendant. Similarly, they were "hired," and subject to termination by, the City Council. They were required to follow police department rules. They were provided with a badge. There is, however, disputed evidence as to whether they were required to wear and/or were furnished with City uniforms.
Docket Entry 54, P-9, at 138-139; P-10, at 17.
Docket Entry 54, P-5, at 55; P-9, at 141-142.
Docket Entry 54, P-6, at 1; P-9, at 140.
Docket Entry 54, P-9, at 140; P-8, at 81.
On the other hand, it is undisputed that the third party officers were not compensated for the services they provided. Moreover, unlike the paid City employees who were entitled to overtime compensation (the City Secretary, the Court Clerk, the Water Superintendent, and the City Maintenance Man), neither plaintiffs nor the third party officers ever utilized the City's time clock. In other words, they never "punched in."
See Docket Entries 54 and 58.
Docket Entry 54, P-9, at 41-43, 44, 45-46, 48 and 111; P-10, at 66; P-l 1, at 97-99; P-14, at 88-89.
The undisputed evidence establishes that the third party officers agreed to work as law enforcement officers in order to maintain their peace officer commissions. As with the Todaro plaintiffs, the third party officers worked in the potentially dangerous position of law enforcement officer with the knowledge and understanding that they would not be compensated. And, like the Todaro plaintiffs, any possible benefit plaintiffs received for their unpaid work did not require "corresponding detriment or cost" to defendant.
See Todaro , 40 F. Supp.2d, at 231.
Id. at 232.
Considering all of the above, it is my conclusion that both a common sense reading of the FLSA's provisions and the totality of the circumstances surrounding the third party officers' relationships with defendant require the findings that: (1) the third party officers were volunteers, not employees, as that term is defined by the FLSA and its supporting regulations; (2) defendant did not employ the requisite number of officers — five — in any given workweek such that defendant is not an employer, as that term is defined by the FLSA and its supporting regulations; and (3) defendant was not bound to the FLSA's minimum wage and overtime provisions at any time during plaintiffs' tenure with defendant. Thus, defendant is entitled to judgment as a matter of law because plaintiffs cannot prevail on their FLSA claim.
4. Plaintiffs are not entitled to liquidated damages.
In the last section of their motion for partial summary judgment, plaintiffs assert that defendant is liable for liquidated damages as a result of its violations of the FLSA. Liquidated damages are a possible remedy arising from an employer's violations of the FLSA. Because I have concluded that defendant was not bound by the FLSA as a matter of law, I further find that defendant cannot be held liable for liquidated damages.
Docket Entry 54, at 16-17.
VII. Conclusion
For the reasons set forth above, I conclude that plaintiffs are not entitled to the benefits and protections of the FLSA. Consequently, their FLSA claims are without merit. Plaintiffs' motion for partial summary judgment (docket entry 54) is hereby DENIED , defendant's motion for summary judgment GRANTED consistent with this opinion, and judgment as a matter of law entered in favor of defendant.
Finally, all pending motions, including but not limited to plaintiffs' motion for leave of court to amend complaint (docket entry 72), are hereby DENIED AS MOOT .
IT IS SO ORDERED.