Volunteer Firefighter Incentive Plan, Same Type of Services, and the FLSA

Today’s FLSA Question: I am a volunteer fire chief for a fully volunteer fire department. Like many volunteer fire departments, we struggle getting trucks on the road during weekday hours. However, we have several volunteer firefighters that are employed by the town in other departments in addition to serving as volunteer firefighters. Recently, a town official proposed allowing these town employees/volunteer firefighters to respond to incidents during the hours they are working for the town in other capacities. For example, one of our volunteer firefighters also works for the public works department. Under the proposal, he would be allowed to respond to calls during his normal workday without having to “clock-out” or use any leave time. It was even proposed that we provide these workers with a small stipend in addition to their hourly pay rates to incentivize more town workers to also serve as volunteer firefighters. We already have several town workers interested. However, I have some serious concerns about this plan. It sounds good at first, in fact, it could help solve our daytime response problems, but does the FLSA allow this sort of employee/volunteer arrangement?

Answer: Based on the facts you provided; the time spent by town workers “volunteering” for the fire department both during their normal work hours and after-hours for trainings and other activities would most likely be considered compensable worktime. Additionally, the hours worked at both the employee’s full-time job and the fire department would likely need to be combined for FLSA overtime purposes.

The FLSA and Department of Labor (DOL) regulations allow public agency employees to volunteer for their employers provided that two basic criteria are met. The first requirement is that the individual cannot perform the “same type of service” as both an employee and a volunteer. The second requirement is that the individual is volunteering for civic, charitable, or humanitarian reasons and should not have any expectation of receiving compensation. Here, you fail to meet either requirement.

Allowing town employees [from other town departments] the ability to “volunteer” their services as firefighters during their normal workday [while still being paid by the town] opens a proverbial “can of worms” that I do not think local officials have considered. This is best explained through an example:

Employee X works for the town’s water department and volunteers as a town firefighter when not working for the water department. Employee X’s job description and everyday activities for the water department consist of running heavy machinery, maintaining the town’s water supply system, and responding to calls for service related to the town’s water distribution system. Employee X is clearly not performing the same type of services for the town as both a water department employee and as a volunteer firefighter. The FLSA allows for this type of arrangement. Now, let’s change the facts a little. Employee X starts dropping whatever activity he is performing for the water department to respond to emergency calls for the fire department. Employee X responds to several emergency calls per week. During the times of the emergency responses, he receives his normal wages from the town’s water department. Is X still not performing the same type of services for the town as a water department employee and as a volunteer firefighter? From the outside looking in, it certainly looks like serving as a firefighter is part of X’s responsibilities as a water department employee.

The next big issue that I can identify with your question relates to the volunteer firefighters’ expectation of compensation. Volunteers can receive nominal fees and benefits for serving as a volunteer, while still maintaining “volunteer” status under the FLSA. However, paying volunteers on an hourly basis generally negates any volunteer status. In other words, hourly compensation equals an employee and not a volunteer, regardless of the amount of that compensation. Here, town officials are proposing paying town workers hourly to serve as volunteer firefighters. A likely violation of the FLSA. Additionally, the proposal includes an increase in the employee’s hourly rate if the employee is willing to serve as a both a town worker and a volunteer firefighter. Is the volunteer firefighter volunteering without the expectation of compensation given the facts as presented?

The premise of incentivizing town workers to also serve as volunteers in the communities where they live and work is a good one. It just needs to be done in a manner that ensures compliance with both the FLSA and DOL regulations. There can be safeguards employed [pun intended] to prevent any cross-over between employee and volunteer. It is imperative that town officials get it right from the outset to prevent unintended consequences from what typically starts out as a well-intentioned program. By the way, this was a great question.

If you have questions like this, please consider joining us at one of the FLSA for Fire Departments live webinars. The next one is scheduled for February 15-18, 2022. Click here, for more information.

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