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." The opinion says funding alone is unlikely to suffice and must be considered together with the 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, OSHANC coverage does not apply on the municipality-or-county employment theory considered here. The opinion says that without control, no employment relationship exists between the local government and the volunteer department.

Currency note

This opinion was issued in 1993. Check current statutes and decisions before applying its analysis today.

Background and statutory framework

The opinion says a municipality or county may be responsible for an OSHANC compliance program, citations, and penalties if it is found to be the employer under the stated control analysis and N.C. Gen. Stat. § 95-148. It lists five major indicators: ownership of the station, ownership of firefighting equipment, approval of personnel decisions, direction of work, and funding of the department's budget, including any payments or benefits to firefighters.

The opinion requires examination of all factors and clear and convincing evidence of control. It says one factor alone may not necessarily establish control. Funding by itself is unlikely to suffice, though the opinion directs that it be considered with the other indicators.

Common questions

Does funding a volunteer department alone make the municipality its employer?

The opinion says funding alone is unlikely to establish control. Its funding factor includes compensation, reimbursements, retirement or Social Security payments, and workers' compensation or disability benefits for firefighters. All listed factors must be examined together; the opinion gives no categorical safe harbor for any one funding arrangement.

What if the municipality or county controls the department?

If the control establishes an employment relationship by clear and convincing evidence, the opinion says OSHANC coverage applies. The municipality or county, as employer, would be responsible for developing, paying for, and enforcing an OSHA compliance program and would be subject to citations and penalties for the department's OSHANC violations.

Does the opinion decide whether a volunteer department itself is an employer?

No. Its stated analysis asks whether a municipality or county controls a volunteer fire department sufficiently to create an employment relationship with that local government.

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