Volunteer Firefighters are “Employees” for FMLA Coverage

Darrell VanDeusen
Darrell VanDeusen

In a real head scratcher, the Sixth Circuit has held 2-1 that volunteer firefighters are “employees” who are counted for, and therefore get protection under, the Family and Medical Leave Act.  Mendel v. City of Gibraltar, 2013 U.S. App. LEXIS 16922 (August 15, 2013).  The majority made this decision based on the “substantial wages” paid for the services performed.

The City of Gibraltar, Michigan has approximately 25 volunteer firefighters in addition to its employees.  Volunteer firefighters can choose whether to respond to a call.  When a volunteer does show up, however, he or she gets $15/hour for time spent responding to the call or maintaining equipment.

After Mendel was fired as a police dispatcher by the City, he filed a lawsuit alleging violation of the FMLA. The City responded that it only had 41 employees, not including its volunteer firefighters, and that Mendel  therefore was not eligible for FMLA leave.  The district court agreed and granted summary judgment in the City’s favor.

On appeal the Sixth Circuit looked to Section 203 of the Fair Labor Standards Act, on which the FMLA relies for its definition of employee.  The Supreme Court has adopted the “economic realities” test when making employee determinations in FLSA jurisprudence, and the appellate court therefore looks at such things on a case by case basis.

Here, the Sixth Circuit majority decided that receiving $15/hour was a substantial wage, and not a “nominal fee” for their efforts (which would have placed the volunteer firefighters in the specific “volunteer exception” of Section 203(e)).   Moreover, while the district court found that the City lacked control over the volunteers (recall that a volunteer fire fighter can decide whether or not to respond to a call), the majority found the lack of “control” was not all that important.  As a result, the volunteer firefighters count toward the 50 employees at a worksite required to make employees eligible for coverage, and Mendel’s case was returned to the district court for further proceedings.

In dissent, Judge Kethledge took issue with the majority’s claim that $15/hour was a substantial wage for a firefighter, noting that the wage “might not be a nominal fee for a fast-food worker, but for a surgeon who provides her services to some charitable organization, it surely would be.”  Moreover, the volunteers were not paid for required training, which if added to the count dropped the hourly rate to a little over $8.50 – something that looks far more nominal.

That Mendel gets to have his FMLA case heard is secondary to the potential Pandora’s box opened by this decision.  If volunteer firefighters are employees under the FLSA, there are a lot of benefits beyond FMLA coverage to which they are probably entitled.

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