When is a volunteer fire department considered part of a municipality or county such that the city or county itself becomes responsible for OSHANC compliance, including citations and penalties, for fire-department safety violations?

Plain-English summary

NC's Department of Labor asked the AG to articulate when a municipality or county exercises enough control over a volunteer fire department that the municipality or county itself becomes the OSHANC "employer" for the firefighters. This question matters because it determines who bears the burden of OSHANC compliance and who faces citations and penalties for safety violations at fire-department incidents and facilities.

Senior Deputy AG Reginald L. Watkins and Associate AG Marvealavette D. Jackson Francis answered with a five-factor framework based on the agency control analysis used by federal and state courts in employment-relationship cases.

The factor list:

1. Ownership of land and building. Does the municipality or county own the land and building that houses the volunteer fire department? Town-owned firehouses are a control indicator.

2. Ownership of firefighting equipment, tools, and vehicles. Who owns the apparatus? Municipalities that supply the fire trucks, pumps, hoses, breathing equipment, and tools exercise significant control over what the volunteers actually do.

3. Approval of personnel decisions. Does the municipality approve who serves as a firefighter? Common control indicators include requiring minimum qualifications, mandating ongoing training, and requiring notice and explanation for cessation of service.

4. Supervising or directing the work environment. Does the municipality direct operations during fires, require activity reports from the fire department, require attendance at municipal meetings, or approve the department's operational plan and work hours?

5. Funding the budget. Does the municipality fund the department's budget? Compensation to firefighters, expense reimbursement, retirement and Social Security contributions, workers' compensation, disability benefits, all point to control.

Receipt of state funds alone is not enough. Quoting Alcena v. Raine and Blum v. Yaretsky: "[r]eceipt of state funds [alone] is . . . insufficient to transform . . . private actions into state actions." Funding must combine with other factors.

Compensation is essential but not sufficient. The opinion cites Graves v. Women's Professional Rodeo Ass'n. for the principle that "compensation is not a sufficient condition, but it is an essential condition to the existence of an employer/employee relationship." Compensation alone does not establish control; lack of compensation typically defeats the relationship entirely.

Clear and convincing standard. To find sufficient control such that OSHANC employer-employee liability attaches, control must be shown by clear and convincing evidence. 12 N.C. Index 3d Evidence and Witnesses § 71 defines the standard as proof "within the ordinary and accepted sense of the words." A single factor by itself is not necessarily enough.

If control is established, the municipality becomes the employer. If the five-factor analysis demonstrates clear and convincing control, the municipality (not the volunteer fire department) is legally responsible for developing, funding, and enforcing an OSHA compliance program for the firefighters. The municipality is subject to OSHANC citations and penalties for fire-department violations.

If control is not established, the volunteer fire department is independent. Its OSHANC status (and that of its members) then depends on the separate analysis in the companion December 21, 1993 opinion (whether the volunteer fire department itself is an employer by virtue of paying any members).

The five-factor test gives municipalities and counties guidance for structuring their relationships with volunteer departments. If they want to insulate themselves from OSHANC liability, they can structure the relationship to avoid the listed indicators. If they want responsibility for safety (and the corresponding control over operations), they can affirmatively adopt those indicators.

Currency note

This opinion was issued in 1993. 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. OSHANC has been amended multiple times since 1993. The federal Title VII jurisprudence on volunteer firefighter employee status has continued to develop. The companion December 21, 1993 NC AG opinion provides the parallel framework for whether the volunteer department itself is an employer. Anyone advising a municipality or fire department today should consult current statutes and current case law, including subsequent Fourth Circuit decisions on volunteer firefighter status.

Background and statutory framework

The volunteer fire department is a uniquely American institution. Most NC fire protection outside major cities is provided by volunteer departments, with members responding from their homes or workplaces when the alert sounds. These departments are typically structured as non-profit corporations or unincorporated associations, with their own governance, training, and operations. Many also have varying degrees of integration with the local government.

The OSHANC question matters because firefighting is one of the most dangerous occupations. Falling structures, heat exposure, smoke, hazardous materials, vehicle accidents responding to calls, all create serious safety risks. OSHANC standards (and the federal NFPA standards that often inform them) impose substantial compliance requirements: training, protective equipment, exposure monitoring, recordkeeping. If a volunteer fire department is an OSHANC employer or part of a covered municipal employer, those requirements apply. If not, the department operates under whatever voluntary standards it adopts.

The five-factor framework is faithful to the federal Title VII and employment-discrimination jurisprudence. Havistola v. Community Fire Co. (cited 4th Cir. 1993) had just been decided when this AG opinion issued, and Watkins drew on it for the multi-factor analysis. Garrett v. Phillips Mills (4th Cir. 1983) had similarly emphasized control as the central factor.

The clear-and-convincing-evidence standard is unusually high for an employment-classification determination. Most employment-classification cases use a preponderance standard. The AG's choice of the higher standard may reflect the structural sensitivity: municipalities are wary of taking on OSHANC liability for departments they don't really run, and the higher standard protects against premature attribution.

The interaction with the second OSHANC question (whether the volunteer fire department itself is an employer) is important. Two separate analyses can produce different results:

• Volunteer department compensates its members but is not controlled by the municipality: department is an OSHANC employer, but municipality is not liable.
• Volunteer department is fully controlled by the municipality but does not pay its members: the joint OSHANC analysis becomes complex, with the municipality potentially liable based on its control even though the department itself would not independently be an employer.
• Department pays members and is controlled by municipality: both may be liable jointly.
• Department doesn't pay anyone and is not controlled: neither is an OSHANC employer.

The opinion is one of the more analytically careful NC AG products of the 1993 office and remains a useful template for analyzing public-employer/contractor/volunteer relationships in other contexts.

Common questions

What happens if a municipality wants to provide some support without taking on full OSHANC liability?

Per the AG, single factors are not necessarily enough; control must be shown by clear and convincing evidence. A municipality can fund the fire department's budget (factor 5) without taking on the other indicators, and that single factor would not by itself establish control. The cautious approach is to structure support in ways that do not cumulatively reach the five-factor threshold.

Does this analysis apply to county-funded volunteer EMS, search and rescue, etc.?

The AG opinion specifically addresses fire departments, but the analytical framework is generalizable. EMS volunteers, search-and-rescue units, and similar quasi-public emergency services would be analyzed under the same control framework. The substantive OSHANC standards applicable to each service may differ.

What about state-funded fire department aid programs?

Per Alcena v. Raine and Blum v. Yaretsky, state funding alone is not enough to create control. Programs that provide state grants to volunteer fire departments do not, by virtue of the grant, make the state a co-employer. The state-funding factor must combine with other control indicators.

Does the federal OSHA framework apply differently?

Federal OSHA has its own coverage rules. For state plans like NC's, the state plan must be at least as effective as the federal plan. Federal OSHA generally does not directly apply to state and local government employers (it leaves that to state plans). So the OSHANC analysis is the operative one for NC volunteer fire departments.

Source

• Landing page: https://ncdoj.gov/opinions/applicability-of-the-occupational-safety-and-health-act-of-north-carolina-2/

Citations

• N.C.G.S. § 95-148
• Havistola v. Community Fire Co., Docket No. 93-126 (4th Cir. Oct. 11, 1993)
• Garrett v. Phillips Mills, Inc., 721 F.2d 979 (4th Cir. 1983)
• Vaughn v. N.C. Dept. of Human Resources, 296 N.C. 683, 252 S.E.2d 792 (1979)
• City of Fort Calhoun v. Collins, 500 N.W.2d 822 (Neb. 1993)
• Tadros v. Coleman, 717 F. Supp. 996 (S.D.N.Y. 1989)
• Smith v. Berks Community Television, 657 F. Supp. 794 (E.D. Pa. 1987)
• Alcena v. Raine, 693 F. Supp. 261 (S.D.N.Y. 1988)
• Blum v. Yaretsky, 457 U.S. 991 (1982)
• Graves v. Women's Professional Rodeo Ass'n., Inc., 907 F.2d 71 (8th Cir. 1990)
• Hall v. Delaware Council on Crime and Justice, 780 F. Supp. 241 (D. Del. 1992)

Original opinion text

Best-effort transcription. The recovered text begins mid-sentence; what follows is the body the NCDOJ archive made available.

[The opinion begins with a string of citations and continues:]

Additionally, the control analysis has been used by the Fourth Circuit Court of Appeals and the North Carolina Supreme Court in determining whether an employment relationship exists. In discussing whether a volunteer firefighter was an employee for Title VII purposes, the Fourth Circuit Court of Appeals noted:

"that crucial to the finding of control sufficient to make one an employee is consideration of the following factors: (1) the kind of occupation…; (2) the skill required in the particular occupation; (3) whether the 'employer' …furnishes equipment…; the length of time…worked; (5) method of payment…; (6) the manner in which the relationship is terminated…; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business…; (9)…retirement benefits; (10)…[payment of] social security taxes; and (11) the intention of the parties."

Havistola v. Community Fire Co., Docket No. 93-126 (4th Cir. Oct. 11, 1993) (quoting Garrett v. Phillips Mills, Inc., 721 F.2d 979, 982 (4th Cir. 1983)). Also, the North Carolina Supreme Court held that a principal is vicariously liable for torts committed by an agent if the principal retains the right "to control and direct the manner in which the details of the work are to be executed" by his agent. Vaughn v. N.C. Dept. of Human Resources, 296 N.C. 683, 686, 252 S.E.2d 792 (1979).

In analyzing the relationship between municipalities and/or counties and volunteer fire department, the presence of the factors listed below will tend to show control which denotes an employer-employee relationship falling within the scope of OSHANC. However, the presence of one or more of these factors may not be enough to establish sufficient control such that an employer-employee relationship is present.

The major factors indicating control are:

1) Ownership of the land and building which houses the volunteer fire department by the municipality or county.

2) Ownership of firefighting equipment, tools and vehicles by the municipality or county.

3) Approval of personnel decisions involving officials or the general membership of the fire department by the municipality or county. For example, this includes requiring minimum qualifications for serving as a firefighter, mandating certain training to remain proficient as a firefighter or requiring that cessation of services as a firefighter be with notice and explanation.

4) Supervising or directing the work environment of members of the fire department by the municipality or county. For example, this includes directing the activities of firefighters in battling a fire, requiring the fire department to submit reports of its activities to the municipality or county, requiring officials of the fire department to attend regularly scheduled meeting of the municipality or county or approving the fire department's operational plan by, among other things establishing the work hours for the firefighters.

5) Funding of the budget of the fire department by the municipality or county. For example, this includes compensating firefighters for their services, routinely reimbursing firefighters for their expenses, paying retirement benefits and/or social security taxes on the firefighters' behalf, or providing workers' compensation or disability benefits to firefighters for injuries sustained in fighting fires through the municipality or county.

The following cases tend to support the proposition that receiving payment is significant in establishing the element of control. City of Fort Calhoun v. Collins, 500 N.W.2d 822, 826-827 (Neb. 1993) (in holding that volunteer firefighters were not employees of the volunteer fire department or the city within the meaning of the Fair Employment Practice Act, the Court found that "the City neither [paid] the members of the Volunteer Fire Department nor control[led] their work"); Tadros v. Coleman, 717 F. Supp. 996, 1004 (S.D.N.Y. 1989) (here, the Court held that the plaintiff is an employee under Title VII of the Civil Rights Act only if the defendant both pays the plaintiff and controls his work); Smith v. Berks Community Television, 657 F. Supp. 794 (E.D. Pa. 1987) (volunteers who received no direct or indirect financial benefit, fringe benefits, or reimbursement for expenses were not employees within the meaning of Title VII of the Civil Rights Act).

Since "[r]eceipt of state funds [alone] is . . . insufficient to transform . . . private actions into state actions," Alcena v. Raine, 693 F. Supp. 261, 266 (S.D.N.Y. 1988) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982)), it is unlikely that funding, in and of itself, will suffice to show control; however, it must be considered together with other factors set forth herein. See also Graves v. Women's Professional Rodeo Ass'n., Inc., 907 F.2d 71, 73 (8th Cir. 1990) (compensation is not a sufficient condition, but it is an essential condition to the existence of an employer/employee relationship); Hall v. Delaware Council on Crime and Justice, 780 F. Supp. 241 (D. Del. 1992) (renumeration received by the Delaware Council on Crime and Justice volunteers was insufficient to consider volunteers employees for purposes of Title VII).

In order to find sufficient control such that an employer-employee relationship exists between a volunteer fire department and a municipality/county, it is necessary to examine all the factors set forth above, and control must be shown by clear and convincing evidence. Clear and convincing evidence "means proof within the ordinary and accepted sense of the words, and the dictionary definitions…given them." 12 N.C. Index 3d Evidence and Witnesses § 71. A single factor in an of itself may not necessarily establish control. If there is no control, an employment relationship cannot be found and, therefore, OSHANC coverage is not applicable. However, if control is shown by clear and convincing evidence such that an employment relationship is present, OSHANC coverage will apply.

Under the above control analysis as well as the statutory scheme outlined in N.C. Gen. Stat. §95-148, if an employment relationship is found, the employer, i.e. the municipality/county, would be legally responsible for the development, expense and enforcement of an OSHA compliance program. As the employer, the municipality/county would also be subject to any citations and penalties arising from OSHANC violations committed by the fire department.

Reginald L. Watkins
Senior Deputy Attorney General

Marvealavette D. Jackson Francis
Associate Attorney General