Volunteers Enter the Schoolhouse Gate

• Publication year: 2021

79 Nebraska L. Rev. 998. Volunteers Enter the Schoolhouse Gate

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Gregory H. Perry*

Volunteers Enter the Schoolhouse Gate

"In our society, a great many people are asked to render a community service, and they do so without expecting or receiving compensation for their services. . . . [I]t seems obvious that the youth of our state would be seriously andadversely affected if . . . the many organizations attempting to help young people could be sued by their respective volunteers for the value of the services rendered by the volunteers simply because someone in the organization asked the volunteers to serve and did not specify the services would be rendered gratuitously."1

I. INTRODUCTION

As recognized by the Nebraska Court of Appeals in the above quote, volunteers provide tremendous services to our youth. In the public schools, use of volunteers provides an occasion to save money in tight budgetary times, to get tasks done in times of labor shortages, and to get skilled services from persons who have special expertise. Using volunteers also provides a chance to develop parental involvement and to model the importance of community service to students. For the volunteer, providing uncompensated service offers a chance to satisfy the emotional need to serve others, as well as the opportunity to learn new skills and develop personal contacts for career advancement.

Use of volunteers presents public schools with many of the same legal issues that arise with public school employees. While school districts spend considerable time assessing legal issues involving employment matters, they frequently do not devote significant consideration to the legal issues involved in using volunteers. In order to establish a framework to examine these legal issues, we address the following three questions:

1. What "jobs" may volunteers perform?

2. What "pay" may volunteers receive?

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II. WHAT TASKS CAN VOLUNTEERS BE PERMITTED TO PERFORM?

A. In the Classroom

In order for a volunteer to serve as an administrator or teacher, the volunteer must have a Nebraska administrative or teaching certifi-cate.2 Use of a volunteer to perform teaching duties, even if the volunteer has a teaching certificate, may be contrary to the collective bargaining agreement between the School District and the teachers' association.3 In the absence of a special provision in the collective bargaining agreement or a separate agreement with the applicable bargaining unit, volunteers should not be assigned to perform duties of union members.

More commonly, volunteers in the public school classrooms serve in roles where they provide assistance to teachers and other professional employees. Volunteers may serve as "teacher aides" without a teaching certificate, so long as they do "not assume any teaching re-sponsibilities."4 A "teacher's aide" must be "specifically prepared for such duties, including the handling of emergency situations which might arise in the course of his or her work."5

In assigning volunteers to work with students, public schools must be aware of the laws that restrict access to student records. Both federal and state law regulate such access. Under federal law, "school officials" are authorized to have access to student education records when they have legitimate educational interests in the records.6 A volunteer may conceivably be determined to be a "school official."7

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However, under state law, access to student records is limited to "parents, guardians, teachers, counselors, or school administrators."8 With this restriction, volunteers are in most instances not authorized to have access to student files, at least absent written consent of the parent or guardian.

B. On the Athletic Field

Volunteers are frequently used in public school extracurricular programs. In Nebraska, the restrictions on use of volunteers for coaching duties are based on the rules of the Nebraska School Athletic Association (NSAA).9 The NSAA is a voluntary association of schools organized to promote and regulate competition between schools in extracurricular activities. The NSAA's current regulations require that head coaches be certificated as a teacher or administrator, and be employed by the school district for which they coach.10

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Frequently, alumni and other adults desire to assist in extracurricular activities by participating in scrimmages or other similar activities with students. These types of activities have led to student injuries and litigation.11 The NSAA rules thus restrict volunteers and others from "participat[ing] in any practice session, drill, scrimmage, or game in which a school team is involved."12

III. WHAT COMPENSATION OR BENEFITS CAN VOLUNTEERS BE GIVEN?

A principal motivation in using volunteers is to get tasks performed for free. The Kearney Little League Baseball Association recently defended litigation, which went to the Nebraska Court of Appeals twice, in order to solidify the principle that volunteers are not

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required to be compensated.13 Nevertheless, to encourage volunteers, inducements are often needed and the question frequently arises as to what pay, benefits, or reimbursements may be made to volunteers.

The question of "pay" for volunteers is affected by state and federal law. With regard to state law, the question is whether authority exists to provide pay or benefits to the volunteer.14 With regard to federal law, the question is reversed, and it becomes an issue of whether the volunteer must be paid (e.g., in the form of a "minimum" or "prevailing wage").

A. Statutory Authority to Pay Salary, Benefits, or Expenses of Volunteers

School board members are the forgotten "volunteers." In Nebraska, "members of a school board . . . shall not receive a per diem."15 This means that school board members are not to be paid any salary, and they are only to be reimbursed for "their actual and necessary expenses incurred while carrying out their duties."16

The authority to provide reimbursement for expenses and miscellaneous benefits to school board members and other volunteers is primarily controlled by the Local Government Miscellaneous Expenditure Act.17 Because the Act regulates even seemingly trivial expenditures, such as serving coffee at Board meetings, it is commonly referred to as the "Coffee Act."

The Coffee Act defines a "volunteer" as a person who is not elected, appointed, or employed by the school and "who, at the request or with the permission of [the school], engages in activities related to the purposes or functions of [the school] for its general benefit."18 Volunteers may be paid or reimbursed for their "actual and necessary expenses" incurred in attending or participating in events, provided the school board gave prior approval for the event and for the payment or reim

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bursement.19 Reimbursable expenses include registration costs, mileage, lodging, and meals (but not meals at Board meetings, unless the meal is at a joint public meeting with another governing body).20 Beverages (of a non-alcoholic variety) and meals may be provided to volunteers during or immediately following their participation in the volunteer activity.21 Recognition dinners may also be provided to volunteers (at a maximum of $25.00 per person),22 and volunteers may be awarded "plaques, certificates of achievement, or items of value" in accordance with a preexisting policy of the School Board.23 When the volunteers' spouses attend the recognition dinner, the spouses will go hungry (or pay for their own plate), since the school is not authorized to pay for any expenses incurred by or on behalf of a volunteer's spouse.24

Other Nebraska statutes specifically authorize additional benefits that can be provided to school volunteers. School volunteers may be given a free activities pass which may be used by both the volunteer and the volunteer's spouse.25 School board members may be provided with insurance coverage ("hospitalization, medical, surgical, accident, sickness, or term life"),26 and liability insurance can also be provided to school board members and other volunteers who may be classified as agents of a school district.27

B. Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) requires that minimum wages and overtime be paid to individuals who perform services.28 Public school "volunteers" are exempt from the FLSA.29 To be a "volunteer" for purposes of the FLSA exemption, the following two-part test must be met:

(i) the individual receives no compensation or is paid expenses, reasonablebenefits, or a nominal fee to perform the services for which the individual volunteered; and

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(ii) such services are not the same type of services which the individual isemployed to perform for such public agency.30

The first part of the volunteer test...