An unusual battle between an independent volunteer fire company and a rural New England town has resulted in the fire company filing a lawsuit against the town. In a March 31 lawsuit—filed in New London Superior Court—the Gardner Lake Volunteer Fire Company alleges the Town of Salem, CT is unlawfully withholding almost $28,000 earmarked for volunteer firefighter stipends from the fire company. Also, according to Gardner Lake’s Board of Directors, a town selectman’s refusal to cooperate over a “minor FLSA issue” is compromising the fire company’s ability to provide emergency services to the town. Here are the details.
Salem, CT, a small New England town with less than 5,000 residents, is home to two independent volunteer fire companies that provide fire and first responder services under contract to the town. Additionally, the town employs two full-time paid “career personnel” assigned to “basic and first responder EMS” duties during weekday hours. One town employee is assigned to each of the volunteer stations during these daytime hours. However, both “career personnel” also serve as volunteer firefighters for Gardner Lake.
The FLSA contains a limited exception that allows public agency employees volunteer for their employers provided certain criteria is met. Key to these requirements is that the employee not provide the same type of services as both an employee and volunteer. For example, a paid firefighter could volunteer for his or her employer as a high school basketball or football coach, but not as a volunteer firefighter. Similarly, a town public works employee could volunteer for the town’s fire department. However in this instance, is the volunteer fire company and the town the same “employer” for FLSA purposes? That question appears to be at the root of the dispute between the fire company and the town.
Gardner Lake maintains it has complete independence from the Town of Salem. The volunteer fire company is a non-profit corporation founded in 1956. It has its own board of directors, officers, and bylaws that are independent of the town. According to Gardner Lake’s complaint, a 2007 legal opinion based on these factors confirmed that it was a separate independent entity and not part of the town. Based on this interpretation, the town’s career personnel could volunteer for the fire company.
However, fast forward to last May. A dispute between Gardner Lake’s Fire Chief, James Savalle—who is also one of the town’s “career personnel” assigned to work at the fire company during weekday hours—and Town Selectman Kevin Lyden began following a “new interpretation” of the FLSA. Selectman Lyden solicited a new opinion from a local labor attorney that differed from previous opinions. Lyden threatened to terminate Savalle’s employment with the town if he continued to volunteer as Gardner Lake’s chief.
In response, Gardner Lake officials met with town officials to discuss Selectman Lyden’s FLSA concerns. Gardner Lake provided town officials with case law and opinions from the U.S. Department of Labor in support of its assertion that the fire company is a separate independent entity and not part of the town. However, during the course of these discussions, a small FLSA issue was discovered. The issue involved the way volunteer firefighter stipends are paid. The town distributes the stipends directly to members of the volunteer fire company. This raised a potential FLSA issue. Officials were concerned that this factor could result in the town and the fire company being considered “joint employers” under the FLSA.
In an effort to resolve what could be a potential FLSA issue for the town, Gardner Lake suggested modifying the long-standing services agreement between the two parties. They requested the town stop paying the volunteers’ stipends directly to fire company members. In lieu of this long-standing practice, Gardner Lake officials proposed that the town transfer those funds to the fire company on a monthly basis. In return, the fire company would pay stipends directly to volunteer firefighters. This process would not cost the town any additional money and would in theory insulate it from a possible, albeit a remote FLSA claim. However according to Gardner Lake, Selectman Lyden refuses to participate in the process and re-open the services agreement. As a result, the fire company has filed a lawsuit seeking to compel the town to fund the volunteer firefighter stipends.
We will keep a close eye on this one. My gut tells me this will not be the last time we will hear about this debate.