The U.S. Court of Appeals for the Sixth Circuit held in Mendel v. City of Gibraltar that volunteer firefighters, who receive $15 per hour whenever they voluntarily choose to respond to calls, are employees who must be counted to determine if a dispatcher fired by the city was protected by the Family and Medical Leave Act (FMLA). In order to qualify as an “eligible employee” under the FMLA, an employee must be employed at a work site where the employer employs 50 or more employees within 75 miles. The court held that the volunteer firefighters’ pay of $15 per hour constituted substantial wages and, therefore, that the firefighters did not qualify for an exception for volunteers who perform services for public agencies. As a result, the volunteer firefighters had to be counted for FMLA purposes. The court did not analyze the separate issue of whether the city itself was a “covered employer” under the FMLA (i.e., an employer with 50 or more employees employed during 20 or more calendar weeks during the current or preceding calendar year). Public employers who do not currently provide FMLA coverage should investigate whether their paid volunteer employees could trigger FMLA liability.
