October 16, 2013 Articles

Are Volunteers Considered Employees under the FMLA?

The Sixth Circuit thinks so.

By John S. Austin – October 16, 2013

On August 15, 2013, the Sixth Circuit Court of Appeals held that “volunteer” firefighters, who were not required to respond to calls but were paid $15 an hour if they did so, were employees entitled to protection under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). The case arose when a city dispatcher sued the city under the FMLA following the termination of his employment. The district court entered summary judgment against the plaintiff because it held that the 25–30 “volunteer” firefighters could not be counted as employees under the FMLA. Without them, the city did not have more than 50 employees. On appeal, the Sixth Circuit reversed.

“To answer the question of whether reputedly ‘volunteer’ firefighters fall within the scope of the FMLA’s definition of an 'employee,' we must turn to the section of the FLSA that addresses this issue,” stated the court, citing 29 U.S.C. § 2611(3) (providing that for purposes of the FMLA, the terms “employ” and “employee” have the same meaning as given in 29 U.S.C. § 203(e) and (g), the definitions section of the FLSA). The FLSA defines “employee” as “any individual employed by an employer” and “employ” as “to suffer or permit to work.” 29 U.S.C. § 203(e)(1), (g). The Sixth Circuit noted that the Supreme Court’s opinion in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 326 (1992), gives wide latitude to the definition of “employ.”

In Darden, the Supreme Court adopted an “economic reality” test to determine whether an individual is an employee under the FLSA. Under the Court’s long-standing FLSA jurisprudence, “the determination of the relationship does not depend on . . . isolated factors but rather upon the circumstances of the whole activity.” Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947).

The Sixth Circuit conceded “the employment relationship does not lend itself to a precise test, but is to be determined on a case-by-case basis upon the circumstances of the whole business activity,” citing Donovan v. Brandel, 736 F.2d 1114, 1116 (6th Cir. 1984). The Sixth Circuit then found that the volunteer firefighters did not have a consistent schedule, did not receive health insurance, sick days, vacation time, or Social Security benefits, and received Form-1099 MISC to report their income. On the other hand, the court found that the firefighters could be promoted or discharged and determined that the $15/hour pay rate constituted “substantial wages.” While the district court, in concluding that the firefighters were not “employees” within the meaning of the FLSA, had emphasized the lack of control exercised by the city over the firefighters, the Sixth Circuit held this factor was overcome by the payment of substantial wages to the volunteers. Accordingly, the Sixth Circuit held that the “volunteer” firefighters fell within the FLSA’s broad definition of "employee" as they were suffered or permitted to work and received substantial wages for that work.


Keywords: litigation, employment law, labor relations, FMLA, FLSA, volunteer firefighter


John S. Austin is with the Austin Law Firm in Raleigh, North Carolina.


Copyright © 2013, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).