As litigation over the alleged “employee” status of unpaid interns continues, employers and courts continue to analyze whether other service providers are “employees” under the FLSA who must receive minimum wage and overtime for hours in excess of 40.  Consistent with the Sixth Circuit’s employer-friendly ruling on a similar issue, the Court of Appeals for the Eleventh Circuit recently ruled that a volunteer firefighter in Key Largo was not an employee.  Freeman v. Key Largo Volunteer Fire & Rescue Dep't., Inc., 2012 U.S. App. LEXIS 22392 (11th Cir. Oct. 31, 2012).

Plaintiff Freeman, like the other volunteer firefighters in his district, signed an agreement acknowledging his volunteer status, and the fact that he would receive a sub-minimum wage rate ($5.00/hour) for hours devoted to his volunteer firefighting work, with a cap of $1200 /month regardless of how many hours he put in.  He brought suit under the FLSA, claiming to be an employee entitled to minimum wage for all hours worked, and, when the fire department refused to allow him to continue serving after he challenged his volunteer (i.e., non-employee) status, he asserted a retaliation claim.  Affirming the District Court’s ruling in favor of the department, the Eleventh Circuit rejected both contentions, citing the written agreement outlining plaintiff’s volunteer status, which distinguished him from the department’s paid employee firefighters, and noting that “[u]nder the Department-District contract . . . there is a clear distinction between volunteers and employees.” Because Plaintiff was a volunteer, and not an “employee,” the Circuit Court agreed with the District Court’s dismissal of the retaliation claim, as only employees are protected by the anti-retaliation provision.

Whether called volunteers, interns, candy-stripers or any other name, individuals providing recurring services to any employer or business will generally always possess some indicia of employment.   Employers and business utilizing such individuals must assess the proper classification keeping in mind governing law in their jurisdiction, as well as applicable state law and state agency guidance on the issue.