A Capehart Scatchard Blog

Volunteer Firefighters May Be Employees under FMLA

By on February 7, 2014 in FMLA with 0 Comments

The City of Gibraltar employed 41 employees, excluding its “volunteer” firefighters.  When it fired one of the firefighters, Paul Mendel, he sued under the FMLA. The city countered that it was not covered under the FMLA because it had less than 50 employees. There were 25-30 “volunteer firefighters” whom the City contended were not truly employees and should not be counted toward the 50 employee threshold.

The issue in the case came down to the definition of “employee” for purposes of the FMLA.  The firefighters did not receive health, sick, or vacation benefits, nor did they receive social security benefits.  They did training on their own time.  On the other hand, when the volunteer firefighters responded to any emergency call or maintained equipment, they were paid $15 per hour.

The Sixth Circuit Court of Appeals studied the Fair Labor Standards Act to obtain the definition of “employee” since the FMLA and FLSA use the same standard.  The Court observed that the United States Supreme Court previously adopted an “economic reality” test to determine whether someone was an employee for purposes of the FLSA. While the district court found that the city had no control over the firefighters, the Court of Appeals said that lack of control was not sufficient to account for the result in this case.  “Each time a firefighter responds to a call, he knows he will receive compensation at a particular hourly rate — which happens to be substantially similar to the hourly rates paid to full-time employed firefighters in some of the neighboring areas.”

The Court noted that the FLSA excludes those who receive only a nominal fee from the definition of employee, but the Court did not consider a payment of $15 per hour to be a nominal fee. Therefore the Court held in favor of employment status for the so-called City of Gibraltar volunteer firefighters.  It found that the FMLA applied to the city and to Mr. Mendel’s law suit:

Despite the fact that the Gibraltar firefighters are referred to as ‘volunteers,’ the inescapable fact nevertheless remains that they ‘work in contemplation of compensation.’  Thus, the Gibraltar firefighters are ‘employees’ and not ‘volunteers’ within the meaning of the FLSA.

There was an interesting dissent in this case in which it was argued that the city does not require a firefighter to respond to any fires and did not supervise such firefighters on the scene.  Someone could go for years without responding to a single fire.  The dissent pointed out that the volunteers really were not paid $15 per hour considering the fact that they had to complete 152 hours of training, pass an exam and then complete an additional 73 hours of training each year — all without pay.

This case can be found at Mendel v. City of Gibraltar, 727 F.3d 565 (6th Cir. 2013).


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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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