11th Circuit Finds Firefighter Was a Volunteer, Not an Employee, Under the FLSA

Author: Michael Cardman, XpertHR Legal Editor

Public employers that accept the services of volunteers must take care to ensure the volunteers are not in fact employees who are entitled to the minimum wage and overtime under the Fair Labor Standards Act (FLSA).

A new federal appeals court ruling offers examples of the kind of steps public employers can take to stay on the right side of the line that separates volunteers from employees.

In Freeman v. Key Largo Volunteer Fire & Rescue Dep'T, +2012 U.S. App. LEXIS 22392 (11th Cir. 2012), a volunteer firefighter in Key Largo, Fla., sued the local fire department and emergency services district, claiming he was actually an employee who was owed the minimum wage and overtime under the FLSA.

The district court dismissed the firefighter's complaint, ruling he had no grounds for a claim because he was not actually an employee.

The 11th U.S. Circuit Court of Appeals agreed to hear his appeal and analyzed afresh whether there was any employer-employee relationship. It applied a variation of the economic reality test often used by courts to determine whether a worker is an independent contractor or an employee. Different courts consider different factors. In the Freeman case, the 11th Circuit applied a test from Villarreal v. Woodham, +113 F.3d 202, considering whether the alleged employer:

  • Had the power to hire and fire the employees;
  • Supervised and controlled employee work schedules or conditions of employment;
  • Determined the rate and method of payment; and
  • Maintained employment records.

The appeals court concluded the fire department did not qualify as an employer under this test based on the following evidence:

  • Volunteers are paid $5.00 per hour while employees are paid between $16.83 and $20.04 per hour;
  • The fire department needed permission from the district to hire paid employees and the district could not hire employees without a request from the fire department, but the firefighter never alleged that the department requested he be hired as a paid employee or that the district gave the fire department permission to hire him as a paid employee;
  • The days and shifts the firefighter worked varied depending on his availability, and he typically worked only two shifts per week;
  • The district did not supervise the firefighter and it did not mandate standard operating guidelines for the volunteer firefighters;
  • The firefighter's individual rate of pay was not set by the fire department or by the district; and
  • Besides W-2 forms, the fire department did not provide any employment records to the firefighter.

    • No single factor is the last word when it comes to the proper classification of volunteers under the FLSA. But adopting similar practices certainly won't hurt for other public employers that wish to avoid establishing an employer-employee relationship with their volunteers.