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A very informative article recently published in the New York Times and summarizing the variety of issues surrounding the decline in the number of ‘volunteer firefighters’ can be accessed HERE.  One critical issue is only touched on in the article, however, and that is whether ‘volunteer’ firefighters, under applicable law, are actually ‘employees’.
The article asks the question “Should volunteer firefighters be defined as public employees and afforded all the according benefits and protections?” and then comments “Some states like California,  . . .  have said yes, granting them things like taxpayer-subsidized pensions, college tuition assistance and life insurance benefits.”
This statement; however, is not true.  The state may have offered some of the benefits to volunteer firefighters which normally apply to employees, but no statute has been passed formally defining firefighters as ‘employees’.  Rather it is typically up to each local fire protection District to decide if the ‘volunteer firefighters’ are truly volunteers, or are employees.
Most Districts, along with the state (Cal-Fire), have not taken the time, however, to have qualified legal counsel assess whether their ‘volunteers’ meet the legal test for ‘volunteering’, and instead just assume that ‘Volunteer Firefighters’ are correctly classified.  While there can be, are still are true volunteer firefighting companies in rural areas throughout California (ie, the small company with donated trucks and equipment, and with true volunteers who are not paid anything, and who can donate their time if an when they choose), many local Districts have alleged volunteer firefighters who do not meet the test for volunteering under the law, and who are actually employees. This is because the legal ‘test’ for volunteers has two key elements which many local District volunteer firefighters do not satisfy.
First, to qualify as a volunteer firefighter an individual cannot receive compensation for their service, other than a ‘nominal fee’.  The ‘nominal fee’ limitation means a volunteer firefighter cannot be paid more than twenty percent (20%) of what a full-time firefighter in the same geographical location makes for the same amount of work. How does this work?  Basically take the average salary for a full-time firefighter in the same area, add the value of their benefits, and reduce that to an hourly rate of pay (divide by the number of hours worked per year for the salary/benefits).  Then take any stipends or reimbursements or even hourly pay received by the alleged ‘Volunteer’ firefighter, reduce that to an hourly rate of pay, and that rate cannot be more that 20% of the hourly rate just calculated for the full time firefighter. This ‘nominal fee’ limitation is the primary monetary limitation for individuals who meet the test for true ‘volunteers’.  Of course there are other factors, such as any amount of pay to alleged ‘volunteers’ which is treated as wages and documented on IRS W-2 forms arguably is not consistent with treating someone as a ‘volunteer’.  Then there is also a basic prohibition against allowing anyone who is a full-time paid firefighter employee from ‘donating’ their time as a ‘volunteer’ to the same public entity (you can’t work for and volunteer for the same entity).
Second, published case law has established that when too much ‘control’ is asserted by the local District, or by the entity acting as the potential employer, over an alleged volunteer firefighter, that individual in all likelihood does not meet the legal test for a ‘volunteer.’  The most common violation of excessive control is when alleged ‘volunteer’ firefighters are required to answer pages or call for service, and have no choice in whether or not they respond.  Other control which is inherent in fire protection services, however, may not meet the legal ‘test’ for volunteers.  For example if a ‘volunteer’ responds to a call, and is under the control of an ‘Incident Commander’, and is not allowed to leave the incident until released by the Commander, such ‘control’ – – while normal and perhaps even required for fire protection services – – is antithetical to the idea of ‘volunteering’, and may mean that the alleged ‘volunteer firefighter’ is actually a traditional “employee”.  This result has consequences, since every “employee” must be provided minimum wage pay and overtime pay when triggered under the federal Fair Labor Standards Act (FLSA), as well as other benefits required by law to be provided by employers.
So if you are an ‘alleged’ volunteer firefighter, or are a District with such individuals, and are unsure if the legal test for volunteering is met, CONTACT Goyette & Associates for a free evaluation of this issue.
 

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