Persons Who Perform Community Service as Condition of ACD Are Not “Employees” Under the FLSA

In Doyle v. City of New York (SDNY 14-02831, March 4, 2015), the Southern District of New York held, in a case of first impression, that persons who perform court-ordered community service as a condition of an Adjournment in Contemplation of Dismissal (ACD) are not “employees” within the meaning of the federal Fair Labor Standards Act (FLSA) and are hence not entitled to be paid the minimum wage. The court thus granted defendant’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

Judge Furman initially determined that the plaintiffs – who were granted ACDs, and required to perform community service, for offenses including subway turnstile jumping – did not qualify as exempt “volunteers”, since they “had no ‘civic, humanitarian, or charitable reasons’ at all for performing the work that they did on behalf of the City” within the meaning of 29 C.F.R. § 553.101(a).

Although plaintiffs were not “volunteers”, the court held that they were nevertheless not covered by the FLSA because they are not “employees”, noting that “people who perform community service as a condition of an ACD do not do so for the purpose of enabling them to earn a living …, or indeed to receive financial compensation of any kind.” It also found that “interpreting the term ’employee’ to include those in Plaintiffs’ position would not be consistent with Congress’s purposes in enacting the FLSA.”

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