When is a 'non-profit' volunteer fire department itself an OSHANC-covered employer, and what factors should the Department of Labor weigh in deciding?

Plain-English summary

The North Carolina Department of Labor asked how to decide whether a nonprofit volunteer fire department had an employer-employee relationship with its members under the State Occupational Safety and Health Act. The AG said each department's circumstances required individual examination. The principal factor was whether members received compensation for their service or contributed on a purely voluntary basis.

The opinion said a department with one or more compensated members had an employer-employee relationship and was an employer under the Act. If none received direct or indirect compensation, the department was not an employer and was not responsible for citations or penalties under the Act. The opinion described compensation as including wages, sick pay, vacation pay, severance pay, commissions, bonuses, and other promised amounts. Workers' compensation or disability insurance alone should not create an employment relationship, it said, because the volunteer received no benefit unless injured.

A department found to be an employer had to comply with the Act. The AG said it may be cited for a violative condition if a paid employee was exposed or potentially exposed to the hazard. That statement did not decide whether volunteer members gained coverage through the department's paid staff, nor did it decide every possible violation involving only volunteers.

The opinion distinguished a separate question: whether the fire department was part of a municipality for the safety-program requirement in G.S. § 95-148. A November 1993 opinion addressed municipal control. This opinion said the department's economic relationship with its members governed the employer question under G.S. § 95-129, while control governed the municipality question under G.S. § 95-148.

Currency note

This opinion applied the 1993 State Occupational Safety and Health Act and the cited federal authorities. Check current law and the department's actual compensation arrangements for a present coverage question.

Background and statutory framework

G.S. § 95-129 imposed workplace-safety duties on employers. The opinion quoted G.S. § 95-127's definitions of employer and employee and concluded that one or more employees made an organization an employer under the Act. It then focused on compensation to distinguish employment from purely voluntary service in the fire departments under discussion.

G.S. § 95-148 required certain safety and health programs for state and local government. The opinion said a volunteer fire department not part of a municipality was exempt from that particular requirement, while the Act's other provisions still applied to a department determined to be an employer.

Common questions

Does paying one fire department member matter?

Yes. The AG said compensation for one or more members created an employer-employee relationship. Whether the department was covered still called for a case-by-case examination of its circumstances.

Does providing workers' compensation or disability insurance alone make volunteers employees?

The opinion said it should not, standing alone. It reasoned that a volunteer would receive no benefit from that coverage unless injured while serving.

Can a covered department be cited for a hazard?

The opinion said it may be cited if a paid employee is exposed, or potentially exposed, to a violative condition. It did not state that all volunteers automatically gain the Act's protection or rule on every scenario where only volunteers encounter a hazard.

Is the municipality-control question the same as the department-employer question?

No. The AG said compensation was key to the department's status as an employer under G.S. § 95-129, while municipal control mattered to whether it was part of a municipality under G.S. § 95-148.

Source

• Landing page: https://ncdoj.gov/opinions/applicability-of-the-occupational-safety-and-health-act-of-north-carolina-3/

Citations

• N.C.G.S. § 95-127(9)
• N.C.G.S. § 95-127(10)
• N.C.G.S. § 95-129
• N.C.G.S. § 95-148
• N.C.G.S. § 95-25.2(16)
• N.C.G.S. § 58-87-1(b)(2) (1991)
• 29 C.F.R. § 1975.3(d) (1992)
• 29 C.F.R. § 1975.4(b)(4) (1992)
• City of Fort Calhoun v. Collins, 500 N.W.2d 822 (Neb. 1993)
• Smith v. Berks Community Television, 657 F. Supp. 794 (E.D. Pa. 1987)
• Stuart v. Faulk, 426 N.E.2d 443 (1981)
• Secretary of Labor v. Arlie R. Hawk, 1976-1977 OSHD 20,707, OSHRC Docket No. 6688 (May 19, 1976)
• Secretary of Labor v. Poughkeepsie Yacht Club, Inc., 1979 OSHD 23,888, OSHRC Docket No. 76-4026 (Sept. 17, 1979)

Original opinion text

December 21, 1993

Charles N. Jeffress
Deputy Commissioner/Director
Division of Occupational Safety and Health
North Carolina Department of Labor
412 North Salisbury Street
Raleigh, North Carolina 27603-5952

Re: Advisory Opinion; Applicability of the Occupational Safety and Health Act of North Carolina, Article 16 of Chapter 95 of the General Statutes of North Carolina, to Volunteer Fire Departments; N.C. Gen. Stat. §95-148.

Dear Mr. Jeffress,

In your November 23, 1993 memorandum, you asked us to examine what factors should be considered in determining an employer-employee relationship between a "non-profit" volunteer fire department and its members.

In order for a volunteer fire department to be covered by the North Carolina Occupational Safety and Health Act (the Act), it must be an employer. N.C. Gen. Stat. §95-129 (1989) imposes certain duties on employers by providing among other things the following: "(1) [e]ach employer shall furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm to his employee. . . (2) [e]ach employer shall comply with occupational safety and health standards or regulations promulgated pursuant to this Article. . .."

Insofar as the duties of section 95-129 are duties of each employer, the question of who is an employer under the statute is a crucial matter of statutory construction. 27 ALR Fed. 943 §2; 29 CFR 1975.3(d) (1992). The definition of "employer" found in N.C. Gen. Stat. §95-127(10) (1989) is as follows:

"(10) The term 'employer' means a person engaged in a business who has employees, including any state or political subdivision of a state, but does not include the employment of domestic workers employed in the place of residence of his or her employer."

The term employee as defined by N.C. Gen. Stat. §95-127(9) (1989) means:

"(9) . . . an employee of an employer who is employed in the business or other capacity of his employer, including any and all business units and agencies owned and/or controlled by the employer."

Any employer employing one or more employees would be an "employer," and therefore, is covered by the Act. 27 ALR Fed 943 §1[c].

Because of the varied nature of fire departments in North Carolina, the question of whether a volunteer fire department is an employer as contemplated by the Act, i.e. whether there is an employer-employee relationship between the volunteer fire department and its members, must be determined on a case-by-case basis. The principal factor to be considered in determining whether the volunteer fire department is an employer is whether members of the volunteer fire department receive compensation for their services, as opposed to their contributing assistance on a purely voluntary basis. See City of Fort Calhoun v. Collins, 500 N.W.2d 822, 826 (Neb. 1993) (quoting Smith v. Berks Community Television, 657 F. Supp. 794 (E.D. Pa. 1987)); Stuart v. Faulk, 426 N.E.2d 443 (1981); Secretary of Labor v. Arlie R. Hawk, 1976-1977 OSHD 20,707, OSHRC Docket No. 6688 (May 19, 1976); see also, N. C. Gen. Stat. §58-87-1(b)(2) (1991). Where one or more members receive compensation, an employer-employee relationship exists. Conversely, where none of the members receive any compensation, an employer-employee relationship does not exist.

Generally, compensation is defined as wages, including sick pay, vacation pay, severance pay, commissions, bonuses, and other amounts promised. See N. C. Gen. Stat. §95-25.2(16) (1989). Providing workers' compensation or disability insurance, however, should not be sufficient, standing alone, to create an employer-employee relationship. Although workers' compensation and disability insurance constitute "benefits" which arguably amount to a form of compensation, a volunteer fireman receives no benefit from them unless injured while working as a volunteer firefighter. For this reason, at least one jurisdiction has held that the furnishing of workers' compensation benefits to volunteer firemen does not create an employee-employer relationship. See City of Fort Calhoun v. Collins, 500 N.W.2d at 824.

Clearly, if the volunteer fire department is deemed to be an employer for purposes of the Act, it must comply with the Act and is responsible for citations and penalties resulting from any violations of the Act. See Secretary of Labor v. Poughkeepsie Yacht Club, Inc., 1979 OSHD 23,888, OSHRC Docket No. 76-4026 (Sept. 17, 1979). Thus, if a violative condition is found, the volunteer fire department may be cited if any paid employee is exposed, or potentially exposed, to the hazard created by the condition. On the other hand, if the volunteer fire department consists of members who contribute assistance on a purely voluntary basis and receive no direct or indirect compensation, the volunteer fire department is not an employer as defined by the Act, and as such, is not responsible for citations and penalties resulting from any violations of the Act. See City of Fort Calhoun v. Collins, 500 N.W.2d at 826.

The only provisions of the Act that exempt volunteer fire departments from any requirements of the Act are found in N.C. Gen. Stat. §95-148 (1989). This section, which applies to state and local governmental entities, is limited in scope. Specifically, this section requires state agencies and local governments to establish and maintain specific safety and health programs. Volunteer fire departments not a part of a municipality are exempted from this requirement. However, all other provisions of the Act would apply to any volunteer fire department determined to be an employer, which includes non-profit organizations. 29 CFR 1975.4(b)(4) (1992).

In our advisory opinion of November 17, 1993, we discussed the conditions which, if shown to exist, would make a volunteer fire department part of a municipality for purposes of N.C. Gen. Stat. §95-148 (1989). While the economic relationship between a volunteer fire department and its members is key to determining whether the volunteer fire department is an employer under N.C. Gen. Stat. §95-129 (1989), the operative element in the relationship between the volunteer fire department and the municipality under N.C. Gen. Stat. §95-148 (1989) is control.

We hope that the above information answers any further concerns that you may have regarding the applicability of the North Carolina Occupational Safety and Health Act to volunteer fire departments. If we can be of any further assistance, please do not hesitate to contact us.

Reginald L. Watkins
Senior Deputy Attorney General

Marvealavette D. Jackson Francis
Associate Attorney General