Court Rules Volunteer Compensation Makes Them Employees

The US District Court for the Western District of Washington has ruled that two believed-to-be volunteer firefighters who received shift stipends and point-based bonuses were actually employees entitled to minimum wage and overtime for the 3,000 hours per year they claim they worked.

Luis Aponte and Jennifer Self served with Mason County Fire Protection District No. 16 prior to their termination in 2020. They and other “volunteers” were paid $100 for working a 24-hour shift and $50 for working a 12-hour shift. In addition they received additional payments on a point-system for completing certain activities and meeting certain call requirements. They also performed EMS detail work at a local race track for $15/hour in 2018 and $20/hour in 2019.

After their termination, they filed complaints with the US Department of labor, who concluded they were employees. They then filed suit seeking minimum wage and overtime compensation under both the Fair Labor Standards Act (FLSA) and the Washington Minimum Wage Act (MWA) that established a higher minimum wage, ranging between $11 per hour in 2017 up to $13.50 in 2020.

The court wrestled with the issues, but ultimately concluded that both Aponte and Self were employees, not volunteers based on four primary grounds (explained in greater detail below). Those four reasons are:

  1. They were not primarily motivated by civic, charitable, or humanitarian reasons, but rather sought compensation;
  2. The compensation was in excess of 20% of what the prevailing wage was;
  3. The compensation was based upon productivity in that the more they worked, the more they received;
  4. Serving 3,000 hours per year (approximately 50 hours per week) is more consistent with employment than volunteering.

Here is the court’s explanation in its own words:

  • At the outset, it is important to note that the fact that Plaintiffs were labeled as “volunteer” firefighters has little relevance to the Court’s FLSA analysis.
  • Courts have long noted that “the terms the parties use are not controlling when we inquire whether an individual is an employee or a volunteer under the FLSA.”
  • Defendant argues that Plaintiffs were exempt from the FLSA’s minimum wage and overtime provisions because they were “volunteers” and not employees pursuant to 29 U.S.C. § 203(e)(4)(A).
  • 29 C.F.R. § 553.106 provides that: (e) Individuals do not lose their volunteer status if they receive a nominal fee from a public agency. A nominal fee is not a substitute for compensation and must not be tied to productivity. However, this does not preclude the payment of a nominal amount on a “per call” or similar basis to volunteer firefighters.
  • DOL has previously advised that “[a] willingness to volunteer for 20 percent of the prevailing wage for the job is also a likely indication of the spirit of volunteerism contemplated by the 1985 amendments to the FLSA. This interpretation of ‘nominal fee’ applies equally in the context of firefighters.”
  • Working for more than 20 percent of prevailing wage is thus indicative of an employment relationship.
  • Additionally, the DOL has advised that “it is unlikely that 3,000 hours of service (50+ hours per week) is ‘volunteering’ rather than employment.”
  • And finally, the DOL, in interpreting its own regulations has determined that “to the extent that payments are tied to productivity (e.g., payment of hourly wages for services rendered), are similar to ‘piece rates,’ or are comparable to ‘production bonuses,’ there is a greater likelihood that such fees are not nominal.”
  • Both parties have presented evidence that they believe merits summary judgment. Plaintiffs assert that “there was a promise, expectancy, and receipt of pay for Plaintiffs’ work as firefighters, and Defendant has not provided evidence that Plaintiffs worked for civic, charitable, or humanitarian reasons.”
  • They allege that Plaintiffs worked for compensation as a primary source of their income, that they relied on the income they received from Defendant, and they were not paid on a “per call” basis, as discussed in the DOL regulations.
  • They also assert that Plaintiffs worked hours that were inconsistent with a volunteer employment relationship and that they received bonus payments for completing a certain number of shifts.
  • Defendant, by contrast, argues that the payment that Plaintiffs received in return for their services was a permissible “nominal fee” and not compensation.
  • They further argue that “Plaintiffs are paid a set stipend per shift that they volunteer to take. This stipend has nothing to do with the number of calls they respond to or how productive they are.”
  • They also agree with Plaintiffs that “Plaintiffs in this case were paid a nominal fee that would amount to $4.17 per hour.”
  • While the Court must construe the facts in Defendant’s favor here, the Court ultimately concludes that there is no genuine dispute of material fact and determines that Plaintiffs are entitled to summary judgment on their claim that Plaintiffs are not volunteers for purposes of 29 U.S.C. § 203(e)(4)(A) and, in fact, are employees for purposes of the FLSA.
  • First, DOL’s regulations interpreting § 203(e)(4)(A) clearly provide that volunteers are “individual[s] who performs hours of service for a public agency for civic, charitable, or humanitarian reasons.”
  • Plaintiffs argue and present evidence that they did not perform work for Defendant for civic, charitable, or humanitarian reasons.
  • They assert through affidavits that they did not sign a Waiver/Resident Firefighter form. These waivers explicitly disclaim that volunteers are entering into an employment agreement.
  • Plaintiffs also note through deposition testimony that they relied on their income from their volunteer firefighter position, which would support Plaintiffs’ claim that they did not volunteer as a firefighter for civic, charitable, or humanitarian reasons.
  • Fire Chief Welander’s notes indicate that he knew that Plaintiffs were reliant on their positions as firefighters for their primary income.
  • Defendant, however, has offered no evidence that Plaintiffs were motivated by genuine civic, charitable, or humanitarian reasons and Plaintiffs have offered clear evidence that they were motivated by other financial reasons when they accepted positions with the Defendant.
  • Second, Plaintiffs’ compensation is strongly suggestive of an employment relationship.
  • As previously noted, the DOL has advised that payment in excess of 20 percent of the prevailing wage is indicative of an employment relationship.
  • It is undisputed that Plaintiffs were paid per shift an amount that would constitute a wage of $4.17 per hour.
  • Additionally, both parties agree that volunteers received compensation from $15 per hour in 2018 to $20 per hour in 2019 to work at the Ridge.
  • The DOL also determined that firefighters employed with Defendant during the same period, and thus earning the same compensation, earned more than the DOL’s 20 percent threshold under various scenarios and as such their payment could not be considered a nominal fee.
  • Third, Plaintiffs were paid based on their “productivity.”
  • Plaintiffs were paid based on the type of shift they took, and their pay period varied based on the number of hours that they worked.
  • The Court agrees, as the DOL concluded, that such payments were based on productivity.
  • Payment was tied to their shift, an hourly unit of time, and not “per call,” as permitted by regulation.
  • Fourth, Plaintiffs’ hours worked, considering the other evidence, do not suggest that they were engaged in volunteer activities. As the DOL has noted, working more than 3000 hours per year is more likely to indicate employment rather than volunteer services.
  • Plaintiffs have presented evidence that at least one plaintiff (Mr. Aponte) worked more than 3000 hours in 2019 and that Ms. Self was on track to exceed 3000 hours before her termination.
  • Chief Welander also noted in his deposition testimony that a career firefighter would work around 2600 hours per year.
  • This “level of work is more consistent with employment than volunteer labor.”
  • As such, in considering the totality of Plaintiffs’ employment circumstances and the relevant DOL regulations and opinion letters, the Court finds that Plaintiffs were employees under the FLSA and GRANTS summary judgment to Plaintiffs on the issue of whether the Plaintiffs were employees as opposed to volunteers as provided by 29 U.S.C. § 203(e)(4)(A).

Here is a copy of the decision:

By the way: Don’t miss our 24 hour FLSA for Fire Departments webinar, December 6, 8, 13 and 15, 2022. We cover this issue in detail as well as alot more.

If you are a past attendee and want to refresh, we have a special deal. Those who have been to one of our FLSA for Fire Department’s classes (live-in person or live-on line) in the past three years can attend this webinar for just $99. Email me or Bill Maccarone for details.

UPDATED: November 29, 2022 – Fire Law Short

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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