Volunteer Firefighters Qualify as Employees Under Fair Labor Standards Act and Family Medical Leave Act

A volunteer firefighter alleged his termination violated the Fair Labor Standards Act (“FLSA”) and the Family Medical Leave Act (“FMLA”).  The United States Court of Appeals for the Sixth Circuit reversed the district court’s grant of summary judgment for the City of Gibraltar.  The court found that the volunteer firefighter was an employee of the City because he performed services with an expectation of compensation and the compensation was not a nominal fee.  (Mendel v. City of Gibraltar (727 F.3d 565, C.A.6 (Mich.), August 15, 2013).

Facts

Paul Mendel (“Mendel”) was employed by the City of Gibraltar (“City”) as a dispatcher in the police department and also served as a volunteer firefighter.  After Mendel’s employment was terminated, he sued the City for allegedly violating his rights under the FMLA and FLSA.  The City claimed that volunteer firefighters are not employees of the City and that the City does not meet the requirements for FMLA.

At the time Mendel was terminated from his position, the City employed 41 employees excluding its volunteer firefighters.  The City required that volunteer firefighters complete training on their own time without compensation.  The volunteers are not required to respond to any emergency call, but they are paid $15 per hour when they do respond to a call or maintain equipment.  They do not work set shifts or staff a fire station and they do not receive health insurance, sick or vacation time, social security benefits or premium pay.  The volunteer firefighters generally receive a Form-1099 MISC from the City.  The City does have an employment application for the firefighters and it keeps a personnel file for each firefighter.  Mendel introduced evidence demonstrating that several other communities pay their full-time firefighters wages ranging from $14 to $17 per hour.

The City filed a motion for summary judgment asserting that it did not have enough employees for application of the FMLA because volunteer firefighters are not employees for purposes of the FMLA.  The district court granted summary judgment in favor of the City.

Decision

The issue on appeal was whether Mendel was an “eligible employee” within the meaning of the FMLA.  The FMLA excludes “any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.”  29 U.S.C. § 2611(2)(B).  If the volunteer firefighters are employees of the City, then the City employs 50 or more employees and Mendel is an eligible employee under the FMLA.

The FMLA provides that the terms “employ” and “employee” have the same meaning as given in § 203(e) of the FLSA.  Section 203(e) of the FLSA defines “employee” as “any individual employed by an employer.”  Section 203(g) defines “employ” as “to suffer or permit to work.”  The court found that the volunteer firefighters fell within the FLSA’s broad definition of employee because the firefighters were suffered or permitted to work, and even received substantial wages for their work.

The court continued its analysis in light of amendments to the FLSA, which clarified that individuals who volunteer to perform services for a public agency are not employees under the FLSA if the volunteer received no compensation or was paid expenses, reasonable benefits, or a nominal fee to perform the services for which they volunteered.  29 U.S.C. § 203(e)(4)(A).  The court specifically examined whether the wages paid to the volunteer firefighters constituted “compensation” or a “nominal fee.”  The court decided that the hourly wages paid to the firefighters were not nominal fees, but were compensation under the FLSA, because the firefighters performed services with the promise, expectation, and receipt of substantial compensation.  The court also noted that the hourly wages paid to the volunteer firefighters were substantially similar to the hourly rates paid to full-time employed firefighters in some of the neighboring communities.

The court distinguished the applicability of § 203(y) of the FLSA to this case.  That section defines “employee in fire protection activities” and contains special rules for calculating overtime pay.  The court held that this section was inapplicable to this case because the role of § 203(y) is to define a particular class of firefighters who are treated somewhat differently from ordinary employees.  The statute for determining whether firefighters qualify as employees or volunteers under the FLSA in general is § 203(e).