NOTE: The purpose of this presentation, and the accompanying materials, is to inform you of

interesting and important legal developments. While current as of the date of presentation, the

information given today may be superseded by court decisions and legislative amendments. We

cannot render legal advice without an awareness and analysis of the facts of a particular situation. If

you have questions about the application of concepts discussed in the presentation or addressed in this

outline, you should consult your legal counsel. ©2019 Ratwik, Roszak & Maloney, P.A.

Ratwik, Roszak & Maloney, P.A.

730 Second Avenue South, Suite 300

Minneapolis, Minnesota 55402

_________________________

(612) 339-0060

Fax (612) 339-0038

www.ratwiklaw.com

The ABCs of Athletics & Activities:

Advertising, Booster Clubs, and Coaches

Jennifer K. Earley

jke@ratwiklaw.com

Nathan B. Shepherd

nbs@ratwiklaw.com

2019 MASBO Winter Conference

February 8, 2019

I. INTRODUCTION

A school’s activities and athletic programs can bring communities together and be a

source of school spirit. While budgeting for these programs can cause headaches for

administrators, accepting help from booster clubs or volunteers and raising revenue

through advertising creates its own set of legal hurdles. This presentation will discuss

two common ways schools can supplement their athletic and activities funding—

advertising and booster clubs—while complying with the law. This presentation also

will ensure that administrators are up to speed on all the unique wage and hour rules and

other potential areas of liability that apply to coaches and volunteers that help run

schools’ programs.

2

II. ADVERTISING

A. Implications of Bid Law

1. The selling of advertising space does not implicate Minnesota’s

Competitive Bid Law. See Hubbard Commc’n v. Metro. Sports Facilities

Comm’n, 381 N.W.2d 842 (Minn. 1986).

2. It still may be prudent to go through some sort of bidding procedures,

particularly when significant revenue is at stake.

a. Maximize revenue.

b. Avoid appearance of favoritism and potential litigation.

B. Advertisement Locations

1. Facilities, such as scoreboards, fences, and gymnasiums.

2. Publications, such as school newspapers, yearbooks, and programs.

3. In-school locations, such as lockers, bulletin boards, and lunchrooms.

C. First Amendment Implications

Advertisements, which are considered protected speech under the First

Amendment, may be regulated in different ways depending on what type of

forum the advertisement occurs in, whether the advertisement is considered

commercial speech, and whether the advertisement can be considered

government speech.

1. The First Amendment of the U.S. Constitution protects the right to free

speech, providing that “Congress shall make no law . . . abridging the

freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances.”

The Minnesota Constitution likewise guarantees that “all persons may

freely speak, write, and publish their sentiments on all subjects . . . .”

Minn. Const. Art. I, Sec. 3.

2. The First Amendment’s protection covers all forms of speech and

expressive conduct, whether verbal or nonverbal, printed or digital.

3

3. Forum Analysis

a. There are three different types of forums: public forums,

designated public forums, and nonpublic forums. See Bowman v.

White, 444 F.3d 967, 975-77 (8th Cir. 2006). The more public a

forum is, the more difficult it is to regulate advertisements within

that forum. How a forum is classified, in most cases, depends on a

school’s intent.

b. A time, place, and manner restriction is enforceable if it is

“necessary to serve a significant government interest and is

narrowly drawn to achieve that interest.” Bowman, 444 F.3d at

976.

c. Public Forums – School facilities are typically only considered to

be public forums if the school has a policy or practice of keeping

facilities open for the indiscriminate use by the public, or some

segment of the public. Planned Parenthood of S. Nevada, Inc., 941

F.2d 817, 829 (9th Cir. 1991).

Schools typically would not have any public forums, save for,

perhaps, sidewalks surrounding a school campus.

d. Designated Public Forums – Most advertising space in schools is

likely to be considered a designated or limited public forum. These

forums exist where a school opens space to allow limited

discussion or advertising. Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 45 (1983).

In schools, these types of forums may be open to all members of

the public, or only segments of the public. Id. Schools also can

regulate the type of content, so long as the regulation is reasonable

in light of the purpose served by the forum and, in almost all cases,

viewpoint neutral. Child Evangelism Fellowship v. Montgomery

Cty. Pub. Schs., 457 F.3d 376, 381 (4th Cir. 2006).

Once a limited public forum has been established, the school

district must “respect the lawful boundaries it has itself set” and

“may not exclude speech where its distinction is not reasonable in

light of the purpose served by the forum.” Rosenberger v. Rector

and Visitors of Univ. Va., 515 U.S. 819, 829, 115 S. Ct. 2510

(1995).

4

e. Nonpublic Forums – Classrooms are the quintessential nonpublic

forum in schools.

Access to nonpublic forums “can be restricted as long as the

restrictions are reasonable and are not an effort to suppress

expression merely because public officials oppose the speaker’s

view.” Cornelius v. NAACP Legal Def. & Educ. Fund., Inc., 473

U.S. 788, 800 (1985).

Schools have “broad discretion” in limiting speech when engaged

in administering curriculum. Settle v. Dickson Cty. Sch. Bd., 53

F.3d 152, 155 (6th Cir. 1995).

4. Commercial Speech

a. Commercial speech is “expression related solely to the economic

interests of the speaker and its audience.” Cent. Hudson Gas &

Elec. Corp., 447 U.S. 557, 561 (1980). This type of speech,

regardless of the forum it is made in, is entitled to even less

protection. Id. at 563.

b. Commercial speech is not entitled to any protection if false or

misleading. If it is not false or misleading, it can be regulated if:

(1) the regulation promotes a substantial government interest; (2)

the regulation directly and materially advances that interest; and (3)

the regulation is not substantially broader than necessary to achieve

that interest. Passions Video, Inc. v. Nixon, 458 F.3d 837, 842 (8th

Cir. 2006).

c. Speech is not “necessarily commercial whenever it relates to that

person’s financial motivation for speaking.” Riley v. Nat'l Fed'n of

the Blind of N. Carolina, Inc., 487 U.S. 781, 795, 108 S. Ct. 2667,

2677 (1988). If commercial speech is “inextricably intertwined

with otherwise fully protected speech,” regulations of that speech

are considered fully protected by the First Amendment.

5. Government Speech

a. The “Free Speech Clause restricts government regulation of private

speech” but “it does not regulate government speech.” Roach v.

Stouffer, 560 F.3d 860, 863 (8th Cir. 2009). “When government

speaks, it is not barred by the Free Speech Clause from determining

the content of what it says.” Walker v. Tex. Div., Sons of

5

Confederate Veterans, Inc., 576 U.S. ___, 135 S. Ct. 2239, 2245

(2015). “The government speech doctrine does not apply if a

government entity has created a limited public forum for speech.”

Gerlich v. Leath, 861 F.3d 697, 707 (8th Cir. 2017).

b. “[W]hen the State is the speaker, it may make content-based

choices.” Gerlich, 861 F.3d at 709.

c. The Walker decision pointed to three factors to look for in

determining whether certain speech is government speech.

i. First, whether the government has long used the particular

medium at issue to speak.

ii. Second, whether the medium is “often closely identified in

the public mind with the” government.

iii. Third, whether the government “maintains direct control

over the messages conveyed” through the medium.

d. For example, in the Walker case, the Supreme Court held that the

state government of Texas could prohibit the printing of license

plates with an image of the confederate battle flag because license

plates satisfied these elements, and therefore were government

speech. As a result, the state could control the viewpoint expressed

with that speech. Walker, 135 S. Ct. at 2250.

e. This concept may apply to sponsorship opportunities, in that the

school is thanking the entity providing sponsorship for their

support.

6. Diloreto v. Downey Unified School District Board of Education, 196 F.3d

958 (9th Cir. 1999).

Facts: A would-be advertiser sued a school district superintendent and

two school board members based on the district’s refusal to post a paid

advertisement containing the text of the Ten Commandments on the high

school’s baseball field fence. The district sold advertising space on the

fence to defray athletic program expenses. The district refused to accept

the advertisement containing the Ten Commandments for the following

reasons: (1) the district was concerned that the sign would violate the

provision in the First Amendment prohibiting the establishment of a

religion, and (2) the district was concerned that disruption, controversy,

6

and expensive litigation might arise from community members seeking to

remove the sign or from religious or political statements that others might

wish to post.

Issue: Whether the district’s action in refusing to accept the advertisement

violated the would-be advertiser’s right to free speech?

Decision: The court reasoned that the district did not intend to designate

the baseball field fence as a public forum for expressive activity. The

court explained that the intent of the school in opening the fence to

advertising was to raise funds, not to create a forum for unlimited public

expression. District officials excluded certain subjects from the

advertising forum as sensitive or too controversial for the forum’s high

school context, such as advertisements for alcohol and Planned

Parenthood. The court held that the baseball field fence was a limited

public forum.

The court stated that the special nature and function of public secondary

schools are relevant to evaluating the limits the school may impose on

expressive activity on the fence. The court explained that the district’s

concerns regarding disruption and potential controversy were legitimate

reasons for restricting the content of the ads, given the purpose of the

forum and the surrounding circumstances of the public secondary school.

The court concluded that a public secondary school could restrict

advertising of controversial topics in programs for high school athletic

events, even where the school has created a limited public forum for other

advertisements. The court explained that the district reasonably could

have believed that the controversy and distraction created by political and

religious messages raised the potential for disruption of physical

education classes and school–sponsored events, particularly as students at

these activities would be a captive audience to the ads. The court also

found that the district reasonably could have been concerned that the

school would be associated with any controversial views expressed in the

advertisements on the fence.

The court also emphasized that the district had never allowed religious

advertisements on the baseball field fence. The court concluded that the

district’s decision not to accept the ad containing the Ten Commandments

was a permissible, content-based limitation on the forum, and not

viewpoint discrimination.

7

7. Mech v. School Board of Palm Beach County, 806 F.3d 1070 (11th Cir.

2015)

Facts: Palm Beach County schools adopted a pilot program to recognize

sponsors of school programs. The recognition of these sponsors came in

the form of banners that hung on fences outside its schools. The district

adopted a policy regarding these banners that included several

requirements. First, the policy set uniform rules about the aesthetics of

the banners and limited the content of the banners to specific information

about the business. Second, the policy stated that the district did not

intend to create a forum for speech. Third, the policy identified certain

types of content that would not be allowed, including political, religious,

or controversial subjects that are not in line with the educational mission

of the district. The policy also required the principals of each school to

use their discretion to identify appropriate business partners, given the

setting. In order to have a banner outside a school, businesses were

required to donate a few hundred dollars.

One of the businesses that took the district up on this opportunity was

named “Happy/Fun Math Tutor,” operated by a man named David Mech.

Mr. Mech had an advanced degree in math, had taught college math, was

certified to teach secondary math in Florida, and was, by all accounts, a

“very good tutor.” Mr. Mech, however, has a “unique resume,” in that he

is also a retired porn star, having performed in hundreds of films. At the

time that he was operating his tutoring business, he owned a company

named Dave Pounder Productions that had produced pornography.

After the banner for Mr. Mech’s tutoring business had been up for a

couple of years, parents noticed that the tutoring business shared an

address with this pornography company, and they complained. The

district removed the banners, on the grounds that Mr. Mech’s ownership

of a pornography company and the shared address between the

pornography company and the math tutoring business “creates a situation

that is inconsistent with the educational mission of the Palm Beach School

Board and the community values.”

Issue: Did the district’s action violate Mr. Mech’s right to free speech?

Mr. Mech argued that the advertising in the banners was private speech in

a limited public forum, while the district argued that the banners were

government speech or that the restriction of Mr. Mech’s banners was

reasonable and viewpoint neutral.

8

Decision: The court applied the then-recently issued Walker decision

relating to government speech. The court recited the factors identified in

Walker: (1) whether the history of the speech indicated that the speech

was communication by the government; (2) whether a reasonable observer

would believe that the government agreed with the content of the speech;

and (3) whether the government exercised direct control over the speech.

The court noted that there was no historical precedent to discuss, but did

not find that factor decisive, given that the program was only a few years

old at the time of the challenge. With respect to the second factor, the

court noted that the banners were on school fences, were subject to

aesthetic controls, and bore the name and colors of the schools. The court

also pointed out that the district’s policy explicitly stated that the banners

were the district’s way of saying thank you to the sponsors, rather than

purely being advertisements for the service. Finally, the court discussed

the myriad aspects of the banners that were controlled by the district:

color, content, typeface, design, wording, etc.; and noted that the banners

had to be approved by the school principals. Given all of these factors,

the court concluded that the banners were government speech and the

district could regulate the speech as it wished.

D. School Board Policies and Regulations

1. Unique Provisions

a. Exclusivity

i. Exclusivity provisions generally are permissible, so long as

they are not offered in a public forum and the exclusivity

provision applies to a commercial product. See Hubbard

Commc’ns v. Metro. Sports Facilities Comm’n, 381 N.W.2d

at 556.

ii. If it applies to a noncommercial advertisement, there is an

argument that the district is only promoting one viewpoint.

iii. Any exclusive contract will subject a school district to

potential claims, so it is important that objective guidelines

are established to evaluate potential exclusive contracts.

9

b. Local Preference

i. Local preference provisions generally are permissible, so

long as they are not offered in a public forum.

ii. If a policy is written or a Request for Proposals is issued

based on local preference, the reason for local preference

(e.g., taxpayers in the school district should receive a

discount because they contribute to the school district’s

revenues) should be articulated.

2. Unique Locations

a. Advertising on School Buses

Advertising on school buses is permitted if done pursuant to a state

contract entered into by the Commissioner of the Minnesota

Department of Education (“MDE”). Minn. Stat. § 123B.93. The

Commissioner has entered into no such contract. MDE has taken

the informal position that while it will not be contracting for

advertising, school districts may advertise on the inside of school

buses, independently, if they so choose.

b. Uniforms

c. Roadside Advertising

Advertising devices that primarily are intended to advertise to

attract operators of motor vehicles are not allowed within 100 feet

of a school. Minn. Stat. § 173.08, subd. 2 (2).

3. Policies for Approval and Enforcement

a. All contracts with advertisers and sponsors regarding

advertisements on school facilities, or that provide naming rights,

must be approved by the school board. The revenue from all

contracts entered into pursuant to this section must be used in

accordance with a plan specified by the school board. Minn. Stat.

§ 123B.025.

Donations that come with advertisements also have to be approved

by the school board. Minn. Stat. § 465.03.

10

b. Other advertisements, including in print and online publications, do

not require school board approval under state law, so long as

whoever enters into the contract for advertisement is designated to

do so by the school board. Best practice is to have a single

individual approving these types of advertisements, as having

multiple people approving advertisements in multiple publications

could lead to inconsistent enforcement.

III. BOOSTER CLUBS & OTHER OUTSIDE GROUPS

A. Creation of Booster Clubs

1. A booster club or other community organization may vary in its form. It

may be a loosely associated group of community members, a legally

incorporated business entity or a non-profit corporation qualifying for tax-

exempt status. Regardless of the form or purpose of the organization and

how it raises funds, booster clubs or other community organizations are,

and must be, legally separate entities from school districts. Consequently:

a. A school board has no direct power to determine the manner in

which a booster club or other community organization is organized

or operated.

b. A school district has no power to prohibit the formation of a

booster club or other community organization. Likewise, a school

district cannot create a booster club organized as a for profit or not

for profit corporation. Minn. Stat. § 465.717, subd. 1.

c. A school district can exercise control over the manner in which a

booster club or other community organization interacts with the

school district’s employees, coaches and students.

d. A school district can inform an organization that it is not

complying with its obligations under the social and charitable

organization laws. See, e.g., Minn. Stat. Ch. 309. Thus, if a

community organization is associating itself with a school district’s

name, mascot or logo without permission, the organization could

be in violation of the law.

2. Ideally, booster clubs and other organizations will be formed as nonprofit

charitable organizations with articles of incorporation filed with the

Secretary of State and/or Attorney General’s Office. See Minnesota

11

Office of the State Auditor, Statement of Position: Outside Organizations

Supporting Schools.

B. Funding Booster Clubs and Intermingling of Funds

1. A school district should not maintain or control an outside organization’s

funds.

2. A school district lacks the authority to fundraise for the benefit of an

outside organization.

C. Accepting Booster Club or Other Community Organization Donations

1. While booster clubs or other community organizations usually are created

for the purpose of supporting a specific school district program or

extracurricular activity, such organizations cannot be allowed to control

the activity. School boards have a duty, which cannot be delegated to any

citizen or group of citizens, to “govern, manage and control” the business

of the district and the interests of its schools, including its athletic and

extracurricular programs. Minn. Stat. § 123B.02, subd. 1; Minn. Op. Atty.

Gen. 159-B-4 (Aug. 28, 1962).

2. School districts can accept gifts from booster clubs, if approved by two-

thirds majority of school board members. Minn. Stat. § 465.03; Minn.

Stat. § 123.02, subd. 6.

3. Once a gift or donation is given to a school district it becomes public

funds and, therefore, must comply with the “public purpose” doctrine. In

general, a school district expenditure will serve a public purpose if it:

a. benefits the community as a whole;

b. is directly related to the functions of the school district; and

c. does not have as its primary objective the benefit of a private

interest.

4. The mere fact that some private interest may derive an incidental benefit

from the activity does not deprive the activity of its public nature if its

primary purpose is public. Visina v. Freeman, 252 Minn. 177, 89 N.W.2d

635 (1958).

5. A donor’s limitations on the uses to which a gift may be put is a more

significant matter than the identity of the donor.

12

a. Generally, a gift or donation may be used for any purpose

consistent with a school district’s general power to make

expenditures and the public purpose doctrine.

b. Expenditures must be consistent with the educational mission of

public school districts. A number of opinions of the Minnesota

Attorney General have discussed the proper expenditure of funds

generated through gifts and donations to school districts. For

example:

i. A school district could not spend money for a booth at a

farmers’ fair. Minn. Op. Atty. Gen. 43 (1942).

ii. As a part of its recreation program, a school district could

accept a gift of funds to acquire and equip a swimming pool.

Minn. Op. Atty. Gen. 159-B-1 (April 23, 1958).

iii. A school district could accept a gift of money to be used for

installing lights, towers and bleachers for its baseball

diamond. Minn. Op. Atty. Gen. 45 (1950).

c. School districts must be wary of donations that come with

conditions or other strings attached. Often a gift is given subject to

an express expectation that it will be used for a specific purpose.

Unless the expressed purpose is consistent with the school district’s

authority to expend funds and the school board is willing to use the

gift for that purpose, it cannot accept the gift.

6. Common Issues Regarding Booster Club and Other Community

Organization Donations

a. Supplementing the pay of coaches

i. There is no statutory prohibition against coaches accepting

supplemental wages from booster clubs or other community

organizations. Allowing such payments, however, may

weaken the authority of an activities director or other school

official over coaches by creating a divided loyalty.

ii. If it is unacceptable to a school district to allow a booster

club or other community organization financial support for

coaches, a policy prohibiting such support should be

adopted. If such support is acceptable, consideration

13

should be given to adopting a policy requiring disclosure to

the school board of the amount of such financial support.

iii. In order to avoid claims that booster clubs or similar

organizations are influencing the selection of players or

their playing time, athletic/activities directors should ensure

that coaches adopt written criteria and apply the criteria in

making such decisions. Consideration should be given to

adopting a policy requiring coaches to develop and

implement such criteria.

iv. Hiring decisions cannot be delegated to and should not be

unduly influenced by booster clubs and similar

organizations. Ultimately, the school district is responsible

for the employment and conduct of its coaches and assistant

coaches.

b. Accounting for Donated Funds

i. School districts should give consideration to requiring that

all gifts of funds or by a booster club or other community

organization be formally recognized and accepted through a

school board resolution.

ii. Once a donation of funds is formally accepted, it becomes

school district property and must be accounted for through

the business office in the same manner as all other school

district funds and equipment.

iii. To the extent funds are donated for a specific purchase, the

school district’s purchase may be subject to the competitive

bidding laws and similar requirements.

iv. Parent teacher associations, booster clubs, and other

community organizations that contribute to school districts

or directly pay for a student activity are not “student

organizations” and their funds should not be controlled or

managed by the school district. Similarly, the Manual for

Activity Fund Accounting (“MAFA”) directs school

districts to have policies in place to ensure that student

activity accounts are not operated on behalf of an outside

community group.

14

c. Donations of Equipment and Supplies

i. School districts should implement policies encouraging

donations of funds rather than donations of equipment and

supplies. This allows the school district to gain all property

warranties, get the best price, and most efficiently manage

its resources. If a school district enacts such a policy, it

should require that outside organizations gain written

approval from an appropriate administrator before donating

equipment and supplies.

ii. School districts can consider adopting policies prohibiting

the acceptance of equipment and supplies without prior

written approval.

d. Use of School District Facilities, Equipment and Resources

i. Improper Public Purpose

Allowing booster clubs or other community organizations

access to clerical, paper products, work space or other

support not made available to other community

organizations may raise claims that all organizations are not

being treated equally and that public funds are being spent

for an improper purpose.

ii. Potential liability

Negligence or similar claims may be brought against school

districts for failing to properly supervise the activities

conducted on their premises or on their behalf by outside

organizations for the benefit of the school. See, e.g.,

Brabson v. Floyd Cty. Bd. of Educ., 862 F.Supp.2d 571

(E.D. Ky. 2012) (By allowing a booster club, which was the

sole source of funding for the school’s cheerleading team, to

conduct a fundraiser on school property, the school was

engaged in a governmental function in the furtherance of

education. While the school district was found to be subject

to liability for injuries sustained by a student who tripped

and fell during the cheerleading competition, in this instance

the court determined that the school district had

governmental immunity and dismissed the claim); Indep.

Sch. Dist. No. 12 v. Minn. Dept. of Educ., 767 N.W.2d 478

15

(Minn. App. 2009), rev’d 788 NW 2d 907 (Minn. 2010) (A

school district was not required to provide special education

accommodations to students to enable them to attend a

private graduation party sponsored by the PTO held outside

of school hours, and away from school and not funded or

supervised by the school district.).

7. Title IX

a. Title IX prohibits sex discrimination in athletics. 34 C.F.R.

§ 106.41.

b. Once funds or equipment are accepted, they become public funds

subject to Title IX.

c. If a school board received an offer of restricted-use funds for

equipment for a boys or girls program, it may either: (a) reject the

donation; or (b) accept the donation and ensure that an equivalent

amount of district funds are expended on the other sex.

IV. COACHES AND VOLUNTEERS

A. Fair Labor Standards Act (“FLSA”)

1. Federal statute governing wages and hours, including minimum wage and

overtime.

2. Exclusions

a. Volunteers – 29 U.S.C. § 203(e)(2)(C)(ii)(I)

b. Employees volunteering generally are not entitled to payment of

overtime. However, the person must actually be volunteering and

cannot be coerced by the employer to work. Also, the employee

must not be doing the same type of work as he or she normally

would do. For instance, a school security guard who provides

security services at a weekend school carnival is entitled to

overtime pay for that carnival, even if it is on the weekend and he

or she chooses to be there. Volunteers may be paid a “nominal”

stipend, including expenses, for their time and still be considered

“volunteers.” See 29 C.F.R. § 553.100-106.

16

3. Teacher Exemptions - 29 C.F.R. § 541.303

a. Teachers may qualify as an exempt employee if the teacher’s

primary duty as a coach is teaching, tutoring, instructing or

lecturing.

b. Exempt teachers include regular academic teachers; teachers of

kindergarten or nursery school pupils; teachers of gifted or disabled

children; teachers of skilled and semi-skilled trades and

occupations; teachers engaged in automobile driving instruction;

aircraft flight instructors; home economics teachers; and vocal or

instrumental music instructors. Id.

c. Minnesota Law contains similar exemptions for executives,

administrators, and professionals (including teachers). See Minn.

Stat. § 177.23, subd. 7(6); Minn. R. 5200.0190–.0210.

4. Overtime Provisions

a. The FLSA requires that all covered and nonexempt employees be

paid not less than one and one-half times their regular rate of pay

for all hours worked over forty in a work week. 29 U.S.C.

§ 207(a)(2); 29 C.F.R. § 778.101; 29 C.F.R. § 553.20. The FLSA

does not require overtime pay for hours worked in excess of eight

hours per day. 29 C.F.R. § 778.102.

b. Generally, volunteers are entitled to overtime if they are

performing the same type of services as in his/her regular job, but

not if they are performing a different type of work. 29 C.F.R.

§ 553.101(c)-(d).

c. Volunteers may be paid a “nominal” stipend for their time and still

be considered “volunteers.” There is no specific definition of

nominal stipend in the statute, or regulations, though it “is not a

substitute for compensation and must not be tied to productivity.”

29 C.F.R. § 553.106(e). Rather, there is a suggestion of several

factors that will be “examined in determining whether a given

amount is nominal: The distance traveled and the time and effort

expended by the volunteer; whether the volunteer has agreed to be

available around-the-clock or only during certain specified time

periods; and whether the volunteer provides services as needed or

throughout the year.” Id.

17

d. In addition, in guidance, the United States Department of Labor

(“DOL”) has adopted the standard for “occasional and incidental”

to define “nominal.” This standard, as interpreted by the DOL,

indicates that “[i]f the stipend is no more than 20 percent of what

the district would otherwise pay to hire a coach or advisor for the

same services, it would appear to be a permissible ‘nominal fee.’”

FLSA Op. Ltr. 2005-51.

e. Other factors supporting the stipend being nominal include the

presence of unreimbursed expenses for travel or supplies, and the

absence of performance-based pay or incentives (e.g. no additional

pay for a winning season or participating in the playoffs). Id.

5. Teacher/Coaches vs. Community Member/Coaches vs. Non-Exempt

Staff/Coaches

a. Exempt employees, including teachers, who perform coaching

duties are generally not entitled to minimum wage or overtime pay

for the time he or she serves as a coach. This is because their

“primary duty” is teaching, an exempt occupation.

b. Community members who serve as coaches are also exempt from

minimum wage and overtime requirements. In a recent

Department of Labor (“DOL”) Opinion Letter, the DOL stated that

coaching is teaching, and because these community members’

primary duty is coaching, they are exempt under the FLSA. FLSA

Op. Ltr. 2018-6.

c. The most difficult issue is with non-exempt staff, such as

custodians or paraprofessionals who coach or sponsor an

extracurricular program. The primary duty of these employees is

not exempt from the FLSA, so they may be entitled to minimum

wage and overtime for the time they spend as a coach.

These employees, therefore, must meet the “volunteer” status for

them not to be paid minimum wage and overtime.

A non-exempt district employee who also works as a coach or

otherwise with extracurricular activities likely is not entitled to

overtime pay for his or her time as a coach, even if that coach

receives a small fee for that coaching. This matter was before the

Fourth Circuit Court of Appeals, where a school security guard also

worked as a golf coach. The employee claimed he was entitled to

18

overtime pay for 300-450 hours per year of coaching. See

Purdham v. Fairfax Cty. Sch. Bd., 637 F.3d 421 (4th Cir. 2011).

The court held that he was a “volunteer” for purposes of the FLSA,

and thus not entitled to any overtime for his time coaching. This

decision is consistent with opinion letters from the DOL.

6. “Occasional and Sporadic” volunteering

a. Under 29 C.F.R. § 553.30, state and local government employees,

solely at their option, may work occasionally and sporadically for

the same public agency in a different capacity from their regular

job and those hours worked occasionally and sporadically are not

combined with hours worked in the regular job to determine

overtime compensation. This does not mean regular part-time

work and performing the work cannot be a condition of

employment. Further, the work performed cannot be the same kind

of work the employee normally does.

b. Examples of what is not included within this exemption:

i. Bookkeeper collecting tickets for all football games because

this work would not be sufficiently occasional or sporadic

and may be in the same capacity as the employee’s regular

duties;

ii. Food service employee providing a cookies and coffee

service for parent-teacher conference night because the work

is in the same capacity as the employee’s regular duties.

B. Utilization of Volunteers

1. In general, the use of volunteers in schools to perform work traditionally

assigned to bargaining unit members may be considered an unfair labor

practice under the Public Employment Labor Relations Act (“PELRA”) if

the volunteers are utilized to displaced present school employees. See

Foley Educ. Ass’n v. ISD # 51, 353 N.W.2d 917 (Minn. 1984).

2. To avoid an unfair labor practice claim:

a. Clarify collective bargaining agreements; bargain for a change of

duties, if needed

19

b. Distinguish volunteer duties and assign volunteers only for non-

bargaining unit work

c. Ensure that the addition of volunteers does not increase the duties

of employees

C. Anti-Discrimination Laws

As recipients of federal funds, school districts often are subject to laws that

would otherwise not apply to volunteers. These include: Title VI, Title IX, the

Americans with Disabilities Act (“ADA”), and Section 504 of the Rehabilitation

Act, which prohibit discrimination in all activities and programs of the school

district, not just in employment. See also Minn. Stat. § 363A.13, subd. 1.

D. Background Checks

1. Minnesota law does not require a school hiring authority to perform a

criminal background check for any volunteers other than volunteer

coaches, regardless of how, if at all, volunteer coaches are compensated.

Minn. Stat. § 123B.03, subd. 1(a), (c).

2. A school hiring authority has the ability and discretion to conduct a

criminal history background check on “any individual who seeks to enter

a school or its grounds for the purpose of serving as a school volunteer or

working as an independent contractor or a student employee.” Minn. Stat.

§ 123B.03, subd. 1(c).

E. Liability for Volunteers

1. School districts are liable for the torts of their officers, employees and

agents acting within the scope of their employment or duties whether

arising out of a governmental or proprietary function. See Minn. Stat.

§ 466.02.

2. Volunteers may be considered “agents” for purposes of general tort

liability for injuries sustained by others as a result of the conduct of the

volunteer. See, e.g., Jurek v. Thompson, 241 N.W.2d 788 (Minn. 1976);

Minn. Op. Att’y Gen. 183-q (Jan. 10, 1972).

3. Even if not found liable, school districts may face litigation alleging

responsibility for the acts of a volunteer and/or for alleged negligent

training or hiring of volunteers. See, e.g., S.J. v. Kansas City, Missouri

Pub. Sch. Dist., 294 F.3d 1025 (8th Cir. 2002).

20

4. Minnesota law sets forth a school district’s obligation to indemnify

officers and employees for any damages as a result of any claims brought

against these individuals. This section applies to “officers and

employees,” so it is questionable whether it applies to volunteers. See

Minn. Stat. § 466.04.

a. The Supreme Court of Minnesota has found that independent

contractors do not need to be indemnified. Sota Foods, Inc. v.

Larson, Peterson & Assoc., 497 N.W.2d 276 (Minn. Ct. App.

1993).

b. A school district may have an obligation to notify volunteers of

possible exposure to personal liability and the possibility that

indemnification by the school district may not be available. See

Kelley v. City of St. Paul, 285 N.W.2d 671 (Minn. 1979) (a

municipality-employer has the obligation to inform other named

defendants if it will not be indemnifying them in the claim).

5. Minnesota Statutes Section 466.06 provides authority for school districts

to procure insurance coverage for the acts of volunteers.

F. Fenrich v. The Blake School, A17-0063 (Minn. 2018)

1. In this case, a student-driver was involved in a car accident with another

vehicle on the way to a non-MSHSL-sanctioned cross-country meet. The

student was using his phone at the time.

2. The issue in the case was whether The Blake School could be liable for

the injuries to the persons in the other vehicle.

3. The Court found that, given these circumstances, the school could be held

liable. Ordinarily, schools owe no duty of care for injuries caused by a

third-party’s conduct (i.e., the student), but the Court found that the school

had sufficient involvement in publicizing, planning, and arranging for the

cross-country meet that the school could be liable for the injuries of the

passengers in the other automobile.

4. The Court found that there was a fact issue on whether it was reasonably

foreseeable that this type of accident could occur, because it is well known

that teens are distracted drivers.

21

5. Takeaways:

a. If school districts allow students to arrange for their own

transportation to or from extracurricular events, they should not be

involved in the planning of such transportation. Do not take

actions that assume supervision or control of the students’ own

transportation.

b. School districts should get waivers from parents of students who

provide their own transportation to or from extracurricular

activities. This waiver should state that the parents agree to defend

and indemnify the school district if someone is injured while the

student is going to or from an extracurricular activity.

c. When transporting students to or from extracurricular activities is

not practicable, school districts should consider passing resolutions

outlining why they have made the decision that transporting the

students is not practicable, but also stating why the school district

believes that the extracurricular activity benefits the students’

education.

RRM: 315287