“The buffet had 35 full-time employees–all of whom, incidentally, have lost their jobs as a result of this lawsuit.”

A church outside Akron, Ohio, ran a cafeteria open to the public in which much of the labor was provided free by volunteer members of the congregation. The U.S. Department of Labor sued it on the grounds that it violates the minimum wage provisions of the Fair Labor Standards Act (FLSA) for an enterprise, church or otherwise, to use volunteer unpaid labor in a commercial setting. A trial court agreed, but now the Sixth Circuit has reversed and remanded, pointing out that “to be considered an employee within the meaning of the FLSA, a worker must first expect to receive compensation.”

Judge Raymond Kethledge, writing in concurrence, takes issue with the Department of Labor’s argument that the cafeteria volunteers count as employees because “their pastor spiritually ‘coerced’ them to work there. That argument’s premise — namely, that the Labor Act authorizes the Department to regulate the spiritual dialogue between pastor and congregation — assumes a power whose use would violate the Free Exercise Clause of the First Amendment.” Kethledge also points out that as “the record makes clear, the Buffet’s purpose was to allow the church’s members to proselytize among local residents who dined there,” and that along with its congregant volunteers the establishment “had 35 full-time paid employees — all of whom, incidentally, have lost their jobs as a result of this lawsuit.” [Acosta v. Cathedral Buffet et al. via Ted Frank on Twitter]

More: cross-posted, slightly expanded, at Cato.


  • The DoL probably suspected that the “volunteers” were used to evade the rules. Maybe so–but the juice isn’t worth the squeeze, as government sometimes has to admit defeat because it is without power to address the issue.

    Scientology may be an example of this. People have varying opinions about Scientology, and that’s ok. Thankfully, the government has some governors on what it can do about Scientology (First Amendment). I’d prefer to live in a society where we accept the fact that government cannot get all the bad guys (assuming we all know what constitutes a bad guy) because limitations on government power (which is exercised by flawed human beings) promote freedom generally.

  • The US Department of Labor: Creating jobs Americans won’t do — because we won’t let them.

    Obviously, all of the Habitat for the Humanities groups should be fined for all the volunteer labor their members provide.

  • That’s the problem, many “bad guys” are just perspective. There are some true bad guys that everyone would agree are bad, but there are lots of others which are subject to debate. Marijuana laws anyone? Prohibition? And others that make criminals out of behavior that wasn’t criminal until early in the 1900’s.

  • Just last week my little burg issued a proclamation highlighting the contributions to the community and the City government that volunteers make. The Mayor stood up and made a speech and then the head of the Human Resources Department said that volunteer workers “save the City $150,000 – $200,000 a year, if not more.”

    The genesis for the proclamation was that last week was “National Volunteer Week,” where people are supposed to recognize and appreciate volunteers in the community.

    National Volunteer Week during the third week in April is an opportunity to thank all the thousands of volunteers across the country who keep many organizations running, communities safe and provide the services that otherwise would not exist without volunteers.

    It’s also a time to consider volunteering or providing support to those organizations vital to your community.

    There is something ironical or affirming that the decision for this case was released during that week.

    • A few years ago w had a bad snowfall. The Street Department was overwhelmed so my neighbor took it upon himself to clear our street. He owns an excavating company so equipment was no problem. A couple skid loaders and dump trucks made short work of the snow. The next morning the Code Enforcement Officer knocked on his door and asked if he was the person who cleared the street? When he said that he had the officer told him to never do it again or else he would be cited. The City’s official reason for this was ensure that the streets were cleared properly as a matter of safety. The real reason was that the City Employee’s Union complained because the Street Department employees lost 20 man hours at double time and a half.

      • Clearing a street of snow is now a finable offense? Wow. What ought to happen in situations like this–there are tons of “natural law” type reasons why people have the right to do things like this–avoiding being stuck in their homes, no real notice that the conduct is unlawful etc. So, let’s turn the arcaneness of the law on the code enforcement officer and his boss (and the union) and bring criminal charges and frog-march the lot of them.

        • Never going to happen. We had a Conservative Mayor who tried to hold the unions to the law. When he came up for re-election there was all kinds of money funneled to the Liberal who opposed him. When he lost the the election the City’s bond rating dropped.

      • We don’t get much snow in Florida and certainly not enough snow to shovel (at least where I am.)

        We do, however, have an abundance of palm fronds that fall out of trees regularly.

        They fall onto grass, sidewalks. driveways, and streets. Falling onto streets is a problem because they can (and do) break up and head into the sewer systems which clogs lift stations and all that. The sewers are a big issue here as the County is looking to redo the infrastructure of the sewer system. Right now, the message from the county government is “don’t strain the sewer system.” (As well as the untreated sewer runoff water goes into the river / lagoon and adds to the algae bloom problem that is killing fish and manatee.)

        Residents who walk, jog, take a dog out, etc, have been moving the downed fronds out of the roads and onto county right of way where they will stay until a county contractor picks them up.

        Residents were recently told by the administrator of the contract that moving the fronds out of the street put the county in violation of the contract and would be a civil violation if the county or the contractor saw it being done. The police would be called and a citation issued.

        In other words, I see your snow removal and raise you palm fronds.

  • “…Department of Labor’s argument that the cafeteria volunteers count as employees because “their pastor spiritually ‘coerced’ them to work there.”

    Well that pretty much sums up christianity, as well as likely many other religions. There is a quid pro quo quite firmly stated in every service, meeting, and hymn: do this now, and receive salvation later.
    But that being core to the practice of religion, should make it off limits to regulate.

    • You have never studied religion, have you?