labor practices and business models aside, something else to consider investigating is the pervasiveness of 501.c.3 charities and endurance sports. I'd be curious to know more about the relationship between the two.

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Might reach out to the employment lawyer/triathlete who wrote this blog post: http://www.somerandomthursday.com/...p-what-happens-next/.

i know her. she's crackerjack.

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Dan Empfield
aka Slowman

There are many kinds of "nonprofits." Most of your local triathlon clubs, US Masters Swimming clubs, etc. are 501(c)(4) organizations. These organizations are referred to as "social welfare" organizations. In general, a 501(c)(4)'s income is not taxable. The main distinction for most of us is that donations to a 501(c)(4) are not tax deductible. A 501(c)(3), often referred to as a charitable organization or public charity, is eligible for tax deductible donations. Youth swim teams and local bicycle advocacy organizations are typically 501(c)(3)s, although the latter often operate in conjunction with a 501(c)(4) to support political advocacy (which gets into the whole Citizens United thing).

Kelly has a really good summary of the Liebesman v. Competitor Group complaint (which someone linked above). You can also find a copy here.

If anyone takes this on, they should consider the issue from the volunteer's perspective. Who is the government to tell me I can't stand by the side of the road and hand out cups of water unless I get paid? It seems a document could be drafted for volunteers to sign which triggers their rights to freedom of expression, speech, and association. "I, Joe Volunteer, desire to join together with other like minded individuals to support the sport of triathlon and express our encouragement of the athletes by [describe activity]." Then, in the general release I assume all directors have volunteers sign, you would add "wage claims" to the laundry list of things they agree they won't sue the race director for. I'm not sure if this is effective under the FLSA, but if it is then you have a document that would offer some protection. If the government tried to sue you for unpaid wages, you could raise the volunteers' rights of free association and expression as a defense. If a volunteer did, you could use the release as a defense.
Although I practice law, this is all off the cuff - a lot of research would need to be performed before anyone could say this would work - and even then, we all know anyone can sue anyone for anything. However, it occurs to me that everyone seems to be focusing on the race organizations' obligations - someone should consider the volunteers' rights.
Good luck!

You sound like one of those nuts who is convinced the government does not have the right to levy income taxes. Good luck with that.

Best practice, "pay" the volunteers. At all races I help at, they give a race voucher of some type. How many use or collect is a different question, but everyone is getting "paid". Simple solution. The least the RD can do!

.

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Dave Campbell | Facebook | @DaveECampbell | h2ofun@h2ofun.net

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Lions don't lose sleep worrying about the sheep

As long as you're not affiliated with the race organizer in any way, I don't think the government would consider you a potential employee. However, if you were on the race organizer's official volunteer list and were specifically assigned to a particular area and/or set of tasks, the question of whether or not you should be paid is a valid one. The FLSA is exceptionally broad in its definition of employer and employee, and technically, there could be an argument that the work performed by volunteers is the type of work that is integral to the race organizer's business, calling into question whether the volunteer is actually covered by the definition of "employee" under the Act. I might also note that a person cannot waive his/her rights under the FLSA -- if you're legally considered an employee, you have to be paid for your time in accordance with the statute. Read some of the recent cases involving unpaid interns for more information.


See my comment above. You cannot waive your right to be paid minimum wage and/or overtime under the FLSA.


This is a good example of why just getting the advice of a lawyer isn't enough. If you practiced labor/employment law, you'd realize that your comments don't make a lot of sense in this context. In that regard, I am a 19-year defense-side labor/employment lawyer and am presently litigating two wage and hour claims in Colorado, so I'm somewhat up-to-date on the FLSA. :-p

Take a look at the other thread on this issue. There is some good information and a good discussion about some of the issues in that thread from some knowledgeable people.

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''The enemy isn't conservatism. The enemy isn't liberalism. The enemy is bulls**t.''

—Lars-Erik Nelson

I pinged Kelly about this thread.

I'm not sure that is best practice. If you (arguably) concede that the "volunteers" are paid, wouldn't the race voucher have to be at least minimum wage?

They are at least 10 bucks an hour so yep, above minimum wage.

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Dave Campbell | Facebook | @DaveECampbell | h2ofun@h2ofun.net

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Lions don't lose sleep worrying about the sheep

The regulations implementing the FLSA state that in the vast majority of situations, in order to comply with the Act, payment to employees must be in some form of legal tender -- �in cash or negotiable instrument payable at par . . . .� 29 C.F.R. 531.27(a). Note also that �scrip, tokens, credit cards, �dope checks,� coupons, and similar devices are not proper mediums of payment under the [Fair Labor Standards Act].� 29 C.F.R. 531.34.

Given the above, I don't think paying volunteers in race vouchers would satisfy any obligations under the FLSA.





(For the uninitiated, "C.F.R." is the Code of Federal Regulations).

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''The enemy isn't conservatism. The enemy isn't liberalism. The enemy is bulls**t.''

—Lars-Erik Nelson[/strike]

JSA is an employment attorney.

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who's smarter than you're? i'm!

Dan -- I will volunteer.

Disclaimer: The following is not legal advice and may not be relied upon (except at your own peril). I am not a practioner of labor law and this post shall not be deemed to be "employment" of any kind by ST or D.E.

OK, now that we have the fine print out of the way, my take is there isn't much merit in the case.

1. FLSA's definition of employee and employ is very circular, basically useless.

2. For non-profit or public sector, the most common test by courts is the "economic reality" test, but for private sector, courts generally look at the totality of circumstances to determine the existence of employment relationship.

2. These circumstances include:

Expectation of compensation [Organizer wins]
Immediate/primary benefit (who has more to gain) [Maybe volunteer wins]
Integral to business [auxilary or critical to the business, any resulting displacement of employees?] [50-50]
Coersion/Pressure [Organizer wins]
Time of activity (must be time REQUIRED by the alleged employer) [Organizer wins]
Similarity of activity to regular employee duties [Organizer PROBABLY wins]
Length of relationship [Organizer wins]
Part time/ Full time [Organizer wins]

So final score 6.5 : 1.5.

I am skipping all the legal citations. This is a friggin' volunteer job for chrissake. LOL

Again, I know nothing about employment law, but bottom line, you call yourself a volunteer and then you sue for money? come on! Don't be a F'ing a-hole.


--- Threefire

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I'm just a small time RD of an Upstate NY race series. We host five events in and around the Syracuse area. Our business, ATC Endurance, is a for profit model so I'll be watching this case closely. I'll also say, if this gains ground and the courts rule that all volunteers should be paid, this would be the end of our business, and probably many others. Can you imagine what WTC would charge for an IM?

That said, we don't pay our volunteers, but we do offer a "race bucks" program where athletes get $10 per hour toward their next ATC Endurance race. We also pay the groups that come and help us out. Work a water stop and bring 10 people, get "x" amount of dollars toward your cause. It is a great way to get people to help out and support local groups along the way. The best part is, they enjoy the work and it's a great way to earn some money for their cause. It is certainly more effective for them to do this than to sell items door to door or any other fund raising method.

In short, people better be careful what they wish for. If this passes, race fees will either rise exponentially, or race companies like mine just won't do it anymore.

Mike Brych, President & RD
ATC Endurance

Interesting assessment. I would handicap the "totality of the circumstances" test a little differently:

Expectation of compensation [Organizer wins]
Immediate/primary benefit (who has more to gain) [Volunteer wins]
Integral to business [auxilary or critical to the business, any resulting displacement of employees?] [Volunteer wins]
Coersion/Pressure [Organizer wins]
Time of activity (must be time REQUIRED by the alleged employer) [Organizer wins]
Similarity of activity to regular employee duties [50-50]
Length of relationship [Organizer wins]
Part time/ Full time [Organizer wins]

At 5.5/2.5 I still don't think she prevails on the merits, but I don't think she is summarily dismissed either. I doubt this eliminates race volunteerism, but I am guessing she gets far enough (or the next person after her does) to significantly change the way race volunteering is portrayed, handled, and what jobs are done by volunteers vs. employees. I don't necessarily think that is a bad thing.

Very interested to watch this case (and likely series of cases) develop.

Jason

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__________________________________________________
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Race Volunteer's Lawsuit Against Competitor Group Will Go Forward

At issue is whether volunteers at for-profit races need to be paid.

By Jon Marcus Monday, June 8, 2015, 11:14 am

In a case that could have vast ramifications for the growing number of running races organized by for-profit companies, a judge has agreed to let a lawsuit go forward brought by a volunteer against the parent of the Rock �n� Roll series, demanding that she and others who work for free at the events be paid.

The lawsuit, filed in federal court in St. Louis against Competitor Group Inc., alleges that the company uses its partnerships with charities that provide volunteers as �a veneer for recruiting free labor� to operate water stops, escort runners, direct traffic, and do other jobs, in violation of the Fair Labor Standards Act, and contends that these thousands of workers must be paid at least minimum wage�$7.50 an hour in Missouri.

http://www.runnersworld.com/...amp;adbpr=9815486986

This is exactly what we are going to do in our events, as recommended by a sports attorney. At least it's a start .

My personal opinion - setting aside that I'm a RD - is that this suit is basically crap. I mean after all, she volunteered to do something she thought was fun and would contribute to the race experience for the runners. Then turns around because there was something she didn't like and started digging for a reason to sue and generally inject a lot of nonsense into all events. The losers - everyone - the charities who benefit from independent races, the athletes with few choices and the small, independent race producers. Not to mention the impact on big production companies...try staffing 1000 volunteers that you have to payroll. Stupid. But then again that's my personal opinion.

As I understand it - offering a specific amount for a specific number of hours is really a practice that is on thin ice and should be eliminated. For example - we used to have a "race bucks" program that offered volunteers a $10 discount for every hour they volunteered (operative word - "used to have" because it's gone. That evidently is the same as setting an expectation and placing a dollar value on the work for a specified amount of time. However, offering every volunteer a 50% discount regardless of how many hours, or what they did is a better solution.

Having volunteers do the same thing as paid staff is also not a good practice. Paid staff supervises the volunteers and the job descriptions are not the same. Having written job descriptions that clearly delineate what staff does and what volunteers do is critical.

As you know, most of the races in our area give race voucher entry for helping. Whether it is an "effective" 10 bucks an hour, or 50% off your next race, all the ones I help at give something that can be used
for the next race entry. Now the only 2 I can think of that do not are HITS and IMLT. Because of this, my wife takes some time off from helping since we help at about 30 races a season.

Giving "vouchers" for a future race discount really does not cost the RD much, if anything. Most race costs are fixed and not driven by the number of folks.

So what do you give your volunteers?

.

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Dave Campbell | Facebook | @DaveECampbell | h2ofun@h2ofun.net

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Lions don't lose sleep worrying about the sheep

Right, but then after the fixed costs have been covered, isn't each additional entry then nearly pure profit? (speaking of the presumably decreased number of full-price entries purchased at future events).

Yep. What I see at the races we help at that give discounts to a future race is does not really matter if the person does a race or not. About the only thing I can think of is they might get a tee shirt,
but these would have probably just been extra anyways.

So the future race entry discounts seems like a win win for both, and would stop any lawsuit?

.

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Dave Campbell | Facebook | @DaveECampbell | h2ofun@h2ofun.net

Boom Nutrition code 19F4Y3 $5 off 24 pack box | Bionic Runner | PowerCranks | Velotron | Spruzzamist

Lions don't lose sleep worrying about the sheep

I have a different opinion, but I'll keep that to myself as there are plenty floating around already on this topic...

The current solution I see for small RDs seems to be either A) work with non-profits directly for volunteer needs or B) convert/start over as a non-profit. Being non-profit does not mean that you cannot make a good living. Many may recall hearing what some of the largest NPOs directors make a year. Tax/Corporate attorneys (not me) can opine further on the nitty gritty with 501c3 status etc., but that seems to be where most small RDs could look to resolve any fears.

Additionally, RDs could give back directly to the causes they are passionate about, while also being in compliance with FLSA and avoiding issues on attempting to release/waive minimum wage. RDs would then need to make sure they are in compliance with their state labor laws, if they are different than FLSA. That seems like a win/win. I also don't personally view small RDs as a target for such copycat litigation that may occur, though other attorneys may.

I know most on here view this lawsuit as bs, but these laws are designed to protect all, not just people signing up for marathons/triathlons. Looking outside of these events, one should be able to understand why such laws are necessary. I do understand how this may impact small RDs, which is partly why the above options should be considered as an option to move current practices closer in line with the law. I just don't feel bad that Competitor and other big marketing companies putting on events are getting called out for utilizing free labor while making millions in profit each year.

we used to do $10 for every hour of volunteering, but now it's 50% off any event. We throw in shirts, lunch, snacks on the course, etc. Plus we have groups we make donations to if the are the beneficiaries of the event. This can be a pre-arranged amount or based on a registered participant formula.

Fixed costs? Dave, obviously you don't put on races! Yes, there are things that are "fixed" in that you have to have them for every race, with the variable costs being shirts, medals, food, charitable donations, etc based on the number of registrations. But the so-called fixed costs have basically been going up every year for most races across the country on an average of 12-18% for things like insurance, police, permits, etc. and are certainly not stable, nor always predictable. I would say it's more important to have a list of "must have" items without which you can't have your race, a slush fund for "surprise" fees and charges that cities and counties always seem to come up with each year, and a fund to cover the really unexepected things, and replacement of inventory for stuff that just wears out. My particular favorite this year -- in addition to paying for the police officers we must essentially rent their vehicles as well by the hour -- that's not included in the union contract for the hourly police rate.