There is a common scenario in firefighting which has been accepted and used for a long time, but which likely is a clear violation of applicable federal wage law: the local fire ‘District’ allows individuals to work for a very small ‘stipend’ or pay rate as ‘Resident Firefighters’ or ‘Reserve Firefighters’ (or under similar Titles) alongside full-time, paid , firefighters, under the idea that such individuals get their necessary ‘training hours’ and build their resumes on the way to starting careers as firefighters. Many Districts call these positions ‘trainees’ or ‘volunteers’ – – and while such work may result in some of these ‘trainees’ going on to obtain jobs as full-time firefighters, there is a problem with this type of training program: it is against the law, especially when the ‘trainee’ is assigned to and required to work 24 hour shifts at assigned stations.
In California many of the local Districts using this training system contract with Cal Fire for the full-time, paid firefighters who train the ‘volunteers’, so the District believes there is no problem with such training. After all, if the state is O.K. with such training, how could it violate the law, right? Wrong. Any individual who is required to work a 24 hour shift at a station, regardless of how busy the station is, likely is an “employee” of the District, not a ‘volunteer’. In turn, as an employee, the individual is guaranteed both the minimum wage rate of pay, and overtime pay as applicable under the Fair Labor Standards Act (FLSA), which is the applicable federal wage law.
Why is such ‘trainee’ an employee, and not a ‘volunteer’? Because one or both of two factors under the FLSA prohibit treating such ‘trainees’ as volunteers. First, no ‘volunteer’ may receive more than a ‘nominal fee’ under the FLSA, which is defined as no more than twenty percent (20%) of what a full-time firefighter in the same geographical location makes for the same amount of work. So if you break the full-time firefighter’s pay down to an hourly rate, and compare to the pay received by the ‘trainee’, the ‘trainee’ (the alleged ‘volunteer’) cannot receive more that 20% of what the full-time firefighter is paid, on an hourly basis.
Second, and more important for the ‘trainee’/’volunteer’ who is required to work 24 hour shifts, any alleged ‘volunteer’ status is void whenever the District exercises too much ‘control’ over the ‘trainee.’ Clearly being required to work at an assigned station for 24 hour shifts constitutes such control, and means the ‘trainee’ is really an “employee” of the District. Published Court decisions have established this rule.
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), the ‘trainee’ who is required to work 24 hour shifts for a local District does not meet the legal ‘test’ for volunteers, as summarized above.
Lastly, for required 24 hour shifts, the monetary damages at issue may be more than most think. That is because even if overtime hours are not worked (which under the FLSA are the actual hours worked above 212 hours in a 28 day period), minimum wage requirements apply to all the assigned hours at a station. Since the federal minimum wage rate is $ 7.25/hour, any amount received which is less than this rate violates the FLSA, for which the underpaid wages are due, plus liquidated damages as a penalty, and interest.
IF YOU HAVE WORKED IN SUCH ‘Firefighter in Training’ scenario in the past three years and you wish to have your wage claims evaluated at no cost, CONTACT Gary Goyette at (916) 851-1900 or email him at goyetteg@goyette-assoc.com. You may have more damages at issue than you think.
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