Did paying on-call firefighters turn volunteering into a second job under Louisiana law?

Plain-English summary

A Louisiana fire chief asked what changed when some firefighters moved from volunteer status to paid-on-call work. By the time of the 2006 opinion, those firefighters were paid an hourly wage for calls, meetings, and training. The Attorney General treated that arrangement as part-time employment. By contrast, a nominal reimbursement could still be consistent with volunteer status under the statute the AG cited.

The AG found no law barring a private employer from restricting an employee's second job as a paid-on-call firefighter. It also pointed out that a Louisiana provision protecting certified volunteers from certain employment penalties applied to volunteer firefighters employed by the state, not to every paid-on-call firefighter. For firefighters whose main job was in government, it said the dual officeholding and employment rules had to be considered. Simply applying for the fire job or undergoing a physical or background check did not itself create employment.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could an expense reimbursement leave a firefighter classified as a volunteer?

The AG said yes if the reimbursement was nominal. It cited LSA-R.S. 23:1036's description of active volunteer firefighters receiving nominal or no remuneration.

Could a private employer restrict a paid-on-call firefighter's second job?

The AG found nothing preventing a private employer from placing restrictions on secondary employment. The opinion did not specify a particular employer's policy or decide an individual employment dispute.

Did the statute protecting volunteers from employment penalties cover paid-on-call firefighters?

The opinion described LSA-R.S. 23:893 as protecting certified volunteer firefighters employed by the state from being denied leave, benefits, or employment for qualifying emergency-response absences. It did not extend that protection to the paid-on-call employees described in the request.

Did an application or pre-employment screening make someone a fire district employee?

No. The AG said filling out an application, completing a physical, or undergoing a background check did not constitute employment. It quoted a statutory definition based on services performed for wages or under a contract of hire.

Background and statutory framework

The Carlyss Fire Department had changed some firefighters from volunteers to hourly paid-on-call staff. Chief Jude Savoie asked about reimbursements, a primary employer's restrictions and penalties, and when an employment relationship began. The AG used LSA-R.S. 23:1036 for volunteer status, LSA-R.S. 23:893 for the limited protection of state-employed certified volunteers, and LSA-R.S. 23:1472(12)(A) for the definition of employment. Its answers depended on the distinction between nominal reimbursement and hourly paid service.

Citations

• LSA-R.S. 23:1036 (volunteer firefighter status and nominal remuneration).
• LSA-R.S. 23:893 (protection for certified volunteer firefighters employed by the state).
• LSA-R.S. 23:1472(12)(A) (employment definition quoted in the opinion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0097

Original opinion text

June 27, 2006
Opinion No. 05-0097

Jude Savoie, Fire Chief
71-1-1 Municipal fire & Police Civil Service
Carlyss Fire Department
A change in the status of your firefighters from 5151 Volunteer Road volunteer to “paid-on-call” implies an employment
Sulphur, LA 70665
relationship.

Dear Mr. Savoie:

Your request for an Attorney General opinion was forwarded to me for research and reply. You mentioned that the Calsasieu Parish Ward Four Fire District Number Two was considering changing the status of your firefighters from volunteers to “paid-on-call” and you were concerned that the change in status might imply having a second job in which some employers have rules against. In relation thereto, you ask the following questions:

1) If a person receives a “reimbursement” are they considered volunteers? 2) May an employer prohibit a person from acting as a “paid-on-call”
firefighter?
3) Could an employer penalize an employee injured as a “paid-on-call”
firefighter?
4) Does filling out a job application, having a physical and background check
done constitute part-time employment?

Since your initial request, you have informed us that the District has implemented the change in status of some of your firefighters from “volunteer” to “paid-on-call.” Your “paid-on-call” firefighters are now considered part-time firefighters who are paid an hourly wage per call, meeting or training. Armed with this information, we will proceed to answer your questions.

With respect to your first question, you ask whether a person who receives a reimbursement is considered a volunteer. LSA-R.S. 23:1036 classifies volunteer firefighters as those who are carried on the membership list of the organization as an active participant in the normal functions of the organization and who receive “nominal” or “no remuneration” for their services. As such, it is the opinion of this office that a reimbursement is allowable as long as it is nominal.

During our conversation you advised that by changing the status of some of your firefighters from “volunteer” to “paid-on-call” that an employer-employee type relationship has been created. As such, you ask whether the primary private

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Jude Savoie, Fire Chief
Opinion No. 05-0097
Page 2

employer may prohibit a person from acting as a paid-on-call firefighter or be penalized for any injuries sustained while acting in the paid-on-call capacity. In answer to your second and third questions, we found nothing that prevents a private employer from providing restrictions to secondary employment. Now that the status of some of your firefighters have changed from volunteers to paid-on- call, depending on their employment with local, state and the federal governments, you now have to take into consideration the rules of Dual Officeholding and Dual Employment (LSA-R.S. 42:61 et.seq).

Furthermore, only volunteer firefighters who are employed by the state are shielded from action that may be considered penal in nature. The prohibition is found at LSA-R.S. 23:893 and it provides as follow:

No certified volunteer firefighter employed by the state of Louisiana shall be denied leave, work-related benefits, or employment for absenting himself from said employment for the purpose of emergency response pursuant to such certification….

With respect to your final question, filling out job applications does not constitute employment, nor does having physicals and/or background checks. Pursuant to LSA-R.S. 23:1472(12)(A) employment is defined as any services including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied.

We hope this opinion has sufficiently addressed your concerns. If our office may be of further assistance, please do not hesitate to contact us.

Sincerely,

CHARLES C. FOTI, JR.
ATTORNEY GENERAL

By: ___
CHARLENE PATTERSON
Assistant Attorney General

/cp

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Jude Savoie, Fire Chief
Opinion No. 05-0097
Page 3

#05-0097

LSA-R.S. 23:893; LSA-R.S. 23:893; LSA-R.S. 23:1472(12)(A)

71-1-1 Municipal fire & Police Civil Service

A change in the status of your firefighters from volunteer to “paid-on-call” implies an employment relationship.

Jude Savoie, Fire Chief
Carlyss Fire Department
5151 Volunteer Road
Sulphur, LA 70665

Date Received:
Date Released: June 27, 2006

Charlene Patterson
Assistant Attorney General