What happened. Elmendorf, Texas, has a population of only 664, and only about 30 people worked for the city's police department for varying amounts of time from 2000 to 2002. What's crucial to this case is that only three of those 30 were paid for their work­the police chief and two part-time officers. None of the rest were compensated for the hours they put in. They said that the reason they volunteered was to maintain their police commissions with the Texas Commission on Law Enforcement Officer Standards and Education. Under its regulations, police officers can continue their commissions only through a law enforcement agency or by taking courses to stay up to date.

The 27 unpaid officers presumably found it less expensive to give their time to the police force than to take courses. But then four people who had formerly been paid Elmendorf police officers decided to sue the city for unpaid overtime hours due them under FLSA. And the tricky part was that FLSA exempts from coverage any public fire or police protection agency employing fewer than five people. So the plaintiffs went to court to have their unpaid colleagues declared employees. The unpaid officers pointed out that their purpose in working was not civic loyalty but to maintain their commissions­a tangible benefit to them. A federal district court dismissed the four officers' overtime claim, and they appealed to the 5th Circuit, which covers Louisiana, Mississippi, and Texas.

What the court said. Appellate judges said, in effect, that a person who looks like a volunteer, talks like a volunteer, and walks like a volunteer­must be a volunteer. So Elmendorf is not covered by FLSA and needn't pay overtime to its three employees. Cleveland, et al., v. City of Elmendorf, U.S. Court of Appeals for the 5th Circuit, No. 04-50103 (10/18/04).

Point to remember: The 5th Circuit judges said the work of police officers and firefighters is so dangerous that contributing their time has to be seen as civic loyalty­volunteerism­not employment. Only public employers of fire protection and law enforcement personnel can avoid coverage by FLSA if they employ too few people.