Labor and Employment Law

Volunteer Firefighters are Employees for Purposes of Federal Law, Sixth Circuit Holds

 Last week, a divided Sixth Circuit panel determined that "volunteer" firefighters who receive $15 per hour are employees for purposes of federal employment laws. Mendel v. City of Gibraltar, __ F3d __, 2013 U.S. App. LEXIS 16922 (6th Cir, Aug 15, 2013) [an enhanced version of this opinion is available to subscribers]. In the case, Plaintiff, a dispatcher, brought a civil action against Defendant city alleging violations of the Family Medical Leave Act (FMLA). On appeal, the decisive issue in the case was whether so-called volunteer firefighters were actually employees as defined by the FMLA and the Fair Labor Standards Act (FLSA). If the firefighters were employees, then the city employed more than 50 individuals and was required to provide Plaintiff benefits under the FMLA.

The court applied the Supreme Court's broad "economic reality" test, (see Tony and Susan Alamo Found. v. Sec'y of Labor, 471 US 296, 301 (1985)) [enhanced version], and looked at a variety of factors in determining whether the firefighters were employees. Among other things, the court considered that:

  • The firefighters were required to complete training on their own time without compensation;
  • They were not required to respond to any call;
  • When they did respond, they were paid $15 per hour for the time they spent;
  • The city kept personnel files on the firefighters; and
  • The city could discharge or promote the firefighters.

On balance, the court determined that the firefighters are "suffered or permitted to work" and are therefore employees. See 29 USC § 203(g) (so defining an employee under the FLSA) [an annotated version of this statute is available to subscribers]  . The court also held that the firefighters did not fall into the FLSA's narrow exception for individuals who volunteer to perform services for a public agency, 29 USC §203(e), because the $15 per hour that they received was more than a "nominal fee."

Mendel sounds a cautionary reminder for public and private employers alike. For purposes of state and federal law, it is not how the employer categorizes the individuals who perform services on its behalf. Instead it will be statutory definitions of employee that will control which service providers are employees under the law. Independent contractors, workers from a temp agency and volunteers may actually be employees, potentially triggering obligations across an employer's entire workforce. Employers who have doubts about the categorizations of individuals performing services on their behalf are urged to consult with their employment counsel to ensure compliance.

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Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements.

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