Today’s FLSA Question: I am a full-time paid firefighter in a small rural combination fire department. We have 12 full-time firefighters and another dozen active volunteers. Our department has strict rules that forbid our paid firefighters volunteering their time for the department. Recently, the department began allowing the volunteer firefighters the opportunity to pick up “per diem” shifts. The volunteers receive between $15-20 per hour depending on their qualifications for these extra shifts. Up until this new policy, the paid firefighters would work these shifts and receive overtime pay. What is the difference between a full-time firefighter volunteering [which is not allowed] versus a volunteer firefighter working as a “per diem” firefighter [which is now allowed]? Does the FLSA allow a volunteer to work as a fill-in for a paid firefighter?
Answer: Two good questions. The short answer to your first question is that there is no difference. Based on the information that you provided, both the paid firefighters and the per diem volunteer firefighters are employees under the FLSA. Therefore, both would be subject to the FLSA’s minimum wage and overtime provisions. As for your second question, the FLSA does not prohibit a volunteer filling-in for a paid employee. Provided that the volunteer does not receive compensation in exchange for their volunteer services. Once a volunteer receives any compensation, that individual is no longer a volunteer and is an employee.
Under Department of Labor (DOL) regulations, a volunteer is not considered an employee. However, in order to remain a volunteer the individual must volunteer for “civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered.” Here the “volunteer” firefighters working the per diem shifts are receiving compensation for working as firefighters. This negates their volunteer status under the FLSA.
With that stated, volunteer firefighters can be paid expenses, a nominal fee and/or receive reasonable benefits in exchange for their services as a volunteer. However, a nominal fee received by any volunteer cannot be “tied to productivity.” Numerous courts and the DOL have found any fee paid on an hourly basis is “tied to productivity” and does not qualify as a nominal fee paid to a volunteer. So even if the amount that the per diem firefighters received was considered nominal [which I do not believe $15-20 per hour is] the fact that they are paid per hour also negates the per diem firefighters volunteer status.
Based upon the above information, the “volunteer” firefighters working as hourly per diem firefighters are no longer volunteers under the FLSA.
Do you have questions about the FLSA and how it applies to both paid, volunteer, and even part-time firefighters? If yes, please join us at the upcoming FLSA for Fire Departments live webinar. The next delivery is only a few weeks away.