Volunteer firefighters didn’t fall within volunteer exemption

A federal district court in Arizona granted volunteer firefighters their partial summary judgment motion, finding that they were “employees” of a fire district under the FLSA and state law. Because the plaintiffs clearly worked “in contemplation of compensation,” the court found that they met their burden of establishing an employer-employee relationship under the FLSA. Moreover, because there was an expectancy of compensation for services rendered, they were paid in part on an hourly basis, their pay was not nominal, and they worked more hours than typical volunteers, the court also concluded that they did not fall within the volunteer exception.

Volunteer firefighters

Prior to their termination, the two plaintiffs worked as volunteer firefighters. The fire district was established in 1979 and employed a full-time fire chief, lieutenant, and administrator; however, the majority of its workforce was comprised of volunteer firefighters. At any given time, the force was made up of 13 to 17 volunteer firefighters. The full-time employees received health insurance coverage as well as an annual salary. The firefighters were paid: $50 flat-rate for a 24-hour shift, $25 flat-rate for a half-shift, and $10 to $15 per hour while responding to calls during their shifts. Firefighters also received $10 per hour for training and sometimes received other stipends for travel.

Firefighters applied by filling out an “Application for Employment” and were required to pass a physical. They also had to fill out and submit a W-4, I-9, and other forms, which are kept in their personnel files. The fire chief maintains a monthly shift schedule based on availability of each firefighter. Although there appears to be no minimum hourly requirement per week, a firefighter may work a maximum of four shifts per week. During their shifts, firefighters are required to remain at or close to the station. The fire chief and lieutenant disciplined firefighters for tardiness, unpreparedness, and other reasons.

The first plaintiff worked approximately 1,500 hours during 2012 and worked approximately 2,400 hours before his termination in November 2013. He was terminated for failing to appear for shifts and inappropriate behavior. The second plaintiff worked over 3,000 hours in 2012 for the fire district. He was terminated for tardiness, insubordination, and inappropriate behavior. The plaintiffs filed suit alleging failure to pay minimum wage under both the FLSA and Arizona Minimum Wage Act (AMWA), failure to pay overtime under the FLSA and AMWA, and retaliation under the FLSA and AMWA. The parties filed cross-motions for summary judgment on the question of whether the plaintiffs were “employees” under the FLSA and AMWA. The employer also sought summary judgment as to whether the overtime provisions of the FLSA applied to the fire district.

Employee status

Neither the FLSA nor the AMWA apply to an “individual who volunteers to perform services for a public agency.” The central issue in this case is whether the plaintiffs were “employees” of the fire district under either statute. In this instance, the plaintiffs had the burden of proving that an employer-employee relationship existed and that their activities constituted employment for purposes of the Act. For its part, the fire district had the burden of proving that the plaintiffs fell within the volunteer exemption.

“[E]mployees are those who as a matter of economic reality are dependent upon the business to which they render service.” In contrast, “[a]n individual who, ‘without promise or expectation of compensation, but solely for his personal purpose or pleasure, worked in activities carried on by other persons either for their pleasure or profit’ is outside the sweep of the Act.” The test is whether the individual works either expressly or impliedly “in contemplation of compensation.”

Here, the fire district did not dispute that the plaintiffs received agreed-upon compensation for their work as firefighters. The plaintiffs presented undisputed declarations that, in taking firefighter positions with the fire district, they were “primarily motivated by receiving compensation, which was relatively high among the available jobs in the area at that time.” As a result, the court concluded that the plaintiffs plainly were “suffer[ed] or permit[ted] to work” by the fire district as stated in Sec. 203(b) of the FLSA, and clearly worked “in contemplation of compensation.”. The court therefore found that the plaintiffs had met their burden of establishing an employer-employee relationship under the FLSA.

Volunteer exemption

The court next turned to consider whether the fire district had shown that the plaintiffs fell within the volunteer exemption of Sec. 203(e)(4)(A). Under Department of Labor (DOL) regulations, 29 C.F.R. Sec. 553.101(a), a volunteer is defined as “[a]n individual who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered[.]” Volunteers may, however, “be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers,” Sec. 553.106(a). Here, the parties disagreed on whether money paid to the plaintiffs qualified as “a nominal fee.”

In this instance, the court concluded that the plaintiffs did not qualify as volunteers. First, the plaintiffs did not perform “hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered[.]” There was a promise, expectancy, and receipt of pay for the plaintiffs’ work as firefighters. Second, the plaintiffs were paid in part on an hourly basis. As explained in a DOL opinion letter: “to the extent that payments are tied to productivity (e.g., payment of hourly wages for services rendered). . . there is a greater likelihood that such fees are not nominal.”
Third, the circumstances of the plaintiffs’ employment did not, under the regulations, suggest that their pay was nominal. The regulations identify several factors to be considered in deciding whether compensation amounts to a nominal fee. Applying those factors did not show particular sacrifice on the part of the plaintiffs. They did not have to travel great distances to work and were not available around-the-clock for fire calls. Although they did work throughout the year, they did so only on their own schedules. Thus, the substantial compensation they received cannot be said to have been merely reflective of the sacrifice they made as volunteers, making it less likely to be viewed as a nominal fee, Sec. 553.106(e).

Fourth, the plaintiffs worked more hours than typical volunteers. The DOL has suggested that working at a level of 3,000 hours per year is not consistent with volunteer work. Additionally, case law supported the court’s conclusion that the plaintiffs were not volunteers within the meaning of the FLSA. The court observed that the plaintiffs’ situation presented a stronger case for employee status than similar cases. Here, the plaintiffs’ pay was comparable to that of full-time firefighters in the area. Further, the fire district treated the plaintiffs like employees by requiring an employment application, maintaining a personnel file, and disciplining them if they did not show up for scheduled shifts. Considering the narrow construction of FLSA exceptions, the court concluded that the economic reality of the plaintiffs’ work was that they did not fall within the volunteer exception. (Martinez v Ehrenberg Fire District, DAriz, 165 LC ¶36,351.)

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