Why Volunteers Need to Understand The FLSA

Today’s burning question: Do volunteer fire departments have to worry about the FLSA?

Answer: The Fair Labor Standards Act (FLSA) has the potential to impact a wide range of fire departments in the United States. That includes many if not most volunteer departments.

To understanding the problem, let’s begin with a simple question: what is a volunteer firefighter? Which of the following are volunteers:

  • Someone who receives no compensation for his/her time, who is under no duty to respond, and who may choose to respond when available
  • Someone who works a set shift during which time he/she is under a duty to respond, and who receives no compensation
  • Someone who works a set shift, wears a uniform while on that shift, and is under a duty to respond when on-duty, but receives no compensation

Is the individual in each of the above scenarios a volunteer or an illegally unpaid employee who is entitled to compensation? Under the FLSA the answer will turn on the understanding of the parties. If the fire department and the firefighter agree that the services are to be provided without compensation, then the firefighter is a volunteer. Uniforms and mandatory shifts do not transform a volunteer into an employee.

However, what if the parties disagree over their understanding about compensation? Let’s leave that one for a moment.

What is the impact to each of the above scenarios if the firefighter receives a small stipend for his/her time? Is the firefighter still a volunteer or does the stipend change the parties’ understanding to the extent that the stipend is considered compensation? Does the amount of the stipend matter? Does the uniform and set shift matter?

And what if the parties disagree? In a not-so hypothetical – hypothetical, what if a stipend-based volunteer firefighter who was recently removed from the fire department claims he/she was actually an illegally under-compensated employee? What if just before the firefighter was removed he made a remark to his/her officer about being underpaid? Might that firefighter have an FLSA retaliation case teed up?

The bad news for volunteer fire departments is if the stipend is tied to “hours of work or productivity” or if it does not meet certain FLSA requirements, the firefighter may be considered an under-compensated employee. If that is the case, the firefighter would be entitled to minimum wage for all hours worked/volunteered, plus overtime when his/her hours exceed the applicable threshold.

Let’s consider one more type of firefighter often referred to as a volunteer:

  • Someone who receives a token hourly compensation for his/her time when he/she responds, but who is under no duty to respond and only responds when available (ie. they respond when they choose, but are paid a small hourly rate)?

Under the FLSA, volunteer firefighters who are compensated on an hourly rate are considered to be hourly employees. They must receive at least minimum wage and are entitled to overtime when their hours worked exceeds the applicable maximum hours threshold.

Realizing what is at stake, Congress and the US Department of Labor have provided some clarification for volunteers. For example, the FLSA includes the following:

29 U.S.C. §203

(e) (4) (A) The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if—

(i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and

(ii) such services are not the same type of services which the individual is employed to perform for such public agency.

While helpful, the above provision raises just as many questions as it answers:

  • Does a volunteer fire company that is a 501(c)(3) non-profit qualify as a public agency?
  • What benefits are reasonable?
  • What is a nominal fee?

So to answer the burning question directly, the leadership of volunteer fire departments need to understand the FLSA. The failure to do so may result in firefighters who the department believes to be volunteers, being deemed to be underpaid employees.

The application of the FLSA to volunteer firefighters is much more complex than can be explained in a simple post. Discussing the factors that go into whether a stipend is a nominal fee or a “substitute for compensation” would require a post at least as long as what has already been written here.

If I can leave you with one closing thought: The FLSA is not just a matter of concern to career fire departments, or departments with paid personnel. Volunteer fire departments need to be concerned with the FLSA.

Please consider joining us at one of the following FLSA For Fire Department conferences.

Jan. 31- Feb. 2, 2017 Program: Georgetown, TX

Hosted by the Georgetown Fire Department

May 9-11, 2017 Program: Miami-Dade, Florida

Hosted by Miami-Dade Fire Rescue


Oct. 10-12, 2016 Program: Hanover Park, IL
 

Hosted by the Hanover Park Fire Department

 

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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