Recently, the 6th Circuit held that volunteer firefighters who receive hourly compensation of $15 are employees for purposes of the Fair Labor Standards Act (FLSA) and Family Medical Leave Act (FLMA). The holding arose through a FMLA suit brought by Paul Mendel, a former police dispatcher, against the City of Gibraltar, Michigan (Paul Mendel v. City of Gibraltar).
The City claimed that it was exempt from the FMLA because it only had 41 employees, 9 short of the FMLA’s requisite 50. However, the City had 25 to 30 “volunteer” firefighters who were compensated $15 per hours for responding to emergencies. Mendel argued that when you add the volunteer firefighters, the City had more than the 50 employees required and that the case should go forward.
Generally, the question before the court was what differentiates employees from volunteers. Specifically, were the $15 per hour wages paid to the firefighters “compensation” or merely “nominal fees”? If the hourly wages are compensation, the firefighters are employees under the FLSA.
Section 553.101(a) defines “volunteer” as “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.” Section 553.106 further recognizes that “volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their services without losing their status as volunteers.” Additionally, “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 court determined that the firefighters are paid a regular wage for whatever time they choose to spend responding to calls. The firefighters do not receive a nominal amount on a ‘per call’ or similar basis. Rather, they render services with the promise, expectation, and receipt of substantial compensation. Furthermore, the definition of employee for the FMLA and FLSA are nearly identical – so if someone is an employee for one her/she is an employee for the other.
The implications of this decision, at least as it pertains to firefighters, is that once volunteer firefighters are classified as employees, they must be compensated for all hours worked, provided workers compensation and, the dagger, the right to organize.
This article was authored by Law Clerk Roger Leshinsky. Please contact Demorest Law Firm if you have questions.
