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MEMORANDUM
TO: Mike Tallent, Assistant Director
FROM: Sid Hemsley, Senior Law Consultant
DATE: May 10, 2006
RE: Volunteer Firemen (and other volunteers) Running for Local Office
Tennessee Tort Liability Act (TTLA): That Act, found at Tennessee Code Annotated, '29-20-101 et seq., provides that:
A regular member of a volunteer or auxiliary firefighting, police or emergency assistance organization of a governmental entity shall
be considered to be an employee of that governmental entity for the purpose of this chapter without regard to the elements set forth in subsection (a). [ Tennessee Code Annotated, '29-20-107(d)]
That provision itself clearly concedes that such volunteers are not employees except for the purposes of the TTLA. Subsection (a) requires that in order for a person to qualify as an " employee" he receive the same benefits as all other employees of the governmental entity, including retirement benefits and the eligibility to participate in insurance programs, and the same job protection system and rules, such as civil service or grievance procedures as are other persons employed by the governmental entity. Generally, volunteers are not entitled to such benefits and considerations, and are otherwise not treated as employees. They are not required to respond to calls, attend drills, or training at the penalty of discipline that can threaten their " jobs." If they fail to follow the rules pertaining to volunteers, the fire chief, police chief, or head of other kinds of volunteers simply removes them from the list of volunteers after a period. But they are not "terminated" as would be an employee for failure to perform his duty, or for other reasons.
Tennessee Workers' Compensation Law: The Workers'Compensation Law defines the term " employee" broadly:
....includes every person, including a minor, whether lawfully or unlawfully employed, the president, any vice-president, secretary, treasurer or other executive officer or corporate employer without regard to the nature of the duties of such corporate officials, in the service of an employer, as employer is defined in subdivision (12), under any contract of hire or apprenticeship, written or implied.
The same law contains a test for determining whether a person is an employee or an independent contractor [ Tennessee Code Annotated, '50-6-102(11)], but it does not separately define " volunteer." However, it does require that workers' compensation insurance carriers "shall be required to offer medical benefits coverage for paid-on-call and volunteer firefighters." [ Tennessee Code Annotated, '50-6-401(a)(1)] The language of that requirement seems to make it clear that under the Workers 'Compensation Law neither kind of firefighter is an " employee." That Law simply requires that " paid-on-call and volunteer firefighters" must be offered medical benefits by workers 'compensation insurance carriers even though they are not employees.
In Hill v. King , 663 S.W.2d 435 (Tenn. App. 1983), the question was whether a certain deputy sheriff, killed while he was helping the sheriff transport a prisoner in the sheriff 's airplane, was an employee or a volunteer. The distinction was important because if he was an employee, his survivors were limited to the compensation provided employees under the Workers 'Compensation Law; if he was a volunteer, his survivors could seek the more generous recovery provided by the Tennessee Tort Liability Act.
The Tennessee Supreme Court outlined the relationship between the deputy and the county sheriff:
.... the deceased [deputy sheriff] sustained a unique relationship with Dan King, Sheriff of Robertson County. He had been commissioned a deputy sheriff, had received a pistol and uniform, and was authorized to serve process and transport prisoners. Each employee of the sheriff was permitted to eat one meal at the jail during each tour of duty. He was paid no salary, could work as much or as little as he chose, and even when scheduled to work, he was not obligated to report for duty . He was reimbursed for fuel used and expenses incurred on official business. He did regularly report to work; and when he did, he was subject to orders exactly as other salaried officers were. [At 437]
But the deputy sheriff was a volunteer rather than an employee, held the Court, because he was "not for hire," and had not entered into "an agreement for pay." In fact, the Court went at great length to define the distinction between employees and volunteers, the latter of which were not Ahired" in a sense, which "connotes a payment of some kind" [At 440]. The Court listed a multitude of voluntary arrangements where the individual in question got no payment for his work, or got meals, expenses, and other gratuities that were not "wages ." [At 443] [Also see Garner v. Reed , 856 S.W.2d 698 (Tenn. 1993), which, citing Hill v. King , above, in great detail explains the necessity of a contract for hire in creating the employment relationship, and what the creation of the contract for hire requires.]
Although the above cases applied to the distinction between " employees" and " volunteers" for the purposes of Tennessee's Workers Compensation Law, it seems exquisitely logical that a contract for hire is a prerequisite for becoming a municipal employee in any context, including in the context of Tennessee Code Annotated, '7- 51-1501.
Status of Volunteers under the Fair Labor Standards Act
Statute and Regulations
The FLSA distinguishes between " employees" and " volunteers" for the purposes of that Act, and permits governments to provide volunteers workers' compensation, and other insurance coverage without making them employees for the purposes of that Act. Under the FLSA:
The term "employee" does not include any individual who volunteers to perform services for a public agency which is a state, a political subdivision of a state, or an interstate governmental agency, if
(I) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered.... [29 U.S.C., section 203(e)(4)(A)]
The regulations implementing the FLSA provide that:
An individual who performs hours of service for a public agency or civic, charitable, or humanitarian reasons, without promise,
expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours.... [29 C.F.R. section 553.101]
(a) Volunteers may be paid expenses, reasonable benefits, a nominal fee, or any combination thereof, for their services without losing their status as volunteers .
(b) An individual who performs hours of service as a volunteer for a public agency may receive payment for expenses without being deemed an employee for the purpose of the FLSA.....
(e) Individuals do not lose their volunteer status if they receive a nominal fee from a public agency. A nominal fee is not a substitute for compensation and must not be tied to productivity. However, this does not preclude the payment of a nominal amount on a "per call" or similar basis to firefighters..... [29 C.F.R. section 553.106] [Emphasis is mine]
With respect to the provision of workers' compensation insurance, the regulations also provide that:
(d) individuals do not lose their volunteer status if they are provided reasonable benefits by a public agency for whom they perform volunteer service. Benefits would be considered reasonable, for example, when they involve the inclusion of individual volunteers in group insurance plans (such as liability, health, life, disability, workers' compensation) or pension plans or "length of service" awards, commonly or traditionally provided to volunteers of State and local government agencies, which meet the additional test in paragraph (f) of this section. [29 C.F.R., section 553-106(d)]
Paragraph (f) says that "the total payments made (expenses, benefits, fees) in the context of the economic realities of the particular situation" will be considered in the determination of whether an individual loses his status as a volunteer under the Fair Labor Standards Act. [29 C.F.R. section 553-106(f)]
Economic Realities Test v. Totality of Circumstances Test
The courts are not in agreement as to the test for determining whether a person is an employee or a volunteer for FLSA purposes, even under the above rules. Some courts have used the " economic realities test," under which a person is an employee if he is economically dependent upon the business to which he renders service, and a volunteer if he is not.
Other courts have concluded that while the economic realities test applies to the question of whether a person is an employee or independent contractor, it does not work well on the question of whether a person is an employee or a volunteer. The person in question may not be presently economically dependent upon the employer, but his volunteer work may rest on reasons other than altruistic ones, including future economic reasons, such as the selection of future employees from the ranks of volunteers. Those courts have adopted the " totality of circumstances test." [See Krause v. Cherry Hill Fire District , 969 F. Supp. 270 (D. N.J. 1997); Rodriguez v. Township of Holiday Lakes , 866 F. Supp. 1012 (S.D. Tex. 1994); Torado v. Township of Union , 27 F. Supp. 517 (D. New Jersey 1998). Also see the unreported case of Cleveland v. City of Elmendorf, 2004 WL 305609 (W.D. Tex)].
Presumably, the Tennessee courts could adopt a totality of circumstances test for distinguishing between employees and volunteers for the purpose of Tennessee Code Annotated, '7-51-1501.
The question of how much and what kind of compensation before a volunteer becomes an employee has been important in the cases in which the volunteers received some kind of compensation:
- Krause, above: The " volunteers" were held to be employees for a certain period during which they were paid a minimum of $5.05 perhour and a maximum of $9.00 per hour.
- Doty v. Town of South Prairie , 120 P.3d 941 (Wash. 2005): The Washington Supreme Court said that the $6 per call and $10 per drill stipend paid by the town to its volunteer fire
fighters did not constitute " wages" within the meaning of that state's workers compensation law, reasoning that:
In light of our Minimum Wage Act, Chapter 49.46 RCW, it is highly unlikely that our legislature would consider the stipend the town paid Doty as constituting remuneration for the fire fighting service she performed. Doty received the same small stipend amount regardless of the duration of the call and the extent of the services performed. This is not remuneration for her services, but more reasonably, maintenance and reimbursement for expenses incurred in performing her assigned duties, such as reimbursement for travel and food expenses a volunteer inevitably incurs in responding to calls. [At 542]
Likewise, the premiums paid by the city for in-line-of-duty insurance benefits under another statute did not constitute wages, said the Court.
- Tawes v. Frankford Volunteer Fire Company , 2005 WL 83784 (D. Del.) (Unreported): The Court held that a person was a volunteer rather than an employee for the purposes of the Americans With Disabilities Act, even though he was entitled to the following benefits:
Pension benefits: Entitled to contribute $60 a year to the state pension fund (or if the person worked 40 hours for the fire company, the fire company would make the contribution); entitled to receive certain pension benefits at age 60 after 10 years of service.
Line of duty benefits (restricted to injury and death arising from line of duty): Secondary automobile insurance; death benefits, disability benefits, funeral expenses, state worker's compensation benefits.
Other benefits: discounts on wireless phones and phone service; use of the fire companies premises; $300 tax credit for the purchases of essential firefighter equipment; firefighters skills training; uniforms and equipment.
I found no case in which the total compensation during a particular period paid to a person labeled as a volunteer was an issue, although it seems logical that at some point total compensation could be significant enough to raise the question of whether the person is a volunteer or an employee for the purposes of Tennessee Code Annotated, '7-51-1501.