Employment-Sixth Circuit Rules That Purportedly Volunteer Firefighters Are “Employees” For Purposes Of The FLSA And FMLA

In Mendel v. City of Gibraltar, No. 12-1231 (6th Cir. 2013), the issue arose as to whether purportedly volunteer firefighters, who receive a substantial hourly wage for responding to calls whenever they choose to do so, are “employees” or “volunteers” for purposes of the Fair Labor Standards Act (“FLSA”) and Family Medical Leave Act (“FMLA”). As employees, they could bring suit under the FLSA and FMLA, and they are entitled to rights and protections under those acts, while as volunteers they could not and are not.

The facts are as follows. The volunteer firefighters of the City of Gibraltar (the “City”) must complete training on their own time without compensation. While they are not required to respond to any emergency call, they are paid $15 per hour for the time they do spend responding to a call or maintaining equipment. They do not work set shifts or staff a fire station; they maintain other employment and have no consistent schedule working as volunteer firefighters. The firefighters generally receive a Form-1099 MISC from the City. They do not receive health insurance, sick or vacation time, social security benefits, or premium pay. The City does have an employment application for the firefighters, and it apparently keeps a personnel file for each firefighter. A volunteer firefighter may be promoted or discharged.

In analyzing the case, the Sixth Circuit Court of Appeals (the “Court”) said that these firefighters are suffered or permitted to work, and are paid substantial wages for performing work as permitted by the City. Further, the FLSA specifically exempts from the term “employee” an individual who, among other requirements, works for a public agency and receives no “compensation”. Here, the firefighters receive substantial pay- the hourly rates they receive are similar to the hourly rates paid to full-time employed firefighters in some of the neighboring areas- and therefore they receive “compensation” within the meaning of the exemption, so that the exemption does not apply to them. Thus, the firefighters are employees for FLSA and FMLA purposes.