LABOR RULING IN MARYLAND OPENS PANDORA’S BOX
EDITOR’S OPINION
A recent interpretation and enforcement of the Fair Labor Standards Act by the U.S. Department of Labor (DOL) strikes a blow against fire service volunteerism with a force that is yet to be fully felt.
In a ruling last summer, the DOL prohibited career firefighters in Montgomery County, Maryland, from also serving, in their free time, as volunteers within the county fire department system, saying that the practice represented a form of coercion by the county government to reduce overtime wages. The Montgomery County Fire Department is a consolidation of two paid and 17 combination departments.
Under the Fair Labor Standards Act, an employer is not permitted to accept volunteer services from an employee paid for the same services. The vigilant legal beagles at the DOL fear that the county is or could be attempting to drive its labor costs down by coercing paid firefighters to volunteer firefighting services while off duty.
But the DOL is not sniffing around the country trying to catch firefighters in the act. It acts on complaints, some of which come from unions. The long and short of it is that at least a couple of paid Montgomery County firefighters were upset that their brothers were putting out fires in their free time and possibly cutting into overtime pay and job opportunities for other firefighters—-upset enough to complain to the local union.
The aggrieved firefighters take it to the local, the local takes it to the DOL and the IAFF jumps in, and we have a tough political chain that whips the county both coming and going. By forbidding its paid firefighters from volunteering their firefighting services to the county and compensating with overtime pay those who do work as volunteers, the county complies with the DOL rule. In doing so, however, the county’ places itself in a tenuous legal position whereby certain firefighters are favored for overtime pay over other firefighters who do not volunteer, boding yet another legal battle down the road.
Local union members seem to have won a victory. The DOL has trampled the seeds of coercion in Montgomery County’. In coming to such a position it needed not a shred of proof that the county was actually coercive; the simple facts that volunteerism exists within the county system, that some paid firefighters volunteer services while off duty, and that the county benefits from those services were enough to call the DOL to arms and lead the charge for the right of paid firefighters to earn more overtime.
In the long term, however, it is the IAFF—a principal player in this fight against “coercion” and which in its constitution and by-laws threatens misconduct penalties for its members who volunteer firefighting services regardless of who is or isn’t the “employer”—that stands to gain from a decision such as that rendered in Montgomery County. The overtime issue is for the IAFF a useful wedge in its de facto mission to drive volunteers out of business and increase its membership. The cities are tapped out and the rural communities generally have no sizable tax base, so the IAFF must strike deep into suburbia if it to have any hope of significant expansion.
To that end, the DOL has struck a resounding blow in favor of the IAFF. The Montgomery County ruling has at least called into serious question the ability of governments to manage and sustain a consolidated paid/volunteer system and still be true to the Fair Labor Standards Act. If the overtime pay becomes excessive in the eyes of the county government, it will seek full or partial conversions to paid staffing in at least some stations that rely on volunteers.
And yet, even in suburbia, the taxpayer caught in government’s ever-widening web has but a little juice left to give. The antidote for increased costs of services is most assuredly cutbacks and reorganizations—meaning station closures, reduced company staffing levels, and so forth—which would leave the local union members with a bittersweet victory, indeed.
Should this occur, the international union would kick up considerable dust in opposing the very cutbacks it would have helped create but would do so with one fist raised in angry solidarity and its other hand counting the dues money from the additional members it would have gained through the natural progression of discouraging volunteerism in a consolidated district.
The Montgomery County decision may be a Pandora’s box for the paid and volunteer fire service sectors and for the local governments that manage them in an environment of deepening fiscal hardship.
