Paying “Volunteers” Might Start a Fire

Paying “Volunteers” M…

“Employee” or “Independent Contractor”? Throughout my twenty year career, I have analyzed and argued this question on behalf of a host of clients in multiple industries. Depending on how a worker is classified, the paying company may or may not be responsible for payroll withholding and a host of employee benefits. A recent case out of the United States Court of Appeals for the 6th Circuit takes the debate to a new level: What if someone “volunteers” his services but receives compensation in return?

Volunteer firefighters in the City of Gibraltar historically received $15 per hour if they responded to an emergency call. A group of the firefighters argued that they were in fact employees and therefore entitled to overtime protection and family medical leave. The City countered that – because the firefighters could choose whether or not to respond to any given emergency call and because they received only “nominal” pay – they were properly treated as volunteers.

The federal appeals court in Cincinnati sided with the firefighters. Of particular importance to the Court was the fact that the $15 per hour payment was comparable to the going wage for employee firefighters in other communities. Consequently, the City owed all rights and privileges of employment to these firefighters, notwithstanding their designation as “volunteers.”

The lesson here is really the same as in the ongoing debate between independent contractors and employees. It’s not the name or title that determines how a worker is categorized; rather, Courts will focus on the specific conditions of the relationship in deciding whether an employee has been misclassified as an independent contractor or a volunteer. You know the adage, “If it looks like a duck, walks like a duck, and quacks like a duck, it’s a duck.” The same goes for an employee.

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