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.  No. 10-1048 FAIRFAX COUNTY SCHOOL BOARD,

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. 
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 opinion, 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, Alexandria, 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

2 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
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 district 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 fifteen years as Hayfield Secondary School’s golf coach. Purdham’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 varsity 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 particiPURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 3
pates in several tournaments. For all golf activities, Purdham

transports players to and from the golf course, and he occasionally 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, including a mileage allowance, for his coaching activities. Purdham

also receives a stipend from the School Board in consideration 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

1Somewhat 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. 

4 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
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 overtime, but then it ceased paying overtime. In full context, however, as we explain below, the School Board’s brief deviation

from its longstanding practice of not paying overtime provides 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

PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 5
coaches for the 2005-2006 school year, providing that the

coaches were to be paid $14 per hour and that they were entitled 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 participate in supplemental or extra-curricular activities. This decision was based primarily if not solely on the potential

complications associated with documenting coaches’ hours.

However, before the School Board implemented its new policy, 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 compensation. 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 principals 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 Eastern 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 directors of other extracurricular activities.2

 After the district court

2Purdham also brought claims for wages related to his taking of tickets

at school athletic events and alleged off-the-clock work as a security offi6 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
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 summary 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 Purdham’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 "volunteer." 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" authorized 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. 

PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 7
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 protect "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 Virginia 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," Tennessee 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

8 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
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 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). 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 humanitarian reasons, without promise, expectation or receipt of compensation for services rendered." 29 C.F.R. § 553.101(a). At

the same time, "[v]olunteers may be paid expenses, reasonable 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 volunteer 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 unmisPURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 9
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 services 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 performed to determine whether the totality of the circumstances" 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 status.

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 considered himself to be a volunteer, he is an employee. Second,

Purdham states that he is an employee pursuant to his "employment 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 assistant when he engages in coaching activities and because the

School Board grants Purdham paid administrative leave dur10 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
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 volunteer. 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 surrounding 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 regulations, 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 stipend does not substantially support his claim to employee status under the FLSA. The Supreme Court has defined a

volunteer as "an individual 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 or profit." Alamo, 471 U.S. at 295.

Understandably, Purdham emphasizes the Court’s use of the

PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 11
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 humanitarian 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 humanitarian 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 humanitarian 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 created 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 lifetime." 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."). Consequently, 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 reim12 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
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 controlling 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, common law employee categories or employer-employee classifications 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 Volunteers 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 argument is without merit. The FLSA expressly provides that public entities are authorized to remit to volunteers a "nominal"

fee, "benefits," and reasonable expenses. As such, we conclude that neither the parties’ descriptive terms nor the definition 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 support these contentions, Purdham relies on Krause v. Cherry

PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 13
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 compensation pursuant to a collective bargaining agreement. Id.

The non-career firefighters were not covered by the agreement 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 noncareer 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 relationship with the non-career firefighters as an employeremployee relationship. Second, the firefighters’ only association with the fire district was as firefighters. In contrast, Purdham has a regular full-time job he performs for the School

14 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
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 additional 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 employees such as Purdham to coach or participate in other supplemental or extra-curricular activities. However, before this

plan was implemented, an updated Department of Labor guidance 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 appropriate 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 conPURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 15
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 letter 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 coercion 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 sudden 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 interrelationship 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 Division guidance letters. In a 2006 guidance letter, for example,

the Department of Labor addressed whether a government16 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
employed mechanic who volunteers as a firefighter can be

provided paid administrative leave while he responds to emergency 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 volunteer 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 personal leave, i.e., leave time available to the mechanic that he

could use however he wished.3Id.

We find this conclusory opinion does not aid Purdham in

this case. We recognize "that opinion letters of the Department of Labor are generally accorded some deference." Benshoff, 180 F.3d at 149 n.11. However, when in the context of

a particular case, the guidance is "contrary to the plain language of [the statute] and inject[s] considerations which are

neither called for by the section nor consistent with its purposes," 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 consequently 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 pressure 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. 

3This conclusion reiterates a similar finding in an April 14, 2003 guidance letter. 

PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 17
Regular full-time school employees who elect to coach athletics are clearly distinguishable from full-time governmentemployed mechanics who provide services as volunteer firefighters. 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 during 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 "volunteer" 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 participation in interscholastic contests. 

Manifestly, the rigid prohibition of paid administrative

leave provided for in the guidance letters is contrary to Congress’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 volunteer 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 discourage 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

18 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
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. Individuals 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). 

PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 19
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 incorporates 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 individual 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 limited 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 distinguish 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 surrounding Purdham’s stipend, we are not persuaded that the

20 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD
stipend substantially supports plaintiff’s claim to employee

status. Our conclusion is in accord with the regulations promulgated 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 activities, 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 addition, the stipend is not tied to productivity. The School Board

does not pay a coach more for a team’s successful performance or any less where success is not achieved. 

Furthermore, Purdham likely receives less than the

federally-mandated minimum wage for his coaching activities. 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 Purd4The other factors enumerated in 29 C.F.R. § 553.106(e) address "payment of a nominal amount on a ‘per call’ or similar basis to volunteer firefighters." 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 aroundthe-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.

PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD 21
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 salary for his services as a golf coach. Instead, the stipend Purdham 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. Accordingly, we affirm the district court’s judgment. 

AFFIRMED

5Purdham points the court to a witness who stated that a golf coach

would spend "about 200 hours reasonably" coaching during the golf season. 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 Purdham 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. 

22 PURDHAM v. FAIRFAX COUNTY SCHOOL BOARD