What a difference a year makes for professional tennis player Novak Djokovic. Djokovic has won the 2023 Australian Open title in straight sets over Stefanos Tsitsipas to secure his record-tying 22nd grand slam victory.
Last year, Djokovic was deported the day before the Australian Open for not being vaccinated against COVID-19, miring the Open in controversy. Although Djokovic received a three-year ban from the country, the Australian government overturned the ban[i] to allow his return this year. The Australian Open set to move forward this year hoping the focus would be on the on-court play.
Employee or Volunteer?
Unfortunately, controversy returned down under. This year, the uproar was over the discovery that the ball kids were not being paid for their services. Things heated up after Andy Murray’s match against Thanasi Kokkinakis ended after 4 am. Following the match, Murray commented: “If my child was a ball kid for a tournament, they’re coming home at 5am in the morning, as a parent, I’m snapping at that,” Murray said.[ii] The next morning a GoFundMe page was established to raise $25,000 to be distributed to the ball kids by Tennis Australia.[iii]
Whether ball kids should be paid is an interesting question for the Australian Open and professional tennis. It also is a relevant question in the context of the wage and hour laws that govern workplaces in the United States – who is an employee and who is a volunteer?
Volunteers Under the Federal Wage and Hour Law
The Fair Labor Standards Act (FLSA) defines employment very broadly, i.e., “to suffer or permit to work.” However, the Supreme Court has made it clear that the FLSA 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.”
The United States Department of Labor (“DOL”) has interpreted judicial guidance to mean that individuals who volunteer or donate their services (usually on a part-time basis) for public service, religious or humanitarian objectives, and without contemplation of pay, are not considered employees of the religious, charitable or similar non-profit organizations that receive their service.
The DOL explains in its published Fact Sheet:
The FLSA recognizes the generosity and public benefits of volunteering and allows individuals to freely volunteer in many circumstances for charitable and public purposes. Individuals may volunteer time to religious, charitable, civic, humanitarian, or similar non-profit organizations as a public service and not be covered by the FLSA. Individuals generally may not, however, volunteer in commercial activities run by a non-profit organization such as a gift shop. A volunteer generally will not be considered an employee for FLSA purposes if the individual volunteers freely for public service, religious or humanitarian objectives, and without contemplation or receipt of compensation. Typically, such volunteers serve on a part-time basis and do not displace regular employed workers or perform work that would otherwise be performed by regular employees. In addition, paid employees of a non-profit organization cannot volunteer to provide the same type of services to their non-profit organization that they are employed to provide.
For-profit employers should be mindful that employees may not perform voluntary work for any private-sector firm that is subject to the FLSA. Also, private and for-profit organizations cannot compel their employees to waive their FLSA rights.
Conclusion
Volunteers serve a critical role in the non-profit world, including sports and entertainment. It is important for employers in both the non-profit and for-profit sectors to understand the distinction between an employee and a volunteer and ensure that they comply with the FLSA.
As always, please let me know if I can help.
[i] Damien Cave & Matthew Futterman, Novak Djokovic is Cleared to Play in the Australian Open, The New York Times (Nov. 15, 2022), https://www.nytimes.com/2022/11/15/world/australia/novak-djokovic-australian-open.html.
[ii] John Alston, Andy Murray Adds to Outrage Over Australian Open’s UNPAID Ball Kids as he Lashes Out at Tournament’s Treatment of Youngsters After 4am Finish – and Outraged Aussies Set Up a GoFundMe Page, Mail Online (last updated Jan. 19, 2023, 21:32 EST), https://www.dailymail.co.uk/sport/tennis/article-11656087/Andy-Murray-adds-unpaid-ball-kid-outrage-following-Australian-Open-epic-finished-4am.html; Chris Young, Andy Murray Lashes Out Over Ball Kids ‘Farce’ at Australian Open, Yahoo! Sport (Jan. 19 2023), https://au.sports.yahoo.com/andy-murray-lashes-out-over-ball-kids-farce-at-australian-open-022624482.html.
[iii] Australian Open BallKids, GoFundMe (created Jan. 19, 2013), https://www.gofundme.com/f/ballkids-australian-open.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
