By Michelle LeBeau and Michael Little
Volunteer firefighters who receive $15 per hour for responding to calls when they choose to do so are “employees” under the Family and Medical Leave Act (FMLA), the 6th U.S. Circuit Court of Appeals ruled.
The plaintiff, Paul Mendel, was a police dispatcher who filed suit against the city of Gibraltar, Mich., for violating his rights under the FMLA. The city moved to dismiss Mendel’s claims, arguing that it was not covered by the FMLA because it did not employ 50 people, the minimum number required for the statute to apply. The city claimed that it employed only 41 workers and that its 25-30 volunteer firefighters were not “employees” for purposes of the FMLA. The district court agreed with the city and dismissed the FMLA claims.
The 6th Circuit reversed the district court and recognized the volunteer firefighters as “employees.” The appellate court, therefore, found that the city was covered by the FMLA. In reaching its conclusion, the 6th Circuit noted that the law borrows its definition of “employee” from the Fair Labor Standards Act (FLSA), and, accordingly, the appellate court looked to the FLSA definition and its interpreting case law.
The FLSA defines “employee” as an “individual employed by an employer” and “employ” as “to suffer or permit to work.” The 6th Circuit determined that the volunteer firefighters, who are paid $15 for each hour that they respond to fires, meet this definition. In weighing the matter, the appellate court was not swayed by an FLSA provision excluding from the definition of “employee” any public-agency volunteers who receive no more than a “nominal” fee for their services. Instead, the court deemed the $15 per hour paid to the volunteer firefighters to be “substantial” and held that the hourly wage was compensation under the statute.
The 6th Circuit reached this conclusion by applying the “economic realities” test that the Supreme Court adopted for determining employment status under the FLSA. The test does not turn solely on the manner in which the parties characterize their relationship or the traditional notion that employers must exercise control over the daily activities of their workers; rather, it considers a variety of factors, including key evidence in this case confirming the volunteer firefighters rendered their services for the city “with the promise, expectation and receipt of substantial compensation.” While the appellate court recognized the “importance of control as one of the factors under the general economic reality test, [it] could not agree that the lack of control in this case [was] sufficient to overcome the fact that the firefighters are paid substantial wages for performing work as permitted by the city.” That expectation of payment also overcame evidence that the city referred to the firefighters as “volunteers.” The appellate court remanded the case to the district court for further proceedings.
Mendel v. City of Gibraltar, 6th Cir., No. 12-1231 (Aug. 15, 2013).
Professional Pointer: Employers cannot rely solely on their own characterization of their workforce in determining whether their workers are “employees” protected by a particular law. Courts will look beyond the labels given by the parties and independently apply the definition of an “employee” from each statute in deciding whether workers are covered by that statute. Michelle LeBeau is a shareholder and Michael Little is an associate in the Detroit metro office of Ogletree Deakins, an international labor and employment law firm representing management.