A federal court in New York recently took up this interesting question. Read the Opinion & Order here. It determined that no, defendants performing community service in order to earn the dismissal of criminal charges against them did not qualify as “employees” and are therefore not covered by the Fair Labor Standards Act.

This answer is not as simple as you might think. Many people who “work for free” should in fact be getting paid at least minimum wage. Interns are a good example, and the requirements are detailed in the DOL’s Fact Sheet No. 71. The FLSA’s broad definition of an employee as a person who is “suffered or permitted to work” covers most persons acting for the benefit of an organization or individual, at least in the for-profit world.

However, there are of course many circumstances in which people can legally volunteer and be exempt from wage laws. The FLSA’s minimum wage and overtime provisions to not apply to persons who “volunteer or donate their services, usually on a part-time basis, for public service, religious or humanitarian objectives
, not as employees and without contemplation of pay.” www.dol.gov

Criminal defendants who work to avoid criminal penalties therefore toe this line. They aren’t really volunteering their services out of charitable goodwill; but they’re also not doing work with the intention of getting paid as common sense would dictate. In this instance the court decided that these persons were not entitled to minimum wage for their work as well as dismissal of the charges against them.