Fire Service Court Is In Session

By David C. "Chip" Comstock Jr.

For the past three years, the Fire Department Instructors Conference (FDIC) has hosted an open forum discussing current fire service legal issues. The participating panelists have been firefighter-attorneys with a wide variety of experience in addressing hot topics in fire service law. This discussion continues with first Fire Service Court Web column. Our panel of legal experts features John Murphy, Gerald Duff, Mark Robens, Curt Varone, Stephen R. Wirth, Bradley M. Pinksy, and me, David C. "Chip" Comstock Jr.

John Murphy retired in 2007 as the deputy chief with Eastside Fire and Rescue in Issaquah, Washington, and as the chief of Sammamish, Washington, after 32 years of service. His legal focus as an attorney covers employment practices liability, employment policy, medical malpractice, personal injury, internal investigations, and risk management consultation for private and public entities. Since 1977, Murphy has been a licensed physician's assistant in Washington State, focusing on primary care and emergency medicine. He served in the U.S. Navy (1969-1973) as a combat corpsman with the Marine Corps in Vietnam.

Gerry Duff is a founding partner of the law firm of Hanlon, Duff, Estadt, McCormick, and Schramm in St. Clairsville, Ohio. He has been involved in a wide variety of major litigation and administrative matters in federal and state courts and specializes in representing doctors, hospitals, and nurses in various areas of health law. Duff has represented firefighters, EMTs, and fire districts since the early 1990s.

Mark Robens is a captain with the Phoenix (AZ) Fire Department. An attorney for 25 years, he serves on the Board of Directors of the National Association of Fire and Emergency Service Attorneys. He lectures extensively on EMS, fire service risk management, and medical/legal issues. Robens teaches at the community college level and maintains a law practice in Scottsdale, Arizona.

Curt Varone has served in the fire service for more than 35 years, with experience as a volunteer, paid on-call, and career firefighter. He has more than 22 years of experience as a practicing attorney representing firefighters and fire departments. Varone recently retired as a deputy assistant chief (shift commander) with the Providence (RI) Fire Department, and is now the director of the Public Fire Protection Division at the National Fire Protection Association (NFPA). He is also an adjunct faculty member with the National Fire Academy in its Executive Fire Officer Program, and teaches in the fire science program at Providence College. Varone is the author of Fire Officer's Legal Handbook and Legal Considerations for Fire and Emergency Services, both from Cengage-Delmar Publishing.

Steve Wirth is a founding member of Page, Wolfberg, and Wirth, LLC, The National EMS Industry Law Firm.™ PWW counsels ambulance services, municipalities, fire departments, hospitals, and other organizations across the country in a wide range of medical transportation, reimbursement, compliance, labor and employment, and corporate law issues. Wirth has more than 30 years of experience as an EMT, paramedic, flight paramedic, EMS instructor, fire officer, and EMS administrator. A frequent speaker at regional, state, and national conferences, he has authored and co-authored numerous articles and publications on a variety of EMS management topics. Wirth is a firefighter/EMT and the medical officer for the Hampden Township (PA) Volunteer Fire Company.

Bradley M. Pinsky, an attorney in Syracuse, New York, represents hundreds of fire departments, ambulance services, and fire districts throughout the state. A captain with the Manlius (NY) Fire Department and a 20-year veteran EMT, he is the author of the New York State edition of the Fire Department Law and Management Resource Manual.

Finally, I have been an attorney for 20 years and am a partner in the law firm of Comstock, Springer, and Wilson, LPA, in Youngstown, Ohio. A 25-year veteran of the fire service, I am the chief of the Western Reserve Joint Fire District in Poland, Ohio. I lecture extensively on fire service topics related to company officer operations, liability, and personnel issues. My articles have appeared in Fire Engineering and many other fire service magazines.

I expect other attorneys/firefighters to participate in this column in the future. In Skip Coleman's monthly Roundtable column, Fire Engineering readers to submit their responses to fire service questions. In this column, one or more Court members will respond to reader-submitted written questions related to legal issues. We will try to answer as many questions as possible, and in some instances, we will refer readers directly to attorneys in their home states. To submit a legal question, CLICK HERE. Every reader is reminded that the answers the attorneys in this column provide are generic in nature, and do not constitute specific legal advice, since each state may have different legal standards that apply. Always consult a licensed attorney in your home state.

May a firefighter volunteer for a fire department in which he is also a paid employee?

Bradley M. Pinsky: The answer is governed initially by the Fair Labor Standards Act (FLSA). A paid employee is generally prohibited from volunteering for his paid employer in the same capacity for which he is paid. This prohibition against permitting a paid employee to volunteer for his paid employer is to prevent persons from being coerced or pressured into "volunteering" their services. Under the FLSA, all covered and nonexempt employees must be paid not less than the minimum wage for all hours worked and overtime pay for all hours worked over 40 in a workweek. FLSA section 3(e)(4)(A) provides an exception to the definition of the term "employee" for "any individual who volunteers to perform services for a public agency which is a State, a political subdivision of a State, or an interstate governmental agency," if:

I) the individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and

ii) such services are not the same type of services which the individual is employed to perform for such public agency.

An individual is not considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to volunteer. Consequently, under the FLSA, a public agency employee may volunteer without restriction to perform the same type of services for a different public agency, or may volunteer to perform a different type of service for the same public agency that employs him or her.

There are some interesting spins on this issue, however, which depend on how we define services of the "same type." For instance, an employee "might" be able to serve as a paid driver for a municipality and also volunteer as an interior firefighter; as long as the employee is not able to perform interior fire services while being paid and the employee may not drive while serving as a volunteer firefighter.

May a firefighter volunteer for a department that is a neighbor to the department in which he is a paid employee?

Bradley M. Pinsky: This answer is governed primarily by state law, since the federal Fair Labor Standards Act does not prohibit a person from volunteering for a fire department other than one controlled by his employer. Note that in answering this question, I assume the fire department for which the person would volunteer is not simply a separate fire company under the control of the same municipality which employs the firefighter. The complicated question which arises from such a scenario, and requires an answer too long for this column, is whether a person may volunteer in a different fire company which is in the same department as s/he is employed. The answer, generally, however, is "no."

State laws on this topic vary across the nation. In New York, a person may only volunteer for one fire department but may be employed by a separate fire department. A person would therefore not be prohibited for volunteering in a fire department that is not under the control of the individual's municipal employer.

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