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Can My Employer Call Me A Volunteer And Refuse To Pay Me? I Need A Wage Theft Lawyer!

On Behalf of | Oct 22, 2015 | Wage: Minimum Wage, Wage: Overtime |

Best Ohio Minimum Wage Attorney Answer: Are all amusement park workers entitled to minimum wage? What should I do I my job hasn’t paid me? Can my boss refuse to pay me altogether for working at a seasonal fair?

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As our wage and hour attorneys have blogged before, there are a number of exemptions to the Fair Labor Standards Act (“FLSA“), which otherwise requires employers to pay all non-exempt employees at least the minimum wage and overtime for all hours worked over 40 in a given week. (See Are All Professionals Exempt From Overtime?; What’s The Minimum Salary To Be Exempt For Overtime?; Should I Be Paid Overtime Even If I’m A Manger? Best Lawyer Help!; and Top Wage and Hour Lawyer Response: Is Everyone Entitled To Earn Minimum Wage?).

One of the exemptions to the FLSA’s requirements is the seasonal amusement and recreational establishment exemption. Section 213(a)(3) of the FLSA provides that the overtime rule shall not apply to:

any employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center, if 

(A) it does not operate for more than seven months in any calendar year, or

(B) during the preceding calendar year, its average receipts for any six months of such year were not more than 331/3 per centum of its average receipts for the other six months of such year

So, what is an establishment under the FLSA? Under applicable Department of Labor (“DOL“) guidelines, an establishment is defined as “distinct physical place of business,” as opposed to “an entire business or enterprise which may include several separate places of business.” However, “two or more physically separated portions of a business though located on the same premises … may constitute more than one establishment for purposes of the exemptions” if (1) they are “physically separated from the other activities [performed at the same location],” (2) are “functionally operated as a separate unit having separate records, and separate bookkeeping,” and (3) undertake “no interchange of employees between the units.” See 29 C.F.R. § 779.305. Thus, seasonal workers at Cedar Point – those who run the rides and sell food, etc. during the parks summer operations – would generally be exempt under the FLSA, whereas year round employees who maintain the rides and perform other work for the park would not be, even if they work at the same location.

The importance of the establishment requirement for the seasonal and recreational employee exemption was recently highlighted in Chen v. Major League Baseball Properties, Inc. In Chen, the plaintiff had spent a week as a “volunteer” for the MLB, working at a “FanFest” the organization held in New York City. During his time at FanFest, Chen stamped the wrists of FanFest attendees, handed out bags of baseball paraphernalia, placed paper flyers in bags, directed attendees to the exits, alphabetized liability waivers, and worked at a fielding station instructing attendees to deposit the balls they fielded into buckets. For all of this, MLB gave Chen a t-shirt, water bottle, a cap, a backpack, a baseball, free admission to FanFest as a guest, and a chance to win a pair of tickets to the All-Star game.

Chen returned MLB’s generosity with a collective action lawsuit, alleging that the MLB had violated the FLSA by failing to pay him and other “volunteers” the minimum wage.

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The MLB filed a motion to dismiss Chen’s wage theft lawsuit, arguing that as a matter of law, Chen and other FanFest volunteers were exempt from the FLSA under the seasonal amusement and recreational establishment exemption. Chen responded to this by arguing that “FanFest” was not a separate establishment from the MLB, which all parties agreed was not exempt under the statute. The trial court found that because FanFest was a distinct, physical place of business from the MLB, it was the relevant establishment for the purposes of applying the seasonal and recreational exemption, rather than the MLB. As a result, the trial court granted MLB’s motion to dismiss.

On appeal, Chen argued that at the very least, the determination of whether FanFest was an establishment separate and apart from MLB was a factually intensive determination that was not subject to resolution on a motion to dismiss. Chen further argued that the trial court erred by making its finding simply along the lines that FanFest was physically distinct from MLB, and that the court should have applied the multi-prong test that applied to Cedar Point above.

For support, Chen looked to the literal language of the relevant statute, 29b C.F.R.§779 which is entitled “The Fair Labor Standards Act as Applied to Retailers of Goods or Services.” However, the Second Circuit Court of Appeal disagreed, pointing out that

Section 779.23 affirmatively states that it provides “the meaning of the term as used in section[] . . . 13(a)” as a whole and is not restricted to any particular exemption. As the DOL has noted, “Section 13(a)(3) of the amended act does not require that the amusement or recreational establishment be a retail or service establishment as was required under section 13(a)(2)(ii) of the prior act.”

As a result, the Second Circuit concluded that it was enough that FanFest was physically distinct from MLB for the purposes of applying the exemption. Because it was undisputed that FanFest operated for less than seven months of the year, the Court of Appeals upheld the dismissal of Chen’s case.

Let’s look to Ohio for a moment. Under Ohio law, the outcome would arguably have been different. As regular readers of our wage and hour blogs may recall, at least one court of appeals in Ohio has found that Ohio statutory law applying the same exemptions that are found under the FLSA are unconstitutional in light of Section 34a’s provision that limits exemptions to Ohio’s minimum wage to “[o]nly the exemptions set forth in this section.” (See Can Amusement Park Workers Be Paid Less Than Minimum Wage? I Need The Best Wage Lawyer!). As a result, regardless of who the establishment was found to be, MLB would not have been able to avail itself of the seasonal and recreational employee exemption to avoid liability under Ohio law.

If you believe that your employer is not paying you all of your wages, paying you less than minimum wage, unlawfully deducting money from your paycheck, not paying you time and a half for overtime, or is otherwise cheating you out of wages requires contact the minimum wage violation lawyers and overtime claim attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. You may have a claim under the Federal Fair Labor Standards Act or Ohio Fair Labor Standards Act. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your wage and hour pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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