VOLUNTEERS AND PROP 206: WHAT ABOUT MY COACHES?
The Arizona Fair Wages and Healthy Families Act (“Act”) was a ballot initiative passed by Arizona voters on November 8, 2016. Commonly referred to as “Prop. 206,” the initiative set forward a new minimum wage law and, less well publicized, a new minimum paid “sick leave” for all Arizona workers. The minimum wage was raised to $10.00 an hour on January 1, 2017, from the $8.05 an hour it had been prior to the passage of the Act and would eventually be raised to $12.00 an hour in 2020. Beginning in January 2021, the minimum wage will be increased each year by an increase in the cost of living.
The paid sick leave provision goes into effect on July 1, 2017. Depending upon the size of the employer, employees will earn one hour of paid sick leave for every thirty hours worked for the employer. For employers with 15 or more employees, the employees can accrue up to 40 hours of earned paid sick leave a year and can use no more than 40 hours of earned paid sick leave each year. For employers with 14 or fewer employees, the employees can accrue and use up to 24 hours of earned paid sick leave. The details of when the earned paid sick leave may be used by the employee are set out in statute, and school districts have been busy modifying policies to accommodate the new areas and the newly covered employees.
The one question that has continued to come up is “what about coaches?” Most school districts use some combination of teachers, classified staff members, and volunteers from the public to serve as coaches for the school district. Often, some minimal stipend will be paid to these individuals to thank them for their work with the student athletes and to help defray their costs in volunteering. The stipend generally has no relationship whatsoever to the normal salary the individual receives or to the actual hours spent working with the student athletes—not only at practices and competitions, but in ordering equipment, attending seminars, keeping up with changes in coaching techniques, refinements in strategies incorporated in the sports, and safety requirements. Districts who hire coaches, even at minimum wage, soon discover that these additional hours cannot be easily calculated and the “forty-hour work week” can be exceeded during a season, incurring overtime.
For this reason, other than for teachers who are exempt under the Fair Labor Standards Act, most Districts rely on volunteers—whether from the classified staff or from the public—to serve as coaches. With the passage of the Act, however, school districts became quite concerned about the requirements of the minimum wage and, as far as coaches from the public, about the requirements for earned paid sick leave.
The Arizona Industrial Commission (https://www.azica.gov/) (“Commission”) has been placed in charge of interpreting and enforcing the statutes enacted when Proposition 206 passed. As part of its efforts in increasing understanding of the Act, the Commission created a series of “Frequently Asked Questions” and answers to those questions. Although the Commission did not specifically address “volunteers” in the section relating directly to earned paid sick leave, it did discuss volunteers in light of the other portion of the Act: the new minimum wage. In response to the question, “Does the Arizona minimum wage apply to volunteers?” the Commission answered, “No. An individual that works for another person without any express or implied compensation agreement is not an employee under Arizona minimum wage laws. This may include an individual that volunteers services for civic, charitable, or humanitarian reasons that are offered freely and without direct or implied pressure or coercion from an employer, provided that the volunteer is not otherwise employed by the employer to perform the same type of services as those for which the individual proposes to volunteer.”
If, then, volunteers are not employees under the Arizona minimum wage statutes, they are arguably not employees for purpose of the earned paid time off either. In fact, the Act specifically defines “employee” in A.R.S. §23-371 (F) saying, “‘Employee’ is as defined in section 23-362, Arizona Revised Statutes. Employee includes recipients of public benefits who are engaged in work activity as a condition of receiving public assistance.” Turning to A.R.S. §23-362 (A), “‘Employee’ means any person who is or was employed by an employer but does not include any person who is employed by a parent or a sibling, or who is employed performing babysitting services in the employer’s home on a casual basis.”
The Federal Fair Labor Standards Act (“FLSA”) states “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.” The Code of Federal Regulations (“CFR”) tracks the language in the FLSA defining a “volunteer” by saying, “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.” The CFR adds that “[v]olunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers.” Given that, the mere fact that a volunteer is paid a nominal stipend for coaching does not make the volunteer a “paid employee.”
To avoid paying minimum wage and to avoid providing paid time off, then, the coach must be an actual volunteer. This means that the “volunteer” coach was not coerced to “volunteer.” In addition, if the volunteer coach is an employee of the school district, then he/she cannot do the same sort work for the school district as an employee as the work for which the coach is now “volunteering.” If both those facts are true, then the volunteer coach is not subject to receiving either minimum wage or paid earned sick leave for coaching. I recommend that the volunteer, whether a classified employee or a member of the public, fill out a form that requires the volunteer to explain in his/her own words why the person wants to volunteer, have the form explain that he/she is volunteering and won’t be paid—and now—won’t be getting paid time off—for the volunteer work, even if the volunteer receives a small stipend to defray costs in donating his/her time. I’d recommend that the person have the form notarized and presented to the school board who will approve the volunteer in a meeting. Why all the rigmarole? Because the more the person must do and the more the person explains why he/she is volunteering in his/her own words, the less likely it will be that the person can later claim he/she was coerced into volunteering or didn’t agree to volunteer.
 Found in A.R.S. §§ 23-371 through 23-381. The parts of the statute most commonly cited are A.R.S. §23-371, the definition section; A.R.S. §23-372, accrual of earned paid sick time; A.R.S. §23-373, use of earned paid sick time; A.R.S. §23-374, protecting rights of employees; and 23-378, encouraging more generous paid sick leave policies.
 29 USC § 203(e)(4)(A). (Emphasis added). Citations provided by Roger W. Hall, friend and researcher extraordinaire.
 29 CFR § 553.10(a). (Emphasis added)
 To help you tell the difference, “If you want to keep your job as a maintenance man, you better step up and agree to coach the freshman soccer team” is coercion; “John, if you love your son, you darned well better get out there and coach his soccer team” is not coercion.
 For instance, a bus driver cannot volunteer to drive the bus to football games, even if the bus driver’s child is a member of the team. On the other hand, in Purdham v. Fairfax County Sch. Bd., 637 F.3d 421 (4th Cir. 2011), a school security guard was not considered to be the doing the same job as a golf coach; he was found to be a volunteer coach even over his objections that he had not volunteered.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Volunteers and Prop 206, or other Education Law matters, please feel free to contact Candyce B. Pardee at 800.863.6718, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona with a branch office in Yuma, Arizona, and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.