Volunteer, On-Call, and Employees Fire Departments: Understanding the Law

Margaret M.L. Byrnes

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

Volunteer, On-Call, and Employees Fire Departments:  Understanding the Law

Did you know there is no law that requires a municipality to establish a fire department? But when a municipality does have a fire department, there are so many aspects to be concerned with that sometimes the “basics” can be forgotten. For example, it may be easy to overlook some administrative elements, particularly regarding classification and compensation of firefighters. Because errors in this area can create legal issues for municipalities, let’s review both the relevant New Hampshire and federal law.

Volunteer, On-Call, or Employee?

The first step is determining what kind of fire department you have. According to the New Hampshire Department of Safety website, there are three basic categories of firefighters in New Hampshire: volunteer, paid on-call, or permanent employees. Call and volunteer firefighters are defined under New Hampshire law as firefighters who are not regularly employed by a fire department of any city, town or precinct in the state but who answer for duty only to fire alarms and who have been appointed by the fire department with which the firefighter serves. RSA 281-A:2, I. In fire departments that designate themselves as “call fire departments,” there are generally no regularly-staffed shifts, and firefighters respond to calls, receiving a level of compensation on a per call basis, or perhaps as a monthly stipend. According to the New Hampshire Department of Safety, about 80% of New Hampshire fire departments operate as volunteer or on-call. The final category consists of those who are permanent firefighters or career firefighters—i.e., employees. https://www.nh.gov/safety/divisions/fstems/training/becomff.html.

Why Does Classification Matter?

There are requirements for certain permanent or employee firefighters that do not also apply to volunteer and on-call firefighters, and there are other considerations for on-call or volunteer firefighters that municipalities must be aware of.

First, those who qualify as “full-time career firefighters” must satisfactorily complete a preparatory program of fire training consisting of an accredited certification program meeting the objectives of a nationally accepted standard regarding firefighter professional qualifications. RSA 21-P:29 (I). Under the New Hampshire Department of Safety Administrative Regulations, “full-time career fire personnel” means firefighters, fire officers, rescue personnel connected with fire departments, fire prevention officers, inspectors, investigators, fire instructors, public education specialists, fire alarm personnel, or any other personnel who are members of fire departments or fire-related state agencies, whether full or part-time any fire service personnel, who are:

(a) Employed as a member of one or more fire departments of the state, political subdivision of the state, or private fire department providing fire services to the general public; and

(b) Working in such a capacity for an average of 30 hours per week or more during any consecutive 12-month period. Fire 101.17; Fire 101.16; RSA 21-P:25, II(c).

These regulations, which include the minimum standards and qualifications for proper certification, can be found at http://www.gencourt.state.nh.us/rules/state_agencies/fire.html.  While other on-call or volunteer firefighters are not subject to these same requirements, there are obvious reasons for a municipality to consider training for all firefighters.

Second, for those municipalities with firefighters who are not employees—volunteer or on-call firefighter departments—payment of firefighters can be a complicated issue. Both state and federal law allow for some payment of these “non-employees,” but there are significant limitations that must be understood. Under New Hampshire law, individuals who perform services but do not receive “significant remuneration” are exempted from the definition of employee. RSA 281-A:2, VII(b). Furthermore, RSA 508:17, V(c) defines “volunteer” as “an individual performing services for a nonprofit organization or government entity who does not receive compensation, other than reimbursement for expenses actually incurred for such services.” And, as noted above, call or volunteer firefighters are not “regularly employed” by municipal fire departments. RSA 281-A:2, I.

The federal Fair Labor Stands Act (FLSA), which establishes, among other things, a national minimum wage and overtime compensation requirements, similarly provides:

The term “employee” does not include any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency, if—(i) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and (ii) such services are not the same type of services which the individual is employed to perform for such public agency. 29 U.S.C. § 203(e)(4)(A).

The corresponding federal code allows volunteers to be “paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their service without losing their status as volunteers.” 29 C.F.R. §553.106.

The federal code, 29 C.F.R. §553.106, provides a variety of ways in which any volunteer can be paid without converting the individual into an “employee” for the purposes of the FLSA. Things like a uniform allowance, reimbursement for transportation, or a municipality paying for workers’ compensation insurance will not automatically deem someone an “employee” for the purposes of the FLSA. In fact, the federal code specifically allows the “per call” payment of non-employee firefighters, with limitations:

(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. The following factors will be among those examined in determining whether a given amount is nominal: The distance traveled and the time and effort expended by the volunteer; whether the volunteer has agreed to be available around-the-clock or only during certain specified time periods; and whether the volunteer provides services as needed or throughout the year. An individual who volunteers to provide periodic services on a year-round basis may receive a nominal monthly or annual stipend or fee without losing volunteer status.

Understanding the limits on compensating non-employee firefighters is crucial because paying an on-call firefighter like an employee could convert him or her to “employee status,” which would trigger additional legal requirements like overtime compensation and minimum wage. For example, in a case from Michigan, decided by the Federal Court of Appeals, Sixth Circuit, so-called “volunteer” firefighters who were paid $15.00 per hour when they responded to calls were regarded as “employees” under the FLSA because this hourly pay was more than a nominal fee for this type of work. Mendel v. Gibraltar, 727 F.3rd 565 (6th Cir. 2013). The court, in reaching its decision, applied the following standard:

If the hourly wages are compensation, then the firefighters are employees under the FLSA. Conversely, if the wages are merely a nominal fee, then the firefighters are volunteers expressly excluded from the FLSA’s definition of employee. Mendel v. City of Gibraltar, 727 F.3d 565, 570 (6th Cir. 2013).

The court also noted that the federal regulations advise that, to determine whether an individual loses volunteer status due to the type and amount of payment provided, we must examine “the total amount of payments made (expenses, benefits, fees) in the context of the economic realities of the particular situation.” Id. at 570-71; 29 C.F.R. § 553.106(f). In determining whether a fee is nominal, the United States Department of Labor often uses the so-called “20% rule.” Under this rule, a fee is nominal as long as it does not exceed 20 percent of the amount that otherwise would be required to hire a permanent employee for the same services. See Wage and Hour Opinion Letter, FLSA2008-15 (December 18, 2008). The Mendel decision also reminds us that simply calling someone a “volunteer” does not automatically make them one.

The New Hampshire Supreme Court has not yet addressed this issue, but it is reasonable to conclude, based on the federal and state law, as well as this advisory case from the Sixth Circuit, that New Hampshire firefighters may be paid on a per call or stipend basis, without transforming them into employees, as long as the amount is nominal, is not tied to productivity (i.e. compensation or pay based on “hours worked”), and takes into account the factors set out in §553.106(e), cited above.           

The “7(k) Exemption”: Overtime

Municipalities with career (employee) firefighters must be concerned with overtime work. Under the FLSA, employees are designated as either exempt or non-exempt. As a general proposition, employees designated as “exempt”—falling into the “executive,” “administrative,” or “professional” category—are exempt from overtime requirements, while non-exempt employees are entitled to overtime compensation for hours worked in excess of 40 per week. Firefighters, as well as police officers and similar employees, are generally not “executive,” “administrative,” or “professional” employees, even if they supervise coworkers, because “their primary duty is not management of the enterprise.” 29 C.F.R. §541.3(b). Therefore, career firefighters are generally non-exempt and entitled to overtime compensation, unless they head a department or division and qualify for the executive exemption.

However, in recognition of the special scheduling challenges and budgetary pressures that burden virtually all municipal employers, FLSA rules permit public agencies to use a work period longer than one week and to pay public safety employees, including firefighters, at non-overtime rates for a specified number of hours above 40 during that period—the so-called 7(k) exemption. 29 U.S.C. §207(k). Employees engaged in fire protection or law enforcement may be paid overtime on a “work period” basis. A “work period” may be from seven consecutive days to 28 consecutive days long. For example, fire protection personnel are due overtime under such a plan after 212 hours worked during a 28-day work period, while law enforcement personnel are due overtime after 171 hours worked in a 28-day period. This calculation is prorated for work periods of more than seven and less than 28 days.

Furthermore, under certain prescribed conditions, a State or local government agency may give compensatory time, at a rate of not less than one and one-half hours for each overtime hour worked, in lieu of cash overtime compensation. Employees engaged in police and fire protection work may accrue up to 480 hours of compensatory time. An employee must be permitted to use compensatory time on the date requested unless doing so would “unduly disrupt” the operations of the agency. At the time of termination an employee must be paid the higher of (1) his or her final regular rate of pay or (2) the average regular rate during his or her last three years of employment for any compensatory time remaining “on the books” when termination occurs. For more information on state and local governments under the FLSA, see Fact Sheet #7.

Finally, also note that, under the FLSA, 29 U.S.C.A. § 213(b)(20), the overtime requirements do not apply to certain fire departments at all, specifically:

any employee of a public agency who in any workweek is employed in fire protection activities or any employee of a public agency who in any workweek is employed in law enforcement activities (including security personnel in correctional institutions), if the public agency employs during the workweek less than 5 employees in fire protection or law enforcement activities, as the case may be . . . .

Margaret M.L. Byrnes is Staff Attorney with the New Hampshire Municipal Association. She may be contacted at 800.852.3358 ext. 3408 or at legalinquiries@nhmunicipal.org.

Fire chiefs have authority and responsibility in a variety of areas, including:

Control of firefighters, officers, and equipment, RSA 154:2, I

Enforcing local and state laws and rules related to hazardous and combustible materials, fire exits, safety measures, RSA 154:2, II(a)

Enforcing the state fire code, RSA 154:2, II(b)

Inspecting hazardous buildings, RSA 154:2, III

Seeing to training and preparation of firefighters, RSA 154:4

Ensuring that all fire apparatus is in proper working order and that all water sources are kept in order within the available funds, RSA 154:6

Controlling and directing activities at a fire, service call or other emergency, RSA 154:7, :7-a, and :7-b

Directing all apparatus, persons, and proceedings relating to any fire or other emergency, RSA 154:8

Inspecting school buildings, RSA 153:14, II(b)

Deeming buildings hazardous and giving notice of required repairs, RSA 154:20 - :21

Ordering buildings that pose a “a clear and imminent danger” to be vacated, RSA 154:21-a