Nonprofit organizations and governmental entities are permitted to use volunteer labor. In many instances, the work performed mirrors that performed by paid staff. Employers may want to recognize the time and efforts of the volunteers through cash payments. There is much danger in providing such financial rewards in that you may convert the volunteer into an employee.
The City of Gibraltar, Michigan was sued by a discharged employee, Paul Mendel, for violating his Family and Medical Leave Act rights. The City had fewer than 50 employees and argued that its employees were not eligible for FMLA.
The City’s workforce was comprised of 41 employees plus approximately 30 volunteer firefighters. The volunteer firefighters were paid $15 per hour for the time spent on responses to emergencies or for maintaining equipment. Mendel introduced evidence to show that the prevailing rate of pay for firefighters in other localities was between $14 and $17 per hour and the part-time Fire Chief averages $19.23 per hour.
In determining whether volunteer firefighters fall within the FMLA definition of an employee, the 6th Circuit Court of Appeals looked to the Fair Labor Standards Act definition of employee. The court first concluded that the firefighters fall within the FLSA’s broad definition of employee in 29 U.S.C. § 203(g) (they are “suffered or permitted to work”). The court then concluded that the firefighters...
