Paid and Volunteer - Are paid staff at your department allowed to volunteer as well?

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Permalink Reply by Eric D. Liddy Sr. on April 27, 2009 at 12:34am

I'm able to as I work as a paid on call firefighter, volunteer as a reserve deputy and work as a Haz-Mat Tech. through my paid on call department. I work full time EMS for Detroit Fire Department.

The only issue that you MAY have is if your full time gig is a union shop and if they or the department in which you work cares or not.

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Permalink Reply by Ed Mund on April 27, 2009 at 1:56am

From a legal standpoint, I would think they can volunteer. The federal Fair Labor Standards Act prohibits volunteering at the same place you are a paid employee. But it looks to me that in this case, the EMTs are paid employees of the other "large EMS organization." They may be stationed in your house, but they are not your employees, so volunteering there off duty should not violate FLSA. Check with a labor attorney, or learn more about the FLSA at http://www.dol.gov/esa/whd/flsa/. Then again, maybe the prohibition is related to a contract obligation as Eric has noted. Good luck.

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Permalink Reply by Michael on May 1, 2009 at 10:02pm

my ex squad was doing that for a while until they discovered that worker's comp was more expensive for the volies.. pardon that term... so we went all paid.. mostly part-time staff,,,

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Permalink Reply by Bud Paine on May 2, 2009 at 1:28pm

First off...I'm not an attorney! Having said that, FLSA is very specific about Fire/EMS, overtime/volunteering, and their are several official "Opinions" that have been declared by Dept of Labor. It is important to remember that an older opinion letter may not be adequate as the rulings change all the time so research of current opinions is vital!

DOL has a 2008 opinion letter 2008_12_18_13 which also references another case, the Fourth Circuit’s decision in Benshoff v. City of Virginia Beach, 180 F.3d 136 (4th Cir. 1999) so this opinion letter actually addresses the two major stumbling blocks faced by Fire/EMS today in regards to paid/volunteer status:

https://www.dol.gov/esa/WHD/opinion/FLSA/2008/2008_12_18_13_FLSA.pdf

According to DOL, a key element is: whether the organizations are separate and independent legal entities with their own by-laws and boards of directors controlling their decisions;

There was a recent DOL 2009 opinion addressing this that was just withdrawn (it's also on the site) because of factors in the opinion but it will be back soon addressed and corrected so watch for it.

The county I work for just got hammered last year by IRS for a huge OT bill over this issue and had to make major reconstruction of ts services after that, including doing away with our 10-99 contract employees and going F/T with it's east county Fire-based EMS service that I work for (I started out there as a contract FF/Paramedic).

NM has a system where fire districts are under the County Board of Supervisors and the County Fire Marshal Offices are the overall fiscal agents for all their county fire districts and act as their agent for the state. I will be volunteering for the district where I will be living which is separate from the district I am assigned to work. It is important to understand that each fire district is independent by DOL definition.

However, if I want to volunteer for the district I work for, I cannot, without being paid overtime. And...this is important....if I respond as a volunteer from the district where I will be volunteering, to the neighboring district I work for, even as a mutual aid responder, I must STILL be paid overtime.

Now, I also own a private EMS company that does Special Event EMS at the Paramedic level in two states. We have a critical shortage of Paramedics in the county where I am moving to, and work, in NM (I am one of only five). In order to be able to volunteer my services (as I am a big proponent of volunteering) in the east county I have generated an MOU with the county to provide ALS in the county as a third service when the county service (where I work) is overwhelmed or unavailable, or I am officially requested by county dispatch, or I offer my assistance and it is accepted by any county responding agency. As a separate entity, with a state EMS service number, and transport capable with no intention of receiving any compensation, this meets the spirit of the law according to the folks I contacted at the DOL. So, this is how I am able to still volunteer in the same county where I work. Personally, to me, it's not all about the money.

Having shared this, I strongly recommend that anyone desiring information as to whether what they are doing is legal, or not, is to send a letter to you regional Dept of Labor office detailing in great specifics your question about your your status (P/V), descriptions about your agency (or agencies), and your circumstances. You don't have to name agencies but in order for the opinion to stand you must be specific about ALL roles by all the actors. That would be a good starting point before considering hiring a labor attorney. Remember, it could be a very costly mistake to your agency if they are ever found non-compliant! That takes money away from you indirectly as it reduces their expenditure budget having to pay back pay and fines.

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Permalink Reply by John Hill on May 7, 2009 at 5:01pm

Before they took over all the paid personnel, our department contracted with a 3rd party, for-profit company to provide EMS personnel. those same personnel could volunteer at the squad. the two entities were complete separate and this satisfied FLSA.

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Permalink Reply by John Fekety on May 7, 2009 at 7:45pm

Ed and Bud made some very good points. For the record, I did practice law for 15 years and handled an OT case against several volunteer fire companies. I no longer practice law so nothing written here should be taken for legal advice - and add in all of the other disclaimers attorneys spell out when talking in generalties.

You have a very fine line because of the fact that the paid EMTs are technically employed by a different organization. If the EMTs are truly employees of the other company and your department is not playing a shell game, then the EMTs probably can volunteer and your department is in the clear. In my case there were two issues, one of which was whether the volunteer companies were separate entities from the township or whether they were an arm of the township's "fire department". The township's fire department really just existed administratively through a Fire Marshal and basically kept (or tried to keep) all the volunteer departments operating from the same play book. Two items the Court looked at in arriving at the decision that the companies were separate entities were: the fact that each fire company was a separate, independent corporation; and, the township did not exercise any control over the fire companies. (The township regulations went so far as to state that the Fire Marshal, although in command at a fire scene, could not issue orders to members of a fire company but had to route the orders through a company officer.) So, if your department and the "other" company are truly two separate corporate entities you are probably safe. However, there may be other issues in the relationship that could swing the pendulum the other way. For instance, what kind control does your department have over the EMTs when they on the other company's clock, is a volunteer EMT who is suspended then prohibited from working at the station for the other company, can the EMT do work that would normally be done on volunteer time when he is on the clock?

Given the rate at which we are losing volunteers I would hate to see your department make a hasty decision that would cost them manpower if it was not necessary. To simply prohibit the paid EMTs from volunteering without consulting an experienced labor lawyer would be like amputating an arm because of a broken finger. On the other hand simply sticking your head in the sand could wind up costing you a helty fine or civil judgement from a lawsuit.

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Permalink Reply by Brian Luger on June 6, 2009 at 12:50am

Thanks to everyone for your input. I am definately taking the suggestions that you all gave me and see what I can come up with. It is great to know that I am not the only one going (or has gone) through this type of problem. This site is a fantasic way to communicate between EMS professionals.
Thanks again.

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Permalink Reply by Benjamin Bonnell on June 7, 2009 at 5:05pm

It sounds as though your board members need to research law a little better to get their answers. As far as paid personnel also volunteering.... as long as its not interfereing with any contract stipulations and the management of the paid staffing agency has no quarums, then your board should be grateful that there are personnel dedicated to the service enough to give up their own time off the clock and continue to answer the calls.

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Permalink Reply by Ari Breslauer on June 8, 2009 at 6:17am

We have something similar in my county here in NY...

Many volunteer agencies here (at least 5 or 6) utilize two of our 911/transport for-profit commercial EMS agencies to staff their ambulances during the day. Frequently, there are volunteers that work but the two are very seperate.

In the five or so different VAC's (Volunteer Ambulance Corps) they have not had any issue with federal labor laws and they have been doing this for many years...

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