PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES PURDHAM, For himself and
all similarly situated employees of
Defendant,
Plaintiff-Appellant,
and
MICHAEL BOUCHARD, For himself
and all similarly situated
employees of Defendant; FLOYD
WILLIAMS, For himself and all
similarly situated employees of
Defendant,
Plaintiffs,
v.
FAIRFAX COUNTY SCHOOL BOARD, No. 10-1048
Defendant-Appellee,
and
FAIRFAX COUNTY PUBLIC SCHOOLS,
Defendant.
NATIONAL SCHOOL BOARDS
ASSOCIATION; NORTH CAROLINA
SCHOOL BOARDS ASSOCIATION;
SOUTH CAROLINA SCHOOL BOARDS
ASSOCIATION; VIRGINIA SCHOOL
BOARDS ASSOCIATION,
Amici Supporting Appellee.
2 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Liam O’Grady, District Judge.
(1:09-cv-00050-LO-TRJ)
Argued: December 9, 2010
Decided: March 10, 2011
Before Sandra Day O’CONNOR, Associate Justice
(Retired), Supreme Court of the United States, sitting by
designation, and KING and DAVIS, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opin-
ion, in which Justice O’Connor and Judge King joined.
COUNSEL
ARGUED: Nils George Peterson, Jr., Arlington, Virginia, for
Appellant. Thomas Patrick Murphy, HUNTON &
WILLIAMS, LLP, McLean, Virginia, for Appellee. ON
BRIEF: Jeffrey B. Hardie, HUNTON & WILLIAMS, LLP,
McLean, Virginia, for Appellee. Francisco M. Negron, Jr.,
General Counsel, Lisa E. Soronen, Nancy Dinsmore,
NATIONAL SCHOOL BOARDS ASSOCIATION, Alexan-
dria, Virginia, for Amici Supporting Appellee.
OPINION
DAVIS, Circuit Judge:
Appellant James Purdham is employed as a safety and
security assistant by the Fairfax County, Virginia, School
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 3
Board. Purdham filed this action asserting that the School
Board failed to pay him overtime wages for his services as the
coach of a high school golf team, and thereby violated the
Fair Labor Standards Act ("FLSA" or "Act"), 29 U.S.C. § 201
et seq. After the close of discovery, the district court granted
the School Board’s motion for summary judgment. Whether
Purdham is owed overtime wages hinges on whether, as a golf
coach, he is to be deemed an "employee" or a "volunteer"
within the meaning of the FLSA. We hold, for the reasons set
forth within, that the School Board properly deemed Purdham
a volunteer. Accordingly, we affirm the judgment of the dis-
trict court.
I.
A.
For approximately twenty years, Purdham has worked as a
safety and security assistant for the Fairfax County Public
Schools. Purdham’s security duties include monitoring the
school building, assisting in investigations, and monitoring
the arrival and departure of school buses. In addition to his
regular full-time position, Purdham has served for the past fif-
teen years as Hayfield Secondary School’s golf coach. Purd-
ham’s position as a security assistant is not conditioned on his
coaching activities, and he is free to relinquish his coaching
duties at any time without an adverse impact on his full-time
security position.
As part of his coaching services, Purdham maintains a var-
sity golf squad of twelve to sixteen students in addition to a
"B Squad" of several students. Purdham maintains the latter
group in order to avoid excluding students who are interested
in the sport but who do not make the varsity squad. The golf
season begins the first week of August and runs through
November. After tryouts, the regular competitive season
includes eight to ten golf competitions in addition to daily
practices. At the end of the regular season, the team partici-
4 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
pates in several tournaments. For all golf activities, Purdham
transports players to and from the golf course, and he occa-
sionally drives them to their homes.
In addition to his coaching duties during the regular season,
Purdham also: schedules the upcoming season; responds to
telephone calls, e-mails, and text messages from parents and
players; arranges the golf team finances; holds an annual
interest meeting for prospective players; arranges for the team
to complete a community service project; and oversees the
team’s fundraising activities. Purdham estimates that he
spends 400 to 450 hours annually on golf coaching activities.1
The School Board permits Purdham to work on coaching
activities during his regular work day. In addition, when the
golf team has a tournament or activity that occurs during
Purdham’s normal working hours, the School Board permits
him and other coaches to use paid administrative leave while
he is away from his regular duties.
Purdham receives reimbursement for his expenses, includ-
ing a mileage allowance, for his coaching activities. Purdham
also receives a stipend from the School Board in consider-
ation for his services as a coach. The School Board’s stipend
policy mirrors that of other school systems in close proximity
to Fairfax County. When Purdham first began coaching, more
than a decade before filing suit, his stipend was between $500
and $800. More recently, Purdham’s stipend had increased to
$2,114 for the 2008-09 school year (and slightly less than that
for the 2007-08 school year). The stipends for all coaches of
a particular sport are the same, regardless of how many hours
each coach devotes to coaching activities and regardless of a
1
Somewhat inconsistently, Purdham has also stated that he spends
closer to 300 hours annually on golf coaching activities. Yet on another
occasion, Purdham stated that his "best guess" as to the number of hours
he spends coaching the golf team was reflected in an exhibit he prepared
that shows he spent 349 hours on golf coaching activities from July 12,
2008 through October 17, 2008.
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 5
team’s performance. The majority of the Fairfax County
coaches are (like Purdham) regular employees of the School
Board. The most common regular position among golf
coaches was as a health and physical education teacher. The
record shows that the full-time salaries among this group
ranged from $30,191 to $90,076.
If a coach decides to relinquish his or her position and a
replacement is needed, the replacement coach will receive the
same stipend that the predecessor received. That is, the
School Board does not negotiate with prospective coaches
regarding the stipend. Under School Board policy, if a coach
is terminated during the season and disputes the termination,
the coach is entitled to file a grievance.
B.
Purdham’s claims rest significantly on the fact that for a
brief period, the School Board in fact paid its coaches over-
time, but then it ceased paying overtime. In full context, how-
ever, as we explain below, the School Board’s brief deviation
from its longstanding practice of not paying overtime pro-
vides scant support for Purdham’s claims.
From the time Purdham began coaching in the early 1990s
until 2004, the School Board did not pay overtime wages to
Purdham and other coaches. In 2004, however, the School
Board learned of FLSA-related litigation against other school
districts; accordingly, it conducted a wage-hour audit of
similarly-situated schools in order to determine whether
coaches were being managed correctly. As a result of its
study, the School Board decided, out of "an abundance of
caution," to pay non-exempt employees overtime wages based
on a calculation of the hours they had devoted to coaching
activities. Thus, Purdham and his peers received retroactive
payments representing unpaid overtime for hours devoted to
coaching activities for the 2003-2005 golf seasons. Also, as a
result of the audit, the School Board issued contracts to
6 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
coaches for the 2005-2006 school year, providing that the
coaches were to be paid $14 per hour and that they were enti-
tled to time and a half in overtime wages.
Importantly, when the School Board determined to pay the
coaches retroactive overtime and undertook to implement
contractual arrangements with coaches, it also made a policy
decision that, effective July 1, 2006, it would no longer permit
non-exempt employees such as Purdham to coach or partici-
pate in supplemental or extra-curricular activities. This deci-
sion was based primarily if not solely on the potential
complications associated with documenting coaches’ hours.
However, before the School Board implemented its new pol-
icy, the Department of Labor issued a guidance opinion letter
about school coaching and FLSA compliance. Based on this
new guidance from the Department of Labor, the School
Board concluded that its full-time non-exempt employees
were properly deemed "volunteers" in connection with their
coaching activities and thus not eligible for overtime compen-
sation. As a result, the School Board abandoned its policy of
prohibiting non-exempt employees from coaching. This
change in policy was communicated in a letter to all princi-
pals on June 13, 2006. In June 2007, the School Board
informed Purdham of the Department of Labor guidance letter
and that the School Board would not pay overtime wages to
full-time employees who "volunteer" to coach.
C.
Purdham filed this action pursuant to the FLSA against the
School Board in the United States District Court for the East-
ern District of Virginia as a proposed collective action on
behalf of himself and all other School Board employees who
are both (1) regular employees not exempt from the minimum
wage and overtime requirements of the FLSA, and (2) also
serving separately as coaches of school athletics or as direc-
tors of other extracurricular activities.2 After the district court
2
Purdham also brought claims for wages related to his taking of tickets
at school athletic events and alleged off-the-clock work as a security offi-
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 7
denied Purdham’s motion for conditional certification of the
case as a collective action, see Purdham v. Fairfax County
Pub. Sch., 629 F. Supp. 2d 544 (E.D. Va. 2009), and after the
close of discovery, the parties filed cross-motions for sum-
mary judgment on the issue of whether Purdham should be
deemed an "employee" within the meaning of the FLSA in
connection with his services as a golf coach.
After hearing oral argument, the district court granted the
School Board’s motion for summary judgment, denied Purd-
ham’s cross-motion, and held that Purdham was not to be
deemed an "employee" with respect to his services as the
coach of the golf team but instead, was to be deemed a "vol-
unteer." The court reasoned that Purdham was a volunteer
because Purdham was not doing the same type of work as
required by his regular position as a security assistant and
because the stipend he received was a "nominal fee" autho-
rized by law to be paid to volunteers. Purdham noted a timely
appeal, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
We review the grant of summary judgment de novo. See
Canal Ins. Co. v. Distribution Servs., Inc., 320 F.3d 488, 491
(4th Cir. 2003); Dixon v. Edwards, 290 F.3d 699, 710 (4th
Cir. 2002). Summary judgment is appropriate only if taking
the evidence and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party, "no material
facts are disputed and the moving party is entitled to judgment
as a matter of law." Ausherman v. Bank of Am. Corp., 352
F.3d 896, 899 (4th Cir. 2003); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
cer. Those claims have been dismissed and are not part of the present
appeal. Additionally, the similar claims of two other named plaintiffs have
been dismissed and are not part of the present appeal.
8 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
III.
A.
The FLSA generally requires that all covered employers
compensate their employees at the rate of one and one-half
times their normal hourly rate for all hours worked in excess
of a forty-hour week. See 29 U.S.C. § 207(a)(1). The Act is
"remedial and humanitarian in purpose," and is meant to pro-
tect "the rights of those who toil, of those who sacrifice a full
measure of their freedom and talents to the use and profit of
others." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local
No. 123, 321 U.S. 590, 597 (1944). The FLSA should be
broadly interpreted and applied to effectuate its goals. See
Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S.
290, 296 (1985).
Individuals seeking compensation pursuant to the FLSA
"bear the initial burden of proving that an employer-employee
relationship exists and that the activities in question constitute
employment for purposes of the Act." Benshoff v. City of Vir-
ginia Beach, 180 F.3d 136, 140 (4th Cir. 1999). However, the
Supreme Court has cautioned that the FLSA "must not be
interpreted or applied in a narrow, grudging manner," Tennes-
see Coal, 321 U.S. at 597, and that exemptions from FLSA
coverage "are to be narrowly construed against the employers
seeking to assert them," Arnold v. Ben Kanowsky, Inc., 361
U.S. 388, 392 (1960).
Under the FLSA, "‘employ’ [means] to suffer or permit to
work." 29 U.S.C. § 203(g). To be sure, this definition was
"not intended to stamp all persons as employees who, without
any express or implied compensation agreement, might work
for their own advantage on the premises of another," nor
should it be interpreted so as to "sweep under the Act each
person who, without promise or expectation of compensation,
but solely for his personal purpose or pleasure, work[s] in
activities carried on by other persons either for their pleasure
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 9
or profit." Walling v. Portland Terminal Co., 330 U.S. 148,
152 (1947). For example, if an individual is a "volunteer"
instead of an "employee," Congress created an exemption to
the FLSA’s coverage applicable in the public employment
context. In particular, Congress provided that "any individual
who volunteers to perform services for a public agency" is
exempt from FLSA coverage 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 volun-
teered; and (ii) such services are not the same type
of services which the individual is employed to per-
form for such public agency.
29 U.S.C. § 203(e)(4)(A). Thus, where a public employee
engages in services different from those he or she is normally
employed to perform, and receives "no compensation," or
only a "nominal fee," such work is exempt from the FLSA
and the public employee is deemed a volunteer.
The FLSA does not itself define "volunteer," but pursuant
to a Department of Labor regulation promulgated under the
FLSA, a "volunteer" is an "individual who performs hours of
service for a public agency for civic, charitable, or humanitar-
ian reasons, without promise, expectation or receipt of com-
pensation for services rendered." 29 C.F.R. § 553.101(a). At
the same time, "[v]olunteers may be paid expenses, reason-
able benefits, a nominal fee, or any combination thereof, for
their service without losing their status as volunteers." 29
C.F.R. § 553.106(a). It is critical that the facts show the vol-
unteer offers his or her services "freely and without pressure
or coercion, direct or implied, from an employer." 29 C.F.R.
§ 553.101(c). Finally, an individual may not be deemed a
"volunteer" if the individual is "otherwise employed by the
same public agency to perform the same type of services as
those for which the individual proposes to volunteer." 29
C.F.R. § 553.101(d). This latter provision reflects the unmis-
10 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
takable intention of the Department of Labor (and no doubt of
Congress) to prohibit "any manipulation or abuse of minimum
wage or overtime requirements through coercion or undue
pressure upon individuals to ‘volunteer’ their services." 29
C.F.R. § 553.101(b).
The regulatory definition of volunteer should be applied "in
a common-sense manner, which takes into account the totality
of the circumstances surrounding the relationship between the
individual providing services and the entity for which the ser-
vices are provided." Cleveland v. City of Elmendorf, 388 F.3d
522, 528 (5th Cir. 2004). Finally, the question of whether an
individual is a volunteer is a matter of law to be determined
by the court. See Castillo v. Givens, 704 F.2d 181, 185 (5th
Cir. 1983), cert. denied, 464 U.S. 850 (1983). Accordingly,
we review "the objective facts surrounding the services per-
formed to determine whether the totality of the circum-
stances" establish volunteer status, City of Elmendorf, 388
F.3d at 528, or whether, instead, the facts and circumstances,
objectively viewed, are rationally indicative of employee sta-
tus.
B.
With these principles in mind, we examine the plaintiff’s
assertion that, with respect to his service as golf coach, he
must be deemed an "employee" entitled to overtime pay under
the FLSA. First, Purdham states that because he never consid-
ered himself to be a volunteer, he is an employee. Second,
Purdham states that he is an employee pursuant to his "em-
ployment contract" and Virginia law. Third, Purdham states
that the School Board’s retroactive payment of overtime
wages for 2003-2005 precludes the School Board’s deeming
him a volunteer. Fourth, Purdham states that he is an
employee under the Act because the School Board pays him
for the same type of services he performs as a security assis-
tant when he engages in coaching activities and because the
School Board grants Purdham paid administrative leave dur-
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 11
ing the regular work day for coaching activities. Finally,
Purdham states that he is paid more than a "nominal fee" for
his coaching services, thereby precluding volunteer status
under the FLSA. We examine these contentions in turn and
find, consistent with the district court’s analysis, they do not
substantially support the conclusion that Purdham should be
deemed an employee with respect to his services as the golf
coach.
1.
Purdham first asserts that he never intended to volunteer as
a golf coach, and therefore, should not be classified as a vol-
unteer. However, the determination of whether an individual
is an employee or a volunteer under the FLSA is a question
of law. Consequently, we look at the objective facts surround-
ing the services performed to determine whether the totality
of the circumstances supports a holding that, under the statute
and under the Department of Labor’s implementing regula-
tions, Purdham is most appropriately deemed a volunteer. See
City of Elmendorf, 388 F.3d at 528.
Here, Purdham became the coach of the golf team when the
director of athletics asked him if he would be interested in the
position. Purdham was never coerced or pressured into
becoming a coach and his employment as a security assistant
is not dependent on his coaching; he is free to relinquish his
role as coach at anytime without fear that doing so will have
any impact on his full-time employment.
The fact that Purdham may be motivated, in part, by his sti-
pend does not substantially support his claim to employee sta-
tus under the FLSA. The Supreme Court has defined a
volunteer as "an individual who, without promise or expecta-
tion of compensation, but solely for his personal purpose or
pleasure, work[s] in activities carried on by other persons
either for their pleasure or profit." Alamo, 471 U.S. at 295.
Understandably, Purdham emphasizes the Court’s use of the
12 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
term "solely," but the Department of Labor regulation at 29
C.F.R. § 553.101 was promulgated after the Alamo decision,
and omits any requirement that the motivation be "solely" for
personal purpose. Consequently, the "regulatory definition
does not require that the individual be exclusively, or even
predominantly, motivated by civic, charitable, or humanitar-
ian reasons." Todaro v. Township of Union, 40 F. Supp. 2d
226, 230 (D.N.J. 1999). Rather, what is required is that the
individual must be motivated by civic, charitable or humani-
tarian reasons, at least in part. See id.
Viewed objectively, this case presents a classic example of
an individual who is motivated, in significant part, by human-
itarian and charitable instincts. Purdham is motivated by his
long-standing love of golf and his dedication to his student
athletes. He prefers coaching over obtaining a part-time job
because it is a "lifestyle choice" to coach; coaching young
golfers provides him with "satisfaction." J.A. 117-21. He cre-
ated a "B squad" because he "hate[s] cutting kids" from the
golf program and has the "philosophy" that "it’s not costing
[the school] anything" to get more students interested in golf.
Finally, he enjoys coaching because golf is "a sport of a life-
time." J.A. 74-75.
Also relevant to the objective, totality of the circumstances
analysis is how other coaches view coaching positions. It is
the culture of high school athletics for the coaches to consider
themselves volunteers. The School Board submitted to the
district court the declarations of eighteen high school coaches
who consider themselves volunteers. Cf. Isaacson v. Penn
Community Services, 450 F.2d 1306, 1309 (4th Cir. 1971)
("Particularly in the case of . . . hospitals, museums and
schools, the role of the volunteer is not unknown."). Conse-
quently, we have no hesitation in concluding that, despite
Purdham’s mixed motivations, the record amply supports the
conclusion that Purdham "volunteered" to serve as the golf
coach within the contemplation of the FLSA. The fact that he
is motivated in part by receipt of his stipend (or expense reim-
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 13
bursements) does not significantly bolster his assertion that he
is to be treated as an employee for the services he provides as
a coach.
2.
We next examine Purdham’s assertion that pursuant to his
"employment contract," he should be treated as an employee.
Initially, we note that the terms the parties use are not control-
ling when we inquire whether an individual is an employee or
a volunteer under the FLSA. See Walling, 330 U.S. at 151
("[I]n determining who are ‘employees’ under the Act, com-
mon law employee categories or employer-employee classifi-
cations under other statutes are not of controlling
significance."). Rather, the court’s inquiry is whether, in light
of the statutory and regulatory indicia underlying the FLSA,
an individual is an employee.
Purdham also relies on the Virginia Government Volun-
teers Act, which defines a volunteer as an individual who
freely provides goods or services to a state or local agency
"without any financial gain." Va. Code § 2.2-3601. This argu-
ment is without merit. The FLSA expressly provides that pub-
lic entities are authorized to remit to volunteers a "nominal"
fee, "benefits," and reasonable expenses. As such, we con-
clude that neither the parties’ descriptive terms nor the defini-
tion of a volunteer under state law controls the determination
of whether an individual is appropriately deemed a volunteer
under the FLSA.
3.
We next turn to Purdham’s contention that because the
School Board paid him retroactive overtime, he should be
deemed an employee. Purdham also asserts, relatedly, that
after the School Board paid him the retroactive overtime, it
improperly converted all coaches to volunteer status. To sup-
port these contentions, Purdham relies on Krause v. Cherry
14 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
Hill Fire Dist. 13, 969 F.Supp. 270, 272 (D.N.J. 1997). In
Krause, a fire district relied on both career firefighters and
non-career firefighters. The career firefighters received com-
pensation pursuant to a collective bargaining agreement. Id.
The non-career firefighters were not covered by the agree-
ment and were compensated at a rate of $8.00 per hour for
day shifts and $5.05 per hour for overnight shifts. Id. After
nineteen months, the fire district restructured the department
and began paying the non-career firefighters a flat rate of
$20.00 per eight-hour shift. Id. As a result, some of the non-
career firefighters, who had been earning $8.00 per hour,
would only earn $20 per shift. Id.
The Krause court determined that the fire district could not
restructure the positions so that once-compensated firefighters
were converted into volunteers. Id. at 278. The court reasoned
that the FLSA forbids such a reclassification because it "flies
in the face of the specific provision of the regulations which
state that: ‘An individual shall not be considered a volunteer
if the individual is otherwise employed by the same public
agency to perform the same type of services as those for
which the individual proposes to volunteer.’" Id. (citing 29
C.F.R. § 553.101(d)). The court reasoned that having "gone to
these lengths to protect employees, ultimately even from
themselves, it is unlikely that Congress intended to permit
employers to change unilaterally an employee’s status to that
of a volunteer." Id.
Here, Purdham’s situation as an athletic coach is clearly
distinguishable from the situation of the firefighters in
Krause. First, prior to the payment of overtime for the 2003-
2005 golf seasons, Purdham never received overtime pay in
addition to his stipend for the ten years he previously coached
golf. In contrast, the fire district in Krause initiated its rela-
tionship with the non-career firefighters as an employer-
employee relationship. Second, the firefighters’ only associa-
tion with the fire district was as firefighters. In contrast, Purd-
ham has a regular full-time job he performs for the School
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 15
Board as a security assistant. Third, Purdham’s coaching
hours have never affected his permanent employment.
Our conclusion is supported by the language and evident
intent of the relevant statutory and regulatory provisions. The
statute and regulations both are designed to discourage public
employers from pressuring an employee to volunteer extra
services in order to keep his or her job. In contrast, Purdham
was never pressured to volunteer as a golf coach in order to
maintain his employment with the School Board.
The School Board’s change in policy is further explained
by its effort to ensure compliance with the FLSA rather than
any effort at improperly pressuring employees to work addi-
tional hours under the guise of volunteer status. From the time
Purdham started coaching until 2004, the School Board did
not pay overtime wages to coaches based on its understanding
of then-current Department of Labor guidance. Purdham
received overtime pay for his coaching services for the 2003-
2005 golf seasons out of "an abundance of caution" because
of lawsuits naming other school districts. As a result of this
understanding, the School Board announced that effective
July 1, 2006, it no longer would permit non-exempt employ-
ees such as Purdham to coach or participate in other supple-
mental or extra-curricular activities. However, before this
plan was implemented, an updated Department of Labor guid-
ance letter notified the School Board that non-exempt
employees who are volunteers can continue to coach and
receive a nominal stipend.
The School Board’s conduct in attempting to remain in
compliance with federal law is wholly unlike the conduct of
the fire district in Krause. Additionally, the Department of
Labor has recognized that the Krause holding is not appropri-
ate in all situations. In a 2006 guidance letter, the Department
of Labor addressed a situation where a city council member
was hired by the city as a firefighter. DOL Wage-Hour Op.
Ltr. July 24, 2006. The city sued the individual for state con-
16 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
flict of interest violations stemming from the fact that he was
both a city council member and, as a firefighter, a city
employee. To settle the litigation, the council member agreed
to terminate his firefighter "employment" but he wanted to
continue as a non-paid volunteer firefighter. The guidance let-
ter focused its inquiry on whether the council member was
coerced into volunteering "in order to retain his position as
City Council member." DOL Wage-Hour Op. Ltr. July 24,
2006. The letter concluded that there was no evidence of coer-
cion because there was "no evidence that he was obliged or
even encouraged to volunteer as a firefighter in order to retain
his position either as City Council member or mayor." Id.
Similarly here, the School Board did not coerce Purdham into
volunteering in order to retain his security position.
In sum, neither in its proactive decision to pay overtime
wages to coaches in Purdham’s classification, nor in its sud-
den change in policy in the face of evolving legal standards
as clarified by the federal agency charged with enforcing the
Act, has the School Board fatally deviated from its longtime
view that coaches should be treated as volunteers. Purdham’s
attempt to leverage those changes into support for his claims
is unavailing.
4.
Next, Purdham seems to suggest that he is paid for the
same type of services he provides the School Board as a
security assistant as he provides as a golf coach. In particular,
Purdham contends that the School Board recognizes the inter-
relationship between his duties as a security assistant and his
services as a golf team coach by allowing Purdham paid
administrative leave from his day job when a golf event
occurs during the school day.
Purdham bases this claim on several Wage and Hour Divi-
sion guidance letters. In a 2006 guidance letter, for example,
the Department of Labor addressed whether a government-
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 17
employed mechanic who volunteers as a firefighter can be
provided paid administrative leave while he responds to emer-
gency calls as a firefighter. DOL Wage-Hour Op. Ltr. August
7, 2006. The letter opined that because the agency paid the
individual his regular wages while allowing him to use paid
administrative leave during the workday to respond to fire
emergencies, the agency risked converting his status as a vol-
unteer firefighter into an employee for all of the time he spent
providing services as a firefighter. According to the letter, in
order for the individual to avoid "jeopardiz[ing]" his status as
a volunteer firefighter, the employer would need to charge his
time responding to calls during the regular workday to per-
sonal leave, i.e., leave time available to the mechanic that he
could use however he wished.3 Id.
We find this conclusory opinion does not aid Purdham in
this case. We recognize "that opinion letters of the Depart-
ment of Labor are generally accorded some deference." Ben-
shoff, 180 F.3d at 149 n.11. However, when in the context of
a particular case, the guidance is "contrary to the plain lan-
guage of [the statute] and inject[s] considerations which are
neither called for by the section nor consistent with its pur-
poses," we are obliged to reject them. Id. Here, § 203(e)(4)(A)
was "enacted as an amendment to the FLSA in 1985 in order
to exempt from the definition of ‘employee,’ and conse-
quently from the FLSA pay requirements, those individuals
who volunteer services to governmental entities." Id. at 147;
see also S. Rep. No. 99-159, at 10 (1985) ("The committee
does not intend to discourage or impede volunteer activities
undertaken for humanitarian purposes. At the same time, the
committee wishes to prevent any manipulation or abuse of
minimum wage requirements through coercion or undue pres-
sure upon employees to ‘volunteer.’"). We find that a blanket
prohibition on the provision of paid administrative leave to
volunteers is inconsistent with the statutory goals.
3
This conclusion reiterates a similar finding in an April 14, 2003 guid-
ance letter.
18 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
Regular full-time school employees who elect to coach ath-
letics are clearly distinguishable from full-time government-
employed mechanics who provide services as volunteer fire-
fighters. Without question, fire emergencies can and do occur
at anytime of the day or night. Thus, it would be possible for
a government-employed mechanic to schedule his volunteer
activities in such a way as not to conflict with his full-time
employment. If a government employer chooses to release the
erstwhile volunteer firefighter to respond to emergencies dur-
ing the regular work day, there may be a risk of overreaching
to the detriment of the employee.
On the other hand, school athletics most often require a
coach, particularly of a sport requiring daylight, to "volun-
teer" during the school day. For example, if a sports team has
an away game, it is necessary for the coach to be able to leave
the school campus before the end of the school day in order
to properly supervise the team and manage the team’s partici-
pation in interscholastic contests.
Manifestly, the rigid prohibition of paid administrative
leave provided for in the guidance letters is contrary to Con-
gress’s intent not to discourage or impede volunteer activities.
Under the guidance letters’ interpretation, school employees
would have only impractical options if they wanted to volun-
teer to coach: (1) they could use personal leave or (2) take
unpaid leave. Under the guidance letters’ rationale, it would
be highly impractical to volunteer and hence would discour-
age school employees from volunteering, in direct conflict
with the goals of Congress in enacting § 203(e)(4)(A).
Similarly, Purdham contends that he must be deemed an
employee because coaches are permitted to use the school
system’s grievance procedure and because the School Board
makes deductions from his stipend for taxes and to place
funds into a retirement fund. Neither of these contentions is
persuasive. Access to a grievance procedure has no bearing on
the voluntariness determination. In addition, the record does
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 19
not support Purdham’s retirement deduction contention. The
only person who testified about the retirement fund issue,
Kevin North, was not the designated witness for the subject
matter. Nevertheless, even if retirement deductions were
taken from Purdham’s stipend, the Act and its implementing
regulations expressly permit provision of reasonable benefits
to volunteers, see 29 U.S.C. § 203(e)(4)(A)(i); 29 C.F.R.
553.106(d), and we discern no good reason to regard such an
indirect benefit as enhanced retirement benefits based on a
percentage of the stipend as outside this authority.
5.
Finally, we turn to Purdham’s contention that his coaching
stipend is more than the "nominal fee" permitted by law. Indi-
viduals do not lose their volunteer status if they receive a
"nominal fee" from a public agency. 29 C.F.R. § 553.106(a).
A nominal fee "is not a substitute for compensation and must
not be tied to productivity." 29 C.F.R. § 553.106(e). The
Department of Labor offers the following guidance:
The following factors will be among those examined
in determining whether a given amount is nominal:
The distance traveled and the time and effort
expended by the volunteer; whether the volunteer
has agreed to be available around-the-clock or only
during certain specified time periods; and whether
the volunteer provides services as needed or
throughout the year. An individual who volunteers to
provide periodic services on a year-round basis may
receive a nominal monthly or annual stipend or fee
without losing volunteer status.
29 C.F.R. § 553.106(e). The regulation concludes by stating
that the nominal fee inquiry should be made by examining
"the total amount of payments made . . . in the context of the
economic realities of the particular situation." 29 C.F.R.
§ 553.106(f).
20 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
The "economic realities" language in § 553.106(f) is
derived from the "economic realities test" that has been used
in determining whether an individual is an employee or an
independent contractor. See, e.g., Garrett v. Phillips Mills,
721 F.2d 979 (4th Cir. 1983) ("[W]hether an individual is an
employee . . . is properly determined by analyzing the facts
of each employment relationship under a standard that incor-
porates both the common law test derived from principles of
agency and the so-called ‘economic realities’ test first
announced in Bartels v. Birmingham, 332 U.S. 126 (1947).").
In Bartels, the Supreme Court stated that "employees are
those who as a matter of economic reality are dependent upon
the business to which they render service." Bartels, 332 U.S.
at 130.
Other courts have looked to the economic realities test in
the FLSA context in determining whether an individual is an
employee or a volunteer. See, e.g., Rodriguez v. Township of
Holiday Lakes, 866 F.Supp. 1012, 1017 (S.D. Tex. 1994).
However, they have concluded that the test "is best suited to
determine whether, as a matter of economic reality, an indi-
vidual is in business for himself or herself as an independent
contractor, or is an employee of another." Krause, 969 F.
Supp. at 274-75; Cleveland v. City of Elmendorf, 2004 WL
305609 (W.D. Tex Jan. 23, 2004), aff’d, 388 F.3d 522 (5th
Cir. 2004). As a result, the economic realities test "is of lim-
ited utility in determining whether an individual is an
‘employee,’ as opposed to a ‘volunteer.’" Krause, 969 F.
Supp. at 274-75; see also Rodriguez, 866 F. Supp. at 1020
("[T]he ‘economic reality test’ is inapplicable in trying to dis-
tinguish an employee from a volunteer where no payments at
all are made between the parties."); Todaro, 27 F. Supp. 2d
at 534-35 (economic realities test "is not as useful when
attempting to distinguish volunteers from employees, where
there is no economic relation to measure.").
Upon careful consideration of all of the circumstances sur-
rounding Purdham’s stipend, we are not persuaded that the
PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 21
stipend substantially supports plaintiff’s claim to employee
status. Our conclusion is in accord with the regulations pro-
mulgated under the FLSA. The regulations provide that a
nominal fee should (1) not be a "substitute for compensation";
(2) "must not be tied to productivity"; and (3) "should be
examined by the total amount of payments made . . . in the
context of the economic realities of the particular situation."
See 29 C.F.R. §§ 553.106(e)-(f).4
Here, Purdham’s two most recent coaching stipends were
$2,114 and $2,073. The School Board pays a fixed stipend
amount regardless of an individual’s time and effort. Coaches
are free to spend as much, or as little, time as they choose on
coaching activities such as clinics, scheduling offseason activ-
ities, try-outs, and reviewing player performances; the stipend
amount will not change. Accordingly, as a matter of law, the
stipend does not "compensate" for services rendered. In addi-
tion, the stipend is not tied to productivity. The School Board
does not pay a coach more for a team’s successful perfor-
mance or any less where success is not achieved.
Furthermore, Purdham likely receives less than the
federally-mandated minimum wage for his coaching activi-
ties. Initially, Purdham stated that he spends 400 to 450 hours
annually on golf coach activities. He later stated that he spent
closer to 300 hours annually. Later, he stated that he spent
349 hours in the golf season, excluding off-season hours, on
golf coaching activities. As a result, the average figure Purd-
4
The other factors enumerated in 29 C.F.R. § 553.106(e) address "pay-
ment of a nominal amount on a ‘per call’ or similar basis to volunteer fire-
fighters." In those situations, the regulation provides that the "following
factors will be among those examined in determining whether a given
amount is nominal: The distance traveled and the time and effort expended
by the volunteer; whether the volunteer has agreed to be available around-
the-clock or only during certain specified time periods; and whether the
volunteer provides services as needed or throughout the year . . . ." We
conclude that these factors are inapplicable in the athletic coach setting.
22 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
ham gave is between 350 to 400 hours.5 Even assuming he
only worked 350 hours, the result is that Purdham was paid
$6.05 per hour in 2008 and $5.90 per hour in 2007. While the
2008 rate is five cents above the minimum wage, both of
these figures are considerably less than the $25.69 per hour he
is paid for his regular employment as a security assistant.
Therefore, we conclude that Purdham is not being paid a sal-
ary for his services as a golf coach. Instead, the stipend Purd-
ham receives is a "nominal fee" as permitted for volunteers
under the FLSA.
IV.
In summary, we conclude that as a matter of law, under an
objective view of the totality of the circumstances, the School
Board correctly rejected Purdham’s claim to employee status
during the time he spends coaching the golf team. Accord-
ingly, we affirm the district court’s judgment.
AFFIRMED
5
Purdham points the court to a witness who stated that a golf coach
would spend "about 200 hours reasonably" coaching during the golf sea-
son. J.A. 722-23. Similarly, another witness stated that when he was a
swimming coach, his range of hours was 150 to 175. J.A. 745-47. Neither
of these estimates is an accurate accounting for the number of hours Purd-
ham spends in coaching golf. At bottom, we find unpersuasive Purdham’s
lowered estimates of the time he spends on coaching activities in an effort
to have us treat the stipend as approximating an hourly wage that meets
the federally-mandated minimum wage.