Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: Every year our department hosts an open house during fire prevention week. When the recession hit back in 2009 the department stopped compensating off-duty members who attended the open house. Prior to that, off-duty members who participated were compensated at our overtime rate. For the past several years the open house has been strictly voluntary except for on-duty personnel. The open house consists of on- and off-duty members meeting and greeting the public, answering questions, and providing demonstrations, such as fire extinguishers and extrications. Can the department refuse to pay us for that time, and what would happen if one of our off-duty uncompensated members is injured at the open house?
Answer: You actually have two entirely separate issues: one involving the Fair Labor Standards Act and the other involving workers compensation. Because there are some state law issues that will vary from jurisdiction to jurisdiction, this question really needs to be answered by an attorney in your state. Here are some general thoughts but the outcome will likely vary state to state, particularly with regard to works comp.
Under the FLSA, employees cannot volunteer to perform the same type of services for the same employer. That is a major no-no. The question in your case will come down to a factual determination: is volunteering for open house the same type of services that the firefighters normally provide?
If attending the open house is considered to be the “same type of services” (which it would appear is the case since on-duty personnel attend the open house as well) the off-duty personnel would be entitled to compensation for the time. If not, then compensation is not required. It will come down to a factual determination, and there is the possibility that in some states, state wage and hour laws may expand the right of off-duty personnel to receive compensation. Note that while the time is compensable, the FLSA does not require it to be at overtime rate unless the total hours worked for the employee exceed the statutory maximum (40 hours/week for most employees, 53/week or 212/28 days for firefighters).
The voluntary nature of the open house may also be a factor, albeit a secondary one. Under the FLSA, voluntariness is only an issue if the work is not the “same type of services” the employee normally performs. If voluntariness is an issue, the focus becomes is attendance at the event truly voluntary? Are there consequences (direct or indirect) for those not attending? Does attendance at the open house get mentioned during annual reviews or during promotional processes? Indirect impacts such as these tend to suggest that attendance at the open house is not entirely voluntary.
The second part of the question implicates workers compensation law. Generally employees who are being paid will be covered by workers compensation. However, it is possible for someone who is not being paid to be covered by workers comp. A common example would be an employee who is injured on the employer’s premises prior to the start of work.
Workers compensation is governed by state law and as a result, every state is going to be slightly different in that regard. There are many variations of when comp begins and ends: in some states workers comp starts as soon as the employee arrives at the employer’s premises (whether they have started work or not). There are states where workers comp covers injuries that occur in the employer’s parking lot once the employee exits his/her vehicle. In others states the employee must physically enter the threshold of the employer’s workplace for comp to apply.
So to answer your question as to workers comp – just because an employee is not being paid, does not mean they are not covered by workers comp. To avoid the double negative – an employee who is not being paid may still be covered by workers comp. It will all depend on state workers compensation law. As I said at the beginning, the only way to know for sure is to contact an attorney in your state.
