The following summary is based on an opinion of the U.S. Court of Appeals for the Sixth Circuit. This is not the appellate court for decisions of the U.S. District Court for the District of New Hampshire and its opinions bind only those districts within the Sixth Circuit; however, federal appeals opinions may be persuasive guidance for other circuits on issues of federal law.
This opinion addresses whether or not “volunteer” firefighters are “employees” for purposes of two federal laws. The first, the Family and Medical Leave Act (FMLA), provides eligible employees with the right to up to 12 weeks of unpaid leave time (and job security) for the birth or care of a newborn or adopted child, care of a family member with a serious health condition, or for a serious health condition of the employee. The Fair Labor Standards Act (FLSA) provides, among other things, for overtime wages when employees work more than a certain number of hours.
The Court found that volunteer firefighters who were paid $15/hour when they responded to calls were “employees” for purposes of FMLA and FLSA. It arose out of an FMLA case filed by a former firefighter against the City of Gibraltar, Michigan. The only issue in the case was whether or not the firefighter was an employee under FMLA. However, the holding extends to FLSA as well because FMLA uses the definition of “employee” that is found in FLSA.
The City argued that it was not subject to FMLA because it did not have enough employees. However, if the City’s volunteer firefighters were included in the count, it did have enough employees and was required to provide its employees with requested leave under FMLA.
Ultimately, the issue before the Court was whether the wages paid to the firefighters were “compensation” or merely a “nominal fee.” FLSA provides that the term “employee” does not include municipal volunteers who receive no compensation or is paid expenses, reasonable benefits or a nominal fee to perform the services for which they volunteered. 20 U.S.C. section 203(e)(4)(A). The regulations under FLSA provide that a “volunteer” is an 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. 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.
Looking at the amount the firefighters were paid in the context of what employees in the area were paid for similar services, the Court noted that they were paid a similar amount and concluded that their wages were more than a “nominal fee.” “Essentially, the Gibraltar firefighters are paid a regular wage for whatever time they choose to spend responding to calls.” As a result, the Court held that the firefighters were “employees” for purposes of both FLSA and FMLA.
Although this opinion is not binding upon First Circuit federal courts or the New Hampshire Supreme Court, it is instructive and consistent with the opinions of many other courts around the country. Municipalities may wish to consult with their labor attorney to discuss the payments made to volunteer firefighters to determine whether they are treated as volunteers or employees under these laws.