Q&A: Do Overtime Hours at Camp Qualify as an Exemption?

Overtime hours for part-time employees is just one of several key compensation considerations.

Q: We have a camp trip this summer and are looking to send one of our part-time hourly employees. This will require them to essentially be working the entire trip. Are we required to pay overtime for all hours worked or are there exemptions for “camp” time? I have seen mention of exemptions of camp counselors, but it seems since they are already a regular employee that we may be crossing a line.

The Fair Labor Standards Act (FLSA) and US Department of Labor (DOL) regulations do recognize an exemption from overtime pay for employees of an organized camp operated as a “distinct physical place of business.”

See 29 U.S.C. 213(a)(3); 29 C.F.R. § 779.23. Under the facts described, it is unlikely the part-time hourly employee will qualify for this statutory overtime exemption, either because the employee is employed by the church, and not by a camp with a “distinct physical place of business,” or because the camp trip is not an organized camp (or perhaps for both reasons).

But the inquiry should not stop here.

The DOL has recognized a narrow exception from the definition of employment, an exception in which an employee of a nonprofit organization “volunteers” in an activity sponsored by the organization. In determining whether an individual’s participation in an activity is as a “volunteer” and not an “employee,” the DOL considers several factors, including whether the services are:

  • Offered freely without pressure or coercion;
  • Of the kind typically associated with volunteer work; and
  • Different in nature from the employee-volunteer’s normal work activities.

Therefore, if the camp trip will be attended by youth of the church, and the part-time hourly worker’s normal duties include working with the church’s youth, then this exception would not apply.

However, if the employee’s normal duties are different in nature, such as providing finance and accounting services, then this exception for volunteers should apply so long as the employee is not required to participate (a requirement to participate would alter the nature of the employee’s participation from “voluntary” to “within the scope of employment”).

To ensure that volunteer services are distinguishable from work performed within the scope of the employment relationship, the church’s governing body should establish policies governing the conditions under which church employees may volunteer and requiring job descriptions with sufficient detail to clearly distinguish employment services from volunteer services.

If the employee is not exempt from overtime pay and doesn’t qualify as a volunteer for the camp trip, then given that the employee will “essentially be working the entire trip,” the church must determine how many hours are considered “work hours” for the purpose of determining compensation, including overtime pay.

In general, an employee must be paid for hours worked.

When an employee is essentially on duty around-the-clock, DOL regulations permit the employer and the employee to mutually agree to exclude from hours worked (i) sleep time of not more than eight hours, (ii) mealtimes where the employee is completely relieved of duty, and (iii) rest periods (e.g., breaks) of not less than 30 minutes (see 29 C.F.R. §§ 785.18, 785.19(a), 785.22). To qualify as excluded sleep time, the employer must provide the employee with “adequate sleeping facilities” where the “employee can usually enjoy an uninterrupted night’s sleep” (29 C.F.R. § 785.22(a)).

If the employee’s sleep time is interrupted by employment-related duties, then the hours related to the interruption must be included in hours worked (29 C.F.R. § 785.22(b)).

Further, if the employee cannot get at least five hours of sleep during the eight-hour sleep period due to employment-related interruptions, no portion of the sleep time is excluded from hours worked (29 C.F.R. § 785.22(b)). It is important that an employee’s sleep time, meal times, and rest periods are documented to ensure there are records supporting the hours worked.

Depending on the activities (both planned and unplanned) on the camp trip, it may be difficult, if not impossible, to allow the employee mealtimes where the employee is completely relieved of duty.

In addition, the nature of many camp trips, particularly those involving youth, often result in short nights with fewer than five hours of sleep. Accordingly, it is conceivable that an employee would be eligible to be compensated for every hour of the day.

The FLSA does not require that all hours worked be compensated at the same rate, however. Therefore, with advance notice to the affected employee, it is possible to pay the employee a lower rate for hours worked during the camp trip.

It is advisable to establish that the lower rate is consistent with the rate paid to similarly situated persons performing the same duties that the part-time employee in the question will be required to perform during the camp trip. For example, if the employee’s normal hourly rate is $15 per hour, but the industry standard for employees performing these duties is $9 per hour, then paying a lower rate for these services is permissible and defensible. Note that the lower rate cannot be lower than the applicable minimum wage.

Additional considerations:

  1. An employee cannot waive their right to compensation for hours worked or overtime pay.
  2. While the camp trip may be to a camp facility owned and operated by the church, it is likely that the overtime exception for camp employees will not apply for a part-time church employee because of rules that do not permit interchanging employees between camp and non-camp activities.
  3. From the description of the employee in the question as a “part-time hourly employee,” we can assume that the employee is a nonexempt employee for DOL wage and hour purposes and therefore not exempt under another regulation.
  4. There are state wage and hour laws which should be examined to ensure that they do not provide an employee with additional benefits not provided by the FLSA.
  5. If the part-time employee can be properly classified as a “minister,” additional research would need to be performed to determine if the so-called ministerial exception applies.
Ted R. Batson Jr. is a CPA and tax attorney, and serves as a partner and Professional Practice Leader – Tax for CapinCrouse LLP, a national CPA and consulting firm. He speaks and teaches frequently for national conferences and organizations on exempt organization and charitable giving matters.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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