By Anna B. Cole, Esq.
In any given year, innumerable local, state, and federal elections are being held across the country. These elections could not take place without the support of countless poll workers who assist local municipalities by counting ballots, supervising the checklists, assisting voters, etc. Questions are often raised regarding the status of these workers. Are they volunteers or employees? If they are otherwise employed by the municipality, is the time spent at the polling place “hours worked” for the purpose of minimum wage and overtime calculation?
In general, individuals who perform services for an employer are considered employees and, unless they are otherwise exempt, are entitled to receive minimum wage for every hour worked and overtime compensation in accordance with federal and state wage and hour law. However, the Fair Labor Standards Act (“FLSA”) provides that “individuals performing volunteer services for units of State and local governments will not be regarded as ‘employees’ under the statute.” 29 C.F.R. 553.100 (emphasis added); 29 U.S.C. 203(e)(4). In order to be properly classified as a “volunteer” the individual must be voluntarily and without coercion performing “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), (c). Nevertheless, “volunteers 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. 553.106a). Accordingly, members of the public are allowed to volunteer as poll workers so long as they are providing such services voluntarily and so long as they do not expect to receive any compensation other than reimbursement for expenses or a nominal fee. For example, in one of the few court cases to address this subject, the Eighth Circuit Court of Appeals ruled that two election workers were properly classified as volunteers, and thus were not entitled to minimum wage, despite the fact that they had been paid $35.00 per day and $50.00 per day, respectively, for their service as election volunteers. Evers v. Tart, 48 F.3d 319, 320-21 (8th Cir. 1995).
The FLSA also permits individuals who are otherwise employed by a public agency to provide volunteer services to that public agency so long as they otherwise qualify as a volunteer and so long as the volunteer services they perform are not the “same type of services” for which the individual is employed to perform for the public agency. 29 C.F.R. 553.101(d). Therefore, before allowing employees (especially non-exempt employees) to volunteer as poll workers, municipalities would be wise to carefully analyze any similarities between the employee’s regular work and the services they would be providing during the election. If the work is sufficiently dissimilar, then the municipality may be able to properly classify the hours spent at the polling place as volunteer hours and exclude them from the employee’s “hours worked” for the municipality. However, if the work is similar, then it is generally a best practice to err on the side of caution by treating the hours spent at the polling place as “hours worked” and including them in the municipality’s calculation of minimum wage and overtime for the workweek for that employee. In such cases, the employee would be paid either their regular hourly rate for the time spent working at the polling place or a separately agreed-upon rate. Either is acceptable so long as the employee agrees to the rate before the work is performed and so long as the employee receives at least minimum wage for every hour worked.
Towns and cities across New Hampshire rely on poll workers to ensure that elections run smoothly. In advance of each election, municipalities should review their own ordinances, policies, and procedures to determine how it staffs its polling places and to ensure that its workers are properly classified and paid, if necessary.
Anna Cole is an attorney with the Drummond Woodsum’s Labor and Employment Group. Her practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2018 Drummond Woodsum. These materials may not be reproduced without prior written permission.”
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