State News : New Jersey

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New Jersey



The City of Gibraltar employed 41 employees excluding its “volunteer” firefighters.  When it fired one of the firefighters, Paul Mendel, he sued under the FMLA. The City countered that it was not covered under the FMLA because it had less than 50 employees. There were 25-30 “volunteer firefighters” whom the City contended were not truly employees and should not be counted toward the 50 employee threshold.


            The issue in the case came down to the definition of “employee” for purposes of the FMLA.  The firefighters did not receive health, sick, or vacation benefits; nor did they receive social security benefits.  They did training on their own time.  On the other hand, when the volunteer firefighters responded to any emergency call or maintained equipment, there were paid $15 per hour. 


1.      The Sixth Circuit Court of Appeals studied the Fair Labor Standards Act to obtain the definition of “employee” since the FMLA and FLSA use the same standard.  The Court observed that the United States Supreme Court previously adopted an “economic reality” test to determine whether someone was an employee for purposes of the FLSA. While the district court found that the City had no control over the firefighters, the Court of Appeals said that lack of control was not sufficient to account for the result in this case.  “Each time a firefighter responds to a call, he knows he will receive compensation at a particular hourly rate -- which happens to be substantially similar to the hourly rates paid to full-time employed firefighters in some of the neighboring areas.”


            The Court noted that the FLSA excludes those who receive only a nominal fee from the definition of employee, but the Court did not consider a payment of $15 per hour to be a nominal fee. Therefore the Court held in favor of employment status for the so-called City of Gibraltar volunteer firefighters.  It found that the FMLA applied to the City and to Mr. Mendel’s law suit:


Despite the fact that the Gibraltar firefighters are referred to as ‘volunteers,’ the inescapable fact nevertheless remains that they ‘work in contemplation of compensation.’  Thus, the Gibraltar firefighters are ‘employees’ and not ‘volunteers’ within the meaning of the FLSA.


There was an interesting dissent in this case in which it was argued that the City does not require a firefighter to respond to any fires and did not supervise such firefighters on the scene.  Someone could go for years without responding to a single fire.  The dissent pointed out that the volunteers really were not paid $15 per hour considering the fact that they had to complete 152 hours of training, pass an exam and then complete an additional 73 hours of training each year -- all without pay.


This case can be found at Mendel v. City of Gibraltar, 727 F.3d 565 (6th Cir. 2013).