City hall makes it tough for city employee to volunteer as a firefighter

Today’s FLSA Question: I am an administrative assistant for a small municipal fire department. My job is primarily related to scheduling inspections, handling public information requests, ordering supplies, and handling payroll for our full-time and part-time paid staff. Our organization has a mixture of full-time, part-time and volunteer firefighters. The volunteers do not receive any money for serving as volunteers, but they receive a property tax break and some other small perks throughout the year. I recently applied to be a volunteer. However, city hall has rejected my application because I “work” for the fire department. They cite the FLSA as the reason why I cannot be a volunteer and an employee for the same organization. I understand that our paid firefighters cannot also serve as volunteers, but what about administrative personnel? Does the FLSA prohibit fire department administrative personnel from serving as volunteer firefighters?

Answer: As a general rule, employees cannot volunteer for their employers. However, both Congress and the Department of Labor (DOL) carved out several unique exceptions to the general rule related to public agency volunteers. Employees of public agencies can volunteer for their employers if certain criteria are met. First and foremost, employees can only volunteer for their employers for civic, charitable, or humanitarian reasons. Second, the employer must not coerce or place undue pressure on the employee to volunteer his or her services. Third, and most relevant to this discussion, the employee cannot perform the “same type of services” as both a volunteer and an employee.

Historically, courts and the DOL look at all of the facts and circumstances surrounding a particular situation in order to determine whether an employee is performing the “same types of services” as both an employee and a volunteer. Department of Labor regulations found at 29 CFR §553.103 entitled ““Same types of services” defined” provides further guidance. Here is the text from that regulation:

(a) The 1985 Amendments provide that employees may volunteer hours of service to their public employer or agency provided “such services are not the same type of services which the individual is employed to perform for such public agency.” Employees may volunteer their services in one capacity or another without contemplation of pay for services rendered. The phrase “same type of services” means similar or identical services. In general, the Administrator will consider, but not as the only criteria, the duties and other factors contained in the definitions of the 3-digit categories of occupations in the Dictionary of Occupational Titles in determining whether the volunteer activities constitute the “same type of services” as the employment activities. Equally important in such a determination will be the consideration of all the facts and circumstances in a particular case, including whether the volunteer service is closely related to the actual duties performed by or responsibilities assigned to the employee.

(b) An example of an individual performing services which constitute the “same type of services” is a nurse employed by a State hospital who proposes to volunteer to perform nursing services at a State-operated health clinic which does not qualify as a separate public agency as discussed in § 553.102. Similarly, a firefighter cannot volunteer as a firefighter for the same public agency.

(c) Examples of volunteer services which do not constitute the “same type of services” include: A city police officer who volunteers as a part-time referee in a basketball league sponsored by the city; an employee of the city parks department who serves as a volunteer city firefighter; and an office employee of a city hospital or other health care institution who volunteers to spend time with a disabled or elderly person in the same institution during off duty hours as an act of charity.

So, as you can read above, the FLSA should not present a hindrance to your ability to volunteer as a firefighter for your fire department. However, employers are wise to approach these types of scenarios cautiously. I will offer the following example as support for this notion:

Volunteer Fire Department Alpha employs several full-time administrative/support staff Monday thru Friday during daytime hours. These employees are also active volunteers for the organization on nights and weekends. But, when a fire or EMS call comes in during weekday hours, the administrative/support employees will jump on fire apparatus and respond during their work hours. Now, given these circumstances, does merely labeling these employees as administrative/support employees allow them to “volunteer” for their organization as firefighters without getting paid? Does responding as a volunteer firefighter during their administrative/support work hours change the type of services that they perform during that time? And most importantly, what implications will this have on their volunteer hours?

All very good questions… In fact, these are the types of questions often asked at our FLSA for Fire Departments seminars. Due to the current COVID-19 pandemic we had to reschedule our May offering into the fall. Our updated 2020 schedule is now available online and includes new details for the rescheduled Kansas City class. Please consider joining us.