FLSA2002-1 — Career firefighter/paramedic employees being volunteers

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

June 5, 2002
FLSA2002-1
Dear
Name*,

I am writing in response to your letters of December 21, 2001, and January 14, 2002, in which you
requested an opinion regarding whether a career firefighter/paramedic employee could volunteer to
provide similar services to the local volunteer fire departments, which are part of the
Name* County
integrated fire service, without having the volunteer time count as compensable hours worked under the
Fair Labor Standards Act (FLSA). We previously had addressed this issue in a November 27, 2001,
opinion letter to
Name*. However, you were concerned that we did not have all the relevant facts
available to us when we first considered this question. Therefore, you included in your letters information
describing the integrated nature of the career and volunteer branches of the fire and rescue service in
Name* County. You also provided us with the Name* Regulation adopted in 2001 and the Name*
Regulation adopted in 2002. We also received a letter on the same issue from
Name*, counsel to the
Name*, which included a lengthy description of the delivery of fire and rescue services in Name*
County. That letter included additional materials, including a copy of the County Code
Name* pertinent
to the Fire and Rescue Service, and your August 12, 1999, legal memorandum to the
Name* concluding
that the
Name* County situation differed from that which the court addressed in Benshoff v. Virginia
Beach, 180 F.3d 136 (4
th
Cir. 1999). We also received a joint letter dated February 25, 2002, from
Name*, and Name*, addressing this issue.

In addition to receiving these written materials, we had a meeting with you and a number of other
individuals on April 23, 2002. You brought with you a number of officials from the Fire and Rescue
Service, as well as two representatives from the
Name* Volunteer Fire Department and a career
firefighter from the union. We appreciate the time that all of those individuals spent with us to ensure that
we had a thorough understanding of how the
Name* County Fire and Rescue Service is organized, and
how it provides services in an integrated fashion involving both career and volunteer firefighters/
paramedics. After that meeting, we received additional information in follow-up letters from you dated May
2, 2002, from the
Name*, dated May 15, 2002, and from the Name* dated May 22, 2002.

As we stated in our November 27, 2001, opinion letter, the decision of the court in Benshoff
is binding in
Name* County. As that court recognized, under the FLSA, a public agency employee may not volunteer
to provide "services for a public agency" that are "the same type of services which the individual is
employed to perform for such public agency." 29 U.S.C. § 203(e)(4)(A). We set out in greater detail in our
November 2001 letter the facts pertinent to that court's analysis of whether career firefighters were
performing volunteer services for
the City of Virginia Beach when they volunteered as paramedics to the
private rescue squads located in the City. In summary, the Virginia Beach Department of Emergency
Medical Services (DEMS) coordinated responses by the fire department and the volunteer rescue squad
to emergencies; the DEMS established all the medical policies for patient care, medical training
standards, and medical procedures and protocols that governed both career firefighters and volunteer
rescue squad members; the City certified the squads' emergency medical technicians to practice within
the City, ensuring that they met required training and service requirements, and the City could revoke
their certificates; the City did centralized scheduling of rescue squad members, based upon shifts the
volunteers were willing to work; the City selected volunteer squad managers to operate as liaisons
between the squads and the DEMS and to establish a hierarchy for control during emergency responses;
the City provided financial assistance to the rescue squads; and the City provided the volunteers with
workers’ compensation and death benefits. Id
. at 141-44.

The Benshoff
court then evaluated whether the City’s control and supervision over the provision of
services by the rescue squads “is sufficient to render plaintiffs’ volunteer services ‘employment’ which is
‘controlled or required’ by the City for purposes of the FLSA.” 180 F.3d at 142. The court concluded that
the fact that the squads and their members were subject to general regulation and licensing and
certification requirements did not “change the fact that the rescue squads are private organizations,
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

governed by their own by-laws and policies.” Id. at 143. The squads had independent authority to accept
or reject candidates for membership in the squad. The squads could impose minimum duty requirements
on members that exceeded the minimum requirement imposed by DEMS for licensure, and they could
impose additional training requirements. The squads could require the members’ attendance at
mandatory squad meetings or at fundraising events in order for them to maintain continued membership
in the squad. Moreover, the squads could impose disciplinary action upon members, including dismissal
from the squads, whether or not DEMS had taken any such action. Id
. at 143-45.

The court in Benshoff
recognized that the City’s involvement with the provision of emergency medical
services was not insubstantial. However, based upon all the facts and circumstances, the court held that
the creation of DEMS did not result in “either the evisceration of the independent nature of the rescue
squads, some of which have existed since the 1940s, or in a de facto employer-employee relationship
between the City and those individuals who chose to volunteer with rescue squads.” 180 F.3d at 142. The
court thus concluded that when a Virginia Beach firefighter provided volunteer services to an independent
non-profit rescue squad, there was no employment relationship with the City with regard to that activity.
The court left open the possibility that the answer might differ in another context, particularly if there were
“a ‘sham’ private volunteer corporation placed between an employee and his employer to avoid the
compensation provisions of the Act.” Id
. at 149.

In our November 2001 letter, we applied the Benshoff
analysis to Name* County. We noted that there
are a number of factual differences between the Benshoff
case and the situation in Name* County, the
most significant being that in
Name* County the volunteers provide exactly the same services (both fire
and emergency medical services) as do the career employees. In contrast, in Benshoff
the City was not
licensed by the State to provide the advanced life support services provided by the rescue squads, and
the rescue squad volunteers did no firefighting.

However, we concluded that the primary facts that led the court in Benshoff
to conclude that the FLSA did
not require compensation for volunteer time were similar in
Name* County. The non-profit volunteer fire
and rescue corporations have a long history of independently providing services in
Name* County. Each
is separately incorporated under state law, with its own by laws and boards of directors. The volunteer
corporations determine how a person becomes a volunteer firefighter, and their service is governed by
the corporation’s by laws, which can and do impose requirements not imposed by the County. The
volunteer corporations control how members are selected for promotion within the volunteer ranks. At the
scene of an emergency, to ensure the safe and efficient provision of services, the highest ranking officer
(whether career or volunteer) directs the operations of all units that respond. However, at all other times,
the chain of command is separate, and a career officer supervises only the career firefighters who are
present, while a volunteer officer directs the volunteers.

Based upon your request and the other requests we received, we reconsidered our 2001 opinion. We had
already taken account of most, but not all, of the materials that we now have available. Considering all the
facts and circumstances brought to our attention, we continue to believe that the
Name* County
volunteer firefighters’ situation is similar to that of the volunteer rescue squad members in Benshoff
.
There is no evidence that the current structure for providing fire, rescue and emergency medical services
in
Name* County has eviscerated the independent nature of the long-standing, separately incorporated,
private fire and rescue departments. Those separate corporations exercise day-to-day control over what
positions volunteers hold, what they do, and when they do it. Although the public agency has some
control over the volunteers, that control primarily is exercised by setting minimum certification standards
and by establishing the broad guidelines and procedures under which services are provided. The court in
Benshoff
did not view the imposition of such standards and protocols as sufficient evidence of control so
as to render the volunteers employees of the public agency when performing their rescue squad services.

Therefore, in light of the Benshoff
decision, we conclude that the FLSA does not require Name* County
to pay its career firefighters if they volunteer, freely and without coercion, to provide services to the non-
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

profit fire and rescue corporations in the County. This is true whether they are providing services as a
firefighter or as an emergency medical technician.

This opinion is based exclusively upon the information provided to us. The existence of other factual
information not contained in your description might require a different conclusion than the one expressed
herein. To the extent appropriate, this letter may be used to establish a defense to liability under the
Portal-to-Portal Act, 29 U.S.C. § 259.

Sincerely,

Tammy D. McCutchen
Administrator

cc:

Note: * The actual name(s) was removed to preserve privacy.

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