Volunteers Are Not Subject to FMLA Protections

Pickstown $964 Pierre $10,000 Pollock $1,388 Potter Co Mosquito Mngmt $4,801 Presho $2,027 Pukwana $2,237 Ramona $1,176 Ravinia $1,175 Raymond $2,023 Redfield $5,013 Reliance $752 Revillo $1,387 Roscoe $1,389 Rosholt $1,814 Salem $2,035 Scotland $1,394 Selby $1,604 Seneca $962 Sinai $963 Sioux Falls Vector Control $20,000 Sisseton $3,955 Spink County $8,546 Springfield $982 Stickney $1,177 Sturgis $4,730 Summit $753 Tabor $2,238 Tea $2,484 Timber Lake $2,450 Toronto $964 Tripp $1,180 Tulare $1,176 Twin Brooks $751 Tyndall $1,185 Valley Springs $758 Veblen $967 Vermillion $4,770 Viborg $2,878 Virgil $750 Volga $3,312 Wagner $2,090 Wall $2,030 Walworth County $4,083 Warner $2,239 Watertown $7,635 Waubay $2,028 Webster $3,949 Wentworth $1,176 Wessington Springs $1,820 Westport $2,659 White Lake $1,390 White River $2,028 Whitewood $1,819 Wilmot $1,815 Winner $5,231 Wolsey $2,238 Woonsocket $3,089 Worthing $1,395 Yale $1,175 Yankton County $5,664

TOTAL $490,371

By A. Stevenson Bogue, Attorney, McGrath North

For determining the potential coverage under the Family and Medical Leave Act, the definition of “employee” under the Fair Labor Standards Act is deferred to. In Section 825.102 of the regulations under the FMLA, the definition of “employee” is somewhat circular. It includes “any individual employed by an employer.” A little light is thrown on that term when the term “employ” is defined as “to suffer or permit to work.” The practical application of that term is that an “employee,” under the Fair Labor Standards Act and the FMLA, must actually be compensated by the employer. If the person designated as a “volunteer” is truly a volunteer (and the term cannot include a person who is employed by the same entity or a related entity and who wants to also perform some voluntary services) they would not be an “employee” and would not be subject to the protections of the FMLA. Of course, if they are truly a “volunteer,” there is no continuing obligation to employ them in any case, and if a municipality with a true volunteer wanted to rid itself of that volunteer, it could do so.

A. Stevenson Bogue, Attorney, shareholder at McGrath North can be contacted at sbogue@mcgrathnorth.com or 402-341-3070.