Combination Fire Departments and the FLSA

Today’s FLSA Question: I just got hired as one of two paid firefighters who work weekdays for a volunteer fire department. My partner and I are the only employees. I have been a volunteer here since high school. Part of accepting the position required me to stop volunteering as a firefighter. I can still respond on major calls, but I am required to submit overtime slips for that time. I think that I should be able to continue to volunteer, but the department rules are very clear. Once you are classified as paid personnel, you can no longer serve as a volunteer. My department has two volunteers who work for the city’s public works department, and they can still volunteer. What is the difference?

Unfortunately, under the FLSA you cannot be employed as a firefighter during the daytime and still remain a volunteer after hours. There could be other options available to minimize the effect of responding to fire calls after hours. There may not be an FLSA requirement to pay overtime for those hours. However, attempting to maintain both employee and volunteer status for the same agency will likely result in an FLSA violation. To add insult to injury, other city workers (non-firefighters) can serve as volunteers for the city’s fire department. The reason for this important distinction lies in the evolution of the FLSA.

The FLSA was written during the Great Depression in an attempt to reinvigorate the faltering economy. One of the concerns at this time was that employers could theoretically require workers to volunteer for part of the day while working as employees for another part of the day. This possibility would undermine the entire purpose of the FLSA. As a result the FLSA generally prohibits employees serving as volunteers for their employers.

The FLSA initially did not apply to state and local governments. Therefore, individuals volunteering for fire departments or other public agencies were immune from these concerns. However, in 1985, the FLSA was made applicable to state and local governments. In response, Congress and the Department of Labor (DOL) made several modifications to the FLSA and regulations, designed to help local governments deal with federally mandated overtime. Some of these modifications were designed to maintain the purpose of the FLSA, while still allowing individuals the freedom to volunteer for civic and humanitarian reasons.

One of these modifications can be found at 29 USC §203(e)(4)(a), which allows individuals to volunteer for public agencies, provided:

• They receive no compensation, or are paid only a nominal fee or receive reasonable benefits; and
• The volunteer services are not the “same type of services which the individual is employed to perform for such public agency.”

Here, since the services that you provide for the city are the same for which you wish to volunteer, you are prohibited from volunteering. As crazy as it seems, you could most likely volunteer for the public works, school, or police departments without a problem. However, you cannot volunteer for the fire department. This is why your other city worker counterparts who are not firefighters can continue to volunteer.