HEARING TO EXAMINE THE IMPACT OF THE FAIR LABOR STANDARDS ACT ON VOLUNTEER FIREFIGHTERS

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS

OF THE

COMMITTEE ON EDUCATION AND

THE WORKFORCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

 

HEARING HELD IN WASHINGTON, DC, FEBRUARY 23, 1999

 

Serial No. 106-4

 

Printed for the use of the Committee on Education

and the Workforce


TABLE OF CONTENTS *

STATEMENT OF THE HONORABLE WILLIAM F. GOODLING, CHAIRMAN OF THE COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

OPENING STATEMENT, CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

OPENING STATEMENT, MINORITY RANKING MEMBER MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

STATEMENT OF THE HONORABLE. HERBERT H. BATEMAN, A REPRESENTATIVE OF CONGRESS FROM THE STATE OF VIRGINIA *

STATEMENT OF LARRY CURL, CHIEF, WAYNE TOWNSHIP FIRE DEPARTMENT, INDIANAPOLIS, INDIANA, REPRESENTING THE NATIONAL VOLUNTEER FIRE COUNCIL *

STATEMENT OF GARY C. SCOTT, CHIEF/ADMINISTRATOR, CAMPBELL COUNTY VOLUNTEER FIRE DEPARTMENT, GILLETTE, WYOMING, REPRESENTING THE VOLUNTEER CHIEF OFFICERS SECTION, INTERNATIONAL ASSOCIATION OF FIRE CHIEFS AND THE WYOMING FIRE CHIEFS' ASSOCIATION *

STATEMENT OF FREDERICK NESBITT, DIRECTOR OF GOVERNMENTAL AFFAIRS, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO,

WASHINGTON, D.C. *

APPENDIX A -- WRITTEN STATEMENT OF THE HONORABLE WILLIAM F. GOODLING, CHAIRMAN OF THE COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

APPENDIX B -- WRITTEN OPENING STATEMENT, CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

APPENDIX C -- WRITTEN OPENING STATEMENT, MINORITY RANKING MEMBER MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES *

APPENDIX D -- WRITTEN STATEMENT OF THE HONORABLE DENNIS J. KUCINICH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO *

HEARING TO EXAMINE THE IMPACT OF THE FAIR LABOR STANDARDS ACT ON VOLUNTEER FIREFIGHTERS

_______________________________________________________

Tuesday, February 23, 1999

The subcommittee met, pursuant to notice, at 1:30 p.m., in Room 2175, Rayburn House Office Building, Hon. Cass Ballenger [chairman of the subcommittee], presiding.

Present: Representatives Ballenger, Barrett, Graham, Goodling, Boehner, Owens, Martinez, Woolsey, Sanchez, and Kucinich.

Staff Present: Molly M. Salmi, Professional Staff Member; Gary Visscher, Workforce Policy Counsel; Jason Ayeroff, Staff Assistant; Rob Green, Professional Staff Member; Kevin Talley, Staff Director; Jay Diskey, Communications Director; Mike Reynard, Media Assistant; Brian Kennedy, Labor Counsel/Coordinator; Peter Rutledge, Senior Legislative Associate/Labor; Maria Cuprill, Legislative Associate/Labor, and Shannon McNulty, Staff Assistant/Labor.

 

Chairman Ballenger. [presiding] The subcommittee is meeting today to examine the impact of the Fair Labor Standards Act on volunteer firefighters. I would like to take a moment to welcome our witnesses. But first, our good friend, Chairman Goodling, has another meeting he has to go to. So, if you do not mind, we will let him make his statement first.

 

STATEMENT OF THE HONORABLE WILLIAM F. GOODLING, CHAIRMAN OF THE COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES

Mr. Goodling. First of all, I want to thank Chairman Ballenger for holding this hearing on the impact of the Fair Labor Standards Act on volunteer firefighters. This is one of many issues that he will be tackling in the next two years.

In 1985, we passed legislation to the Fair Labor Standards Act that permits public agencies to accept the services of volunteers, as long as the services ``are not the same type of services which the individual is employed to perform for such public agency.'' Those are the three important words. The reason for this is obvious: to prevent the public agency from demanding that an employee volunteer part of his time for a normal workweek. But as often happens, when things leave here and go downtown, the interpretation changes.

Of course, the way that the department is broadly defining it is certainly not what Congress had in mind. I certainly think that the Department of Labor can address the concern of employees not being coerced into volunteering without adopting such a broad interpretation.

We are having this same problem everywhere. Yesterday I met with two very fine young doctors, who have retired early as many are, and they want to volunteer their services. Unfortunately, because of liability, they can't do that. The liability has been taken care of, supposedly, by State legislation, except that the agency becomes liable for their volunteers. In this case, the agency is trying to take care of hungry and homeless people and they have no money to deal with liability.

So, I would hope that we can come up with a solution to the problem, to protect those from being coerced into volunteering within their own area where they are paid, and at the same time, allow them to volunteer their services in the communities in which they live.

Again, thank you for holding the hearing. Now, I must run and see what the governors want to talk about.

[The statement of Congressman Goodling follows:]

WRITTEN STATEMENT OF THE HONORABLE WILLIAM F. GOODLING, CHAIRMAN OF THE COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES -- SEE APPENDIX A

 

Chairman Ballenger. Thank you, Mr. Goodling. In case our members here would like to know, Mr. Goodling had a meeting with some governors. So, he asked if he could say something and then leave. I said that it was all right with everybody.

According to Rule 12(b) of the committee rules, any oral opening statements are limited to the chairman and the ranking minority member. Therefore, if other members have opening statements, they will be included in the printed hearing record. This will allow us to hear from our witnesses sooner, and to help the members keep to their schedules. Without objection, all member statements and witnesses' written testimony will be included in the hearing record.

 

OPENING STATEMENT, CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES

As I said before, the subcommittee is meeting to examine the impact of the Fair Labor Standards Act on volunteer firefighters. I would like to take a moment to welcome our witnesses here. We appreciate their willingness to take time out of their busy schedules to testify before the subcommittee.

The Fair Labor Standards Act is the primary Federal statute governing wages and hours of work. The act defines the terms ``employer'' and ``employee,'' and contains numerous exceptions to the minimum wage and overtime pay requirements. In 1985, Congress enacted amendments to the act, which included an exemption from the definition of ``employee'' for individuals who are rendering services as ``volunteers'' for State and local government employers. An individual may volunteer for a public agency if the services are not the same type of services that the individual is employed to perform for that agency.

Recent interpretations of the act by the Department of Labor have had an adverse impact on the fire rescue systems in many communities. The law is clear that paid firefighters may volunteer for a separate and independent employer, such as a nearby county. However, conflict between the law and the volunteer firefighters often arises from the Labor Department's determination of whether two agencies of the same State or local government constitute the same or separate public agency. This frequently occurs when a particular jurisdiction, such as a county, uses a mix of volunteers and paid firefighters.

The position taken by the Department of Labor has also interfered with the ability of many career fire and rescue employees to serve their communities as volunteers when off-duty. Some communities have experienced drastic reductions in their volunteer ranks as many career, paid fire and rescue workers are told that they cannot volunteer their time with any other volunteer fire or rescue squad within that jurisdiction. With the limited number of trained and available volunteers, this has created a real hardship in some localities, particularly in rural areas.

In nearby Montgomery County, Maryland, for example, the county enacted a law prohibiting county employees from being volunteers anywhere in Montgomery County. This was the result of a Department of Labor ruling in that particular jurisdiction.

Certainly, these are issues that warrant closer examination by the subcommittee. There must be some way to address the legitimate concerns about coercion without negatively affecting the ability of individuals to freely volunteer within their communities.

Again, I thank the witnesses for their willingness to discuss these issues with us today. I look forward to hearing about how their communities have been impacted by the application of the Fair Labor Standards Act to volunteer firefighters.

I now yield to Mr. Owens, our distinguished minority ranking member, for any opening statement he wishes to make.

[The statement of Chairman Ballenger follows:]

WRITTEN OPENING STATEMENT, CHAIRMAN CASS BALLENGER, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES -- SEE APPENDIX B

 

OPENING STATEMENT, MINORITY RANKING MEMBER MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES

Mr. Owens. Thank you, Mr. Chairman. This is an old issue with us and I see some old experts in the audience.

[Laughter.]

There is only one issue before this subcommittee today, and that is the repeal of overtime protections for paid professional firefighters.

Let us examine the majority's problem with existing law. Mr. Bateman and the majority cite the Department of Labor's interpretation of the law as the problem. They contend that the Department of Labor's interpretation of the Fair Labor Standards Act, as amended in 1985, discourages and prevents volunteers from donating their time and service in public safety and fire protection activities. This is not true. There is absolutely nothing in current law that forbids a paid, professional firefighter from serving as a volunteer firefighter, as long as he does not volunteer for the employer for which he works.

The 1985 compromise to FLSA revised the public sector provision so that a bus driver in Prince William, who is an employee of that county, may also be a volunteer firefighter for that county. However, the compromise kept one very essential component; that is, that public employees would not be allowed to volunteer for their employer for the same job for which they are paid.

 

Mr. Bateman told this subcommittee at the October 25, 1995 hearing that the law prohibited one of his constituents, who is the advanced life support provider for a fire and rescue company in a small town, from being able to help his next-door neighbor or friend in trouble when off-duty because he could be dismissed or face disciplinary action. That claim is not true. It is not based on fact. What the law states very clearly is that a firefighter cannot perform the same type of service for the same employer as they are paid to perform. This protects employees of State and local governments from being required to volunteer to perform the same services for which they are paid, in order to prevent the obvious potential for abuse.

While FLSA's coverage is construed very broadly, its exemptions are construed narrowly and individuals may not waive their rights to the compensation required to implement FLSA's public polices. The Supreme Court has held that FLSA's purposes ``require that it is to be applied to those who would decline its protections.'' Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 1985.

Further, Mr. Chairman, there is absolutely nothing in the current law that hinders the ability of municipalities to recruit volunteer firefighters. We are looking at a sneak attack on overtime, and an attempt to overturn a Supreme Court decision. The unfortunate victims of this attack are professional firefighters.

I yield the balance of my time.

[The statement of Ranking Member Owens follows:]

WRITTEN OPENING STATEMENT, MINORITY RANKING MEMBER MAJOR R. OWENS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE, U.S. HOUSE OF REPRESENTATIVES -- SEE APPENDIX C

 

Chairman Ballenger. Thank you, Mr. Owens. Now I would like to introduce our panel of witnesses.

 

Mr. Kucinich. Chairman?

 

Chairman Ballenger. Excuse me.

 

Mr. Kucinich. Chairman, I had a statement.

 

Chairman Ballenger. It will be introduced into the record.

 

Mr. Kucinich. Okay, thank you.

[The statement of Mr. Kucinich follows:]

WRITTEN STATEMENT OF THE HONORABLE DENNIS J. KUCINICH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO -- SEE APPENDIX D

 

Chairman Ballenger. Now I would like to introduce our panel of witnesses. First is Congressman Herbert H. Bateman, representing the First District of Virginia. Mr. Bateman is the primary sponsor of legislation introduced in past Congresses, which would address this issue. Second, we have Chief Larry Curl of the Wayne Township Fire Department in Indianapolis, Indiana. We also have Chief Gary Scott of Campbell County Volunteer Fire Department in Gillette, Wyoming, and Mr. Frederick Nesbitt, Director of Government Affairs for the International Association of Firefighters, AFL-CIO. Let me thank you all for being here.

Before the witnesses begin, I would like to remind the members that they will be allowed to ask questions of the witnesses after the entire panel has testified. In addition, Committee Rule 2 imposes a five-minute limit on all questions. With that said, Congressman Bateman, you may begin your testimony.

 

STATEMENT OF THE HONORABLE. HERBERT H. BATEMAN, A REPRESENTATIVE OF CONGRESS FROM THE STATE OF VIRGINIA

Mr. Bateman. Thank you very much, Mr. Chairman and members of the committee. I don't know that it is necessary for me to read a statement that I can submit for the record and which, you will find, basically parallels a good deal of what you, Mr. Chairman, have said and what the chairman of the full committee has said.

Let me then suggest that if there has been a sneak attack on overtime labor and regulations, it has certainly been an ill-disguised sneak attack, which persisted through the introduction of basically the same legislation through three different Congresses, all seeking the same objective. Now, clearly Congressman Owens and I do not read the law, the regulation, and the result it ought to obtain, the same way. Hence, I have been seeking a legislative solution that, if the will of the majority in Congress is to enact it, would affect the outcome of what I see to be paramount, overriding public policy concern of allowing public employees to volunteer their services.

I see nothing wrong or objectionable in that. In any legislation that I have introduced or that I choose to be associated with, I am willing to have every safeguard, every provision that the most artful crafters can put in it that prevents the coercion of any public employee to volunteer their time unwillingly. But I have great difficulty with either a law, or the interpretation of the law, or a regulation, that limits and unduly restricts the right of public employees to volunteer their services in whatever manner they choose to volunteer them. Anything that interferes with that right to volunteer, I take as being an abridgement of a right that is very important to people. They should not have to forego this right simply because they are public employees.

With that, Mr. Chairman, I ask to have my written statement entered into the record, and I will wait as long as I can for questions. If I have to leave, because there is an ongoing Armed Services Committee meeting that I am very much involved in, I will be glad to respond to any members of the committee that submit any questions they would like for me to respond to.

[The statement of Mr. Bateman follows:]

WRITTEN STATEMENT OF THE HONORABLE. HERBERT H. BATEMAN, A REPRESENTATIVE OF CONGRESS FROM THE STATE OF VIRGINIA -- SEE

APPENDIX E

 

Chairman Ballenger. Without objection, your statement will be included in the record.

Next, Chief Larry Curl. Chief, go ahead.

 

STATEMENT OF LARRY CURL, CHIEF, WAYNE TOWNSHIP FIRE DEPARTMENT, INDIANAPOLIS, INDIANA, REPRESENTING THE NATIONAL VOLUNTEER FIRE COUNCIL

Chief Curl. Good afternoon, Mr. Chairman, and honorable members of the Workforce Protections Subcommittee. It is an honor to testify before this subcommittee on the Fair Labor Standards Act and its effect on the volunteer emergency services all across our great Nation.

My name is Larry Curl and I am the fire chief of the Wayne Township Fire Department, located on the west side of the city of Indianapolis, Indiana. My department is a volunteer department of substantial size and activity. My testimony before the subcommittee today is on behalf of my department and the National Volunteer Fire Council, an organization representing America's 838,000 trained, professional volunteer men and women in our Nation's fire and emergency services.

As volunteers continue to serve our Nation, we do so at a dollar savings to our taxpayers of over $36.8 billion, annually. Additionally, we encourage the assistance of, and we offer assistance to, the 200,000 trained professional, paid men and women that make up the career force of the tradition that we call firefighting. Together, our strength is over 33,000 fire departments and greater than one million service providers nationwide, all with one common desire: a desire to provide a service to a person in their time of need.

In September of 1993, the Department of Labor issued a ruling under the Fair Labor Standards Act that stated that paid firefighters could not volunteer their services while off-duty, without considering those hours as requiring overtime compensation. Their ruling was broad-reaching in that it stated that an individual could not be a paid employee of a public agency and still volunteer their time to that public agency, if they were performing the same duties as they were being paid for. This ruling has had a very strong emotional impact on the volunteer fire personnel, and a severe financial impact on the communities that they protect. Prior to this ruling, many members of the emergency services operated as both career and volunteer firefighters within a single tax base. Countless numbers of man-hours have been lost daily through the interpretation of the Fair Labor Standards Act. Many communities have lost most of their volunteer staffing, caused by the full-time employment of their members proudly working in the community where they live, yet still having a desire to serve as a volunteer.

As a 29-year member of one America's largest volunteer fire departments, we are attempting to develop an incentive program for our membership. This is a reward of sorts for the huge amount of time given to our community in what we call stand-by time, the time that is actually spent standing by at the station in readiness for immediate response to an emergency call. Often the time spent by our volunteers reaches far beyond our requirements for membership which is 12 hours per week. The problem is that if we reward our members for their service we could force them to give up their status as volunteers and then we must treat them as employees under the Fair Labor Standards Act.

My concern is that as a member of the volunteer department for 29 years, if my department chooses to reward me, I may fall under the guidelines of the Department of Labor, even though I am very much willing to volunteer my time. When does a person's rights become violated rather than protected? Why should I not be allowed to perform any community service, volunteering my time for the betterment of my community and my family? The Fair Labor Standards Act does not allow the flexibility for a volunteer department to accomplish these goals. We need to amend this law to give the volunteer fire departments the flexibility they need and deserve to continue doing the good work that they do.

The Nation's volunteer domestic defenders understand that there must be some protection for our brothers and sisters that provide emergency services on a career, or paid level. We choose to support that effort. We seem to have some difficulties when the members of the career service choose to support our Nation's volunteers and are refused or rejected because of the interpretation of the Fair Labor Standards Act. Mr. Chairman and members of the subcommittee, we respectfully request that you revisit the Fair Labor Standards Act to review the provisions that would allow trained, qualified and willing emergency service providers, regardless of their employment, to continue offering what our Nation was built on and supported by, and what caused us to grow as a Nation of volunteerism.

We ask that you, the members of the subcommittee, look closely at the effects that the Fair Labor Standards Act has had on many of your own communities throughout America. We hope that we can work together to resolve these concerns. I thank you for the time you have given me. I hope that I have given you yet another perspective. I want to leave you with this last comment, ``Volunteerism American Style is not going out of style.'' Thank you.

[The statement of Chief Curl follows:]

 

WRITTEN STATEMENT OF LARRY CURL, CHIEF, WAYNE TOWNSHIP FIRE DEPARTMENT, INDIANAPOLIS, INDIANA, REPRESENTING THE NATIONAL VOLUNTEER FIRE COUNCIL -- SEE APPENDIX F

Chairman Ballenger. Thank you, Chief Curl.

Chief Scott, you may begin.

 

STATEMENT OF GARY C. SCOTT, CHIEF/ADMINISTRATOR, CAMPBELL COUNTY VOLUNTEER FIRE DEPARTMENT, GILLETTE, WYOMING, REPRESENTING THE VOLUNTEER CHIEF OFFICERS SECTION, INTERNATIONAL ASSOCIATION OF FIRE CHIEFS AND THE WYOMING FIRE CHIEFS' ASSOCIATION

 

Chief Scott. Mr. Chairman and members of the subcommittee, my name is Chief Gary Scott. I represent the Campbell County Volunteer Fire Department, the volunteer section of Chief Officers of the International Fire Chiefs' Association, and the Wyoming State Fire Marshall's Office. I manage a department that is a combination department with 15 career employees and 200 volunteers, located in northeast Wyoming.

My concerns with the Fair Labor Standards Act, on which my comments have been submitted, can be summarized by our struggle that we are currently having in our community. Because we are a joint powers board and we cover the city and county, we provide protection to 33,000 people in our community. Because our funding base comes from the city and the county and we cover the 5,000 square miles that we live in, our deputy sheriffs and our city police officers may no longer volunteer to be firefighters because of like and kind work being funded by a similar tax base.

Likewise, my career firefighters may not volunteer to be emergency medical technicians with the local ambulance service, nor may they volunteer with the sheriff's department because of the like and kind duties' in a similar tax base. To complicate the issue sir, I have two stories I would like to relate to you.

One is about Battalion Chief Larry Haselwood, a volunteer with our department for 25 years. He is a mechanic for the Campbell County Park and Recreation Department. When needed, he is allowed to leave his job with uninterrupted pay and respond to an emergency. Because of the FLSA regulations, we are in danger of losing his experience for any emergencies that may occur during the workday. Literal application of the standards require that Chief Haselwood be paid for all of his time, day and night, since this would be considered part of his county job responsibilities. This issue specifically affects virtually every volunteer fire department in America.

The second story I would like to relay sir, is about our cadet program, sponsored by Captain Jeff Wagoner, a local junior high school instructor and volunteer firefighter. The program currently provides 38 youngsters with the opportunity to learn about emergency services and the value of donating their time to our community. Since 1991, this program has provided us with 21 competent, community-oriented individuals who serve as volunteers. Because our school system is supported by county taxes, and the fire department receives 80 percent of its funding from the county, his expertise as an instructor and dedication to working with our youth may be jeopardized by the FLSA.

Likewise sir, the FLSA impacts on how we deal with volunteers who may be employed because we are a ``pay on-call, minimal compensation department.'' We become their sole source of income, and therefore we create an employer-employee relationship. Those folks are no longer allowed to volunteer, as well. We have the same issue with our college students who make the majority of their funding levels that come from their on-call pay in our program and they may not be able to volunteer, as well.

Sir, my comments can be summarized by saying that each community has the responsibility to provide a satisfactory level of fire service to their citizens. Local governments should have the power to evaluate those services and balance those demands with available financing. The Federal legislation has hampered individuals' rights to choose how they spend their time and how they contribute to their communities. Many fire departments are caught between strict compliance with FLSA requirements and providing necessary services.

Actually, sir, the very essence and spirit of volunteerism could be threatened by the interpretation of the Fair Labor Standards Act. It is our stance that people should have the right to volunteer their time and their talents to their communities in a manner that they choose. Thank you.

[The statement of Chief Scott follows:]

WRITTEN STATEMENT OF GARY C. SCOTT, CHIEF/ADMINISTRATOR, CAMPBELL COUNTY VOLUNTEER FIRE DEPARTMENT, GILLETTE, WYOMING, REPRESENTING THE VOLUNTEER CHIEF OFFICERS SECTION, INTERNATIONAL ASSOCIATION OF FIRE CHIEFS AND THE WYOMING FIRE CHIEFS' ASSOCIATION -- SEE APPENDIX G

 

Chairman Ballenger. Thank you, Chief Scott.

Now, our last witness, Mr. Nesbitt, you may begin.

 

STATEMENT OF FREDERICK NESBITT, DIRECTOR OF GOVERNMENTAL AFFAIRS, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO, WASHINGTON, D.C.

 

Mr. Nesbitt. Good afternoon, Mr. Chairman. My name is Frederick Nesbitt and I am the Director of Governmental Affairs for the International Association of Firefighters, which represents more than 225,000 paid professional firefighters. I am here today to register our strong opposition to any legislation that would deny the Nation's firefighters crucial protections granted under the Fair Labor Standards Act. I believe, Mr. Chairman, we have discussed this a couple of times before in hearings.

I must admit to being at a loss to understand why anyone would want to single out America's firefighters for an attack of this nature. They risk their lives every day to protect the safety and property of their fellow citizens, and yet their reward for their selfless, dedicated service is to have members of the United States Congress propose that they, and they alone, be stripped of a fundamental workplace FLSA protection that is afforded, without question, to every other American worker. I do not believe that anyone who serves in this institution could be that mean-spirited. The only conclusion that I can draw, Mr. Chairman, is that there must be misinformation about the issue. Realizing the debates taking place over the last few years, I know there is a lot of misinformation.

The Fair Labor Standards Act has long prohibited employees from serving as unpaid volunteers for their employer. It simply ensures that the employees are actually paid for all of the hours that they work. Without it, employers would be able to evade the minimum wage and overtime requirements of the FLSA by getting employees to forego a part of their weekly pay by claiming that they are ``volunteering.'' The FLSA's blanket prohibition for volunteering for one's employer in any capacity was revised in 1985 for the public sector so that employees could volunteer for their government employer, as long as they were not performing the same types of services for which the individual is employed. The legislation also explicitly stated that the government employees could volunteer to perform their usual duties for any other jurisdiction, including jurisdictions with which their employer has a mutual aid agreement.

This was endorsed by every organization in the fire service and now, the very organizations that endorsed this back in 1985 are coming to you and asking you to repeal it. My question is, what has changed in the intervening years? Absolutely nothing. Our opponents contend that there will be no abuses because they have added a provision to their bills in the past against coercion. The language is nothing but a fig leaf that does not really address the problem.

You mentioned Montgomery County, Maryland, where they had a problem before the Department of Labor went and made them comply with the law. Professional firefighters in Montgomery County, Maryland, who did not volunteer found themselves routinely passed over for promotion. When confronted with this information, the county officials responded that firefighters who ``chose to volunteer,'' gained experience that was often the decisive factor used to determine who would be promoted. Mr. Chairman, I believe it is interesting to note who is advocating these particular arguments about the rights of professional firefighters to volunteer. It is not the International Association of Firefighters, the organization that represents the individuals. Rather, organizations that are making this argument are representing volunteer fire departments and local government officials: the very people who stand to benefit from coerced volunteerism.

The advocates of the legislation claim that the current law bars firefighters from helping out in an emergency situation. Mr. Chairman, there has not been a single instance, that I am aware of, where a fire department has been penalized or even questioned when an off-duty firefighter responded to an emergency. The law is designed clearly to prohibit routine, on-going service which is different from responding to a single emergency. Certainly during any large-scale emergency, such as a hurricane in your home state, all paid firefighters would be on-duty 24 hours a day responding. So the issue would be basically moot.

There is nothing in the FLSA that limits the ability of legitimate volunteer fire departments to operate. The only way the FLSA ban on coerced volunteerism can hamper a volunteer department is if the department relies on professional firefighters to carry out its emergency responsibilities without paying these paid firefighters. I urge the committee to protect the rights of firefighters. Is it not interesting that volunteer firefighters are not advocating changing the law so they can volunteer to work for no pay for the employer who provides them with a full-time job? They are not supporting that change today. So why do they support a change in the law for paid firefighters? It does not make sense. It is not the problem and I urge the committee not to change the law and subject paid firefighters to coercion by their supervisors and their employers. I thank you for your time, Mr. Chairman. I would be happy to answer any questions you may ask.

[The statement of Mr. Nesbitt follows:]

WRITTEN STATEMENT OF FREDERICK NESBITT, DIRECTOR OF GOVERNMENTAL AFFAIRS, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AFL-CIO, WASHINGTON, D.C. -- SEE APPENDIX H

 

Chairman Ballenger. I think, to some extent, both sides are right in this particular situation. Unless I am mistaken, somewhere along the line the interpretation of the employer and who is a government got confused. Mr. Nesbitt, we have done this issue before, so I decided to call up back home and find out how it really works in my little home county. I have 15 fire departments in my home county. I have one fully paid fire department in my hometown of Hickory. It also has 30 volunteers and 112 paid people there. That is all very simple.

Outside of the city limits of Hickory are 14 other fire departments. These firemen are paid by the city of Hickory. Half of them do not live inside the city limits. They live out in the county somewhere and up until 1985, they were pretty much the basis for the beginning of those 15 volunteer fire departments, because they had the knowledge and know-how and everything else.

The bill was passed in 1985 and then the interpretation came along. I do not know whether it was from fear of being attacked by the Labor Department, but all of the firemen that worked in the city of Hickory were not allowed the ability to volunteer outside the limits of the county. Now you are talking about Montgomery County, which is heavily populated and very closely knit. I am talking about Hickory, a place where there is 15 or 20 miles between each fire department.

I think it was an interpretation from either the State of North Carolina or the local fire department, that told these guys they could not volunteer outside the city limits because they were in the taxed area of Catawba County, which is the county that contains Hickory. Every one of them was funded by money that was collected by the Catawba County commissioners, so they all had the same pay base. That interpretation was delivered to them saying that they could no longer volunteer.

I think that that is what the three of us are talking about. You are talking about forced overtime. I do not think that anybody on our side even thinks that is the problem.

 

Mr. Nesbitt. Mr. Chairman, if I may, I do not know where that interpretation came from, but as I understand the law and the agreement that was reached in 1985, and as I understand the way the Department of Labor continues to interpret that law and apply it up to today, the firefighters who are employees of the city of Hickory, North Carolina, under the Fair Labor Standards Act are allowed to volunteer for any of the volunteer fire departments outside of Hickory, North Carolina.

 

Chairman Ballenger. That is what I would think, but that is not what happened.

 

Mr. Nesbitt. Even if there is a paid department out in that county and they are a paid firefighter for Hickory, they could be a volunteer in the paid department out there because the law does not say anything about tax base. It simply says...

 

Chairman Ballenger. Government. It says ``government.''

 

Mr. Nesbitt. Everyone is phrasing it as a tax base. It really goes down to performing the same duties for the same employer.

 

Chairman Ballenger. Well, again you go back to, what is an employer? Is an employer somebody that pays the operational expenses of a fire department? If that is true, the county itself pays for the city of Hickory for some fire protection and for the other 14 departments. I am not sure that this legally ever occurred, but I think it scared everybody to death. So it is now the feeling of most of the people and these two gentlemen that I am talking to, that you can't do that anymore. You are restricted from ever having the opportunity to help outside your own city limits.

 

Mr. Nesbitt. In our experience the law has not been applied that way and we do not think that is a proper application of it.

 

Chairman Ballenger. I agree.

 

Mr. Nesbitt. There is clearly one employer from whom you get a paycheck. If the argument that a government employee could not volunteer for any organization receiving state or federal funds, then nobody could ever volunteer because so many organizations receive funding.

 

Chairman Ballenger. Let me, if I may. As Chief Scott was reciting what was going on in Wyoming, you sat there and shook your head no. I think he and I are interpreting it the same way. You are a Washington, D.C. lawyer so you know, but we do not.

 

Mr. Nesbitt. Please, Mr. Chairman, I am not a lawyer.

 

Chairman Ballenger. Oh, excuse me.

[Laughter.]

 

Mr. Nesbitt. Please do not do that to me. I know that last time I called you a liberal, so I apologize.

[Laughter.]

I was shaking my head ``no'' because he was saying that the prohibition of someone volunteering was based on the same tax base. My argument is that it is not based on the tax base; it is based on who the employer is and performing the same duties for which you are paid.

 

Chairman Ballenger. Let me ask you a question then. Would you, or anybody else, mind if the law were written in such a way that it would not preclude someone from serving outside their governmental area as a volunteer and written so that those with no Washington connection could understand it? I am not talking about me personally; I am talking about North Carolina and all the other county fire departments.

Mr. Nesbitt. Mr. Chairman, I think the law says that very clearly.

 

Chairman Ballenger. Our lawyers do not seem to think so.

 

Mr. Nesbitt. All over the United States our members volunteer in other departments.

 

Chairman Ballenger. You have got Indiana and Wyoming represented here. Who are you arguing for? You have got three states disagreeing with you right here.

 

Mr. Nesbitt. Well, I am not familiar with their specific situations. I think the law is clear and I can cite you thousands of examples across the United States, in this area or any state you want to go to, where people work for one jurisdiction for an employer of that jurisdiction and the volunteer in another jurisdiction. Sometimes it is for the paid department; sometimes it is a combination or a fully volunteer department.

 

Chairman Ballenger. Okay. I think that my time has run out. I did not mean to leave you guys out. I wanted to throw my home problem, which is the same as your home problem, at somebody that is supposed to know the rules. You probably do know the rules and regulations. But those of us that live outside of the city of Washington, D.C. have a hard time trusting the Labor Department to interpret the Fair Labor Standards Act in a way that would allow us to do what you think we are allowed to do.

With that, Iíll turn to Mr. Owens. Marty was here first, but do you want to go first?

 

Mr. Owens. Yes, I do.

 

Chairman Ballenger. Fire away.

 

Mr. Owens. I think Catawba County needs a new lawyer.

[Laughter.]

Maybe we can get a volunteer lawyer from Washington to go down there. Or, Mr. Chairman, in the spirit of bipartisanship, let us sponsor an amendment, which clarifies the issue. I did not think that we were here to discuss the issue of who is an employer. Surely we can find a way to clarify that, if that is a problem. I think the problem is, as I have said before, and it may not seem so to the people who are the sponsors of this amendment, but it opens the door to an erosion of the overtime pay provisions of the Fair Labor Standards Act. Now, once you do this for firemen, then it is the police. There are a whole lot of people, I think, that this argument would apply to.

More than ten years ago, the New York City Police Department Union financed a study to support their demands in labor negotiations. They were already considered New York's finest. Everybody understood they did a dangerous job, but they wanted to prove that they had the most dangerous occupation in America. When the study that they financed was over, it concluded that the most dangerous occupation in America was firefighting. We ought to reflect on that a bit. Volunteers certainly ought to have professional training. There will always be a mixture of volunteers and professionals.

It is a very dangerous occupation and that deserves consideration. I think we have lost about four firefighters in the last 12 months in New York. Three of them certainly died in fires that had nothing to do with high-rise buildings. It was just a regular building that you might find anywhere in America. It might be one of the problems in terms of employers or governments, whether they are counties or municipalities, attempting to save money by pressuring, or the danger that they may pressure more of their professional firefighters to volunteer.

Mr. Nesbitt, is there any aspect of this issue other than the coercion of firefighters that concerns you?

 

Mr. Nesbitt. The other aspect that concerns me is that our members work traditionally anywhere from 56 to 66 hours a week. It is a very long workweek. It is a very intense workweek. One-third of our members are injured every year. Our members die at a younger age because of health risks and exposures. My great concern is the health impact.

If you took a young person who was working in a grocery store and you said that they could volunteer to work past their normal 40 hours, they would work four or five hours stocking the shelves and there would be no great health dangers. But when you talk about a firefighter who has already worked, let us say 60 or 66 hours, and you are going to let that person, or coerce that person, to volunteer another six or eight hours, you are exposing them to more smoke, more toxic fumes, more stress, a greater likelihood that they could be injured on the job. They could be killed on the job or cause someone else to be injured because they are tired and not able to function fully. So, there is a tremendous health risk associated with this particularly when you are talking about volunteering for your employer.

 

Mr. Owens. I was just handed some statistics that I requested. Again, it is quite sobering. In 1995, the only year for which we have the statistics, 63 volunteer firefighters died and 33 professionals died. That is a very sobering statistic. Most of the volunteers died due to heart attacks on the scene where they were fighting the fires.

There are some serious issues here beyond the overtime issue. Maybe we should be discussing this in connection with OSHA. Maybe communities across the country ought to consider how they mix their volunteers and professionals. We should seek to get more professionalism in firefighting, if to do nothing else but to spare the lives of people who are engaged in this.

Chief Scott, do I understand that one of the reasons you want professional firefighters to perform their normal duties without pay is to save money for the municipality and the employer?

Chief Scott. No, sir, I did not indicate that. Sir, my point was that because our emergency services all respond together, we are a county fire department, which means we collect city/county taxes. We respond to automobile accidents and any other nature of emergencies. My firefighters do not have an opportunity to volunteer back into any emergency service in their community. It is true, sir, we could go to another county and volunteer if we would like to travel 185 miles, one way, to the next community. My simple point is, sir, because it is like and kind work and a similar tax base, our career firefighters cannot volunteer for the volunteer ambulance service. Nor can they volunteer for the sheriff's office and be a part of the search and rescue team, because when they are on-duty they may, in fact, respond to those kinds of incidences.

 

Mr. Owens. Well, I am surprised to hear your answer that money is not a concern, because the fact sheet from your organization has a statement which says, ``The Department of Labor ruling also drives up local government costs.'' That is one of their objections to it. I am out of time at this point.

 

Chairman Ballenger. Mr. Boehner.

 

Mr. Boehner. Thank you, Mr. Chairman. Let me follow up on your example and the point that Congressman Owens brought up. That is, if we were to define more accurately the direct employer, would that solve the problem that we are trying to address here?

Chief Scott. Well, it certainly addresses my issue. I do not think it addresses everything that is involved within the discussion. But the things like police officers being able to volunteer for the fire department or firefighters being able to volunteer for the sheriff's department and/or emergency medical technicians would certainly be a step in the right direction.

Our firefighters are compensated for all the time that they are on fire lines. They are compensated for mandatory training. I consider that to be a part of their job. I am not contesting that issue. All of our career firefighters were hired out of the volunteer ranks. Now, everything that they would do within that organization could be considered compensatory time, whether they attend a volunteer meeting, or they go to a truck company drill and simply participate. It is so restrictive for those individuals. I am not talking about actually being on the fire line or duty shift or mandatory training, but the other activities within our communities that make up a big basis of what we do in our communities, could also be interpreted within this regulation as compensatory time.

I think that this is my issue, even as a career firefighter. However, I am exempt so this does not apply. I have firefighters that would like to be down with the volunteers doing the fundraiser activities or participating in the truck company which may not be their assignment. As the law stands right now I have a choice. I either compensate them for that time or I send them home. In a combination department, which is what our community chose to have because that is what we could afford, we are not able to even keep the department together like that, unless we pay out massive amounts of overtime. I am not really arguing the overtime issue in terms of suppression, mandatory training or anything like that, in my particular case. I am certainly saying that it is so restrictive that it does not allow us to operate a combination department.

Additionally, sir, I point out that at least the interpretations that I have, and several other attorneys that have reviewed it with our legal counsel have, is that some consideration of whether a combination fire department, which is a governmental entity which displaces employment opportunities, is a legal entity within our Country. I think the whole thing needs to be looked at from that respect.

 

Mr. Boehner. Certainly I have got some questions for my own fire department when I get home this weekend. Having been a local township trustee when we had an all-volunteer firefighting force, to a force now that is a combination of full-time and continuing to have volunteers, many of the full-time firefighters were volunteers at one time. I am trying to understand in my own community how this is working. Because to my knowledge, this has not been raised as a problem. It may be, but they just have not brought it to my attention. Chief.

 

Chief Curl. Yes, I think your are exactly right Congressman. It is a problem under the law if you interpret the law or understand the law. But for many of us, we do not understand that law and therefore, because of our ignorance, we are not concerned about it. So, we continue to do the things that we have done day after day to provide protection to our communities, when, in fact, we may be in violation of the law, if the law was truly understood and enforced.

One of the big concerns we have in Wayne Township is, just as you said, we have many of our volunteer members who have started to work in a support capacity in training or communications or in education for our department, who are now prevented from volunteering their time to serve the community that they live and work in, because of the Fair Labor Standards Act.

 

Mr. Boehner. Mr. Nesbitt, you have something that you wanted to add?

 

Mr. Nesbitt. I just wanted to say, Mr. Boehner, that, first of all, you can clarify who the employer is. We thought it was pretty clear. Obviously, someone hires you; someone pays you; someone fires you. So, we think the employer is pretty clear. The law also says, as I have in my testimony, ``the same type of services which the individual is employed to perform.'' Which means that if you had a public safety department, which is both fire and police and you were a police officer, our understanding is that you could volunteer to be a firefighter because it is not the same service which you are employed to perform, and vice versa.

So we do not think there is a problem. We think that some people have taken the easy way out and said, ``This is awfully confusing; we do not want to deal with this.'' We think it is pretty clear.

 

Mr. Boehner. If I could just ask a short question? Do you see any conflict between what your version of the law is in your opinion and the ruling from the Department of Labor?

 

Mr. Nesbitt. No, we do not. We think that the Department of Labor has applied the law appropriately and correctly. The big case referenced is Montgomery County Maryland, where there was a situation where the county was actively recruiting paid firefighters to be volunteers and it dealt with an overtime issue. It is a long history and we can certainly go into it someday, but it was a clear violation. They were told to obey the law as it was written and they are in compliance with the law now.

 

Mr. Boehner. Thank you, Mr. Chairman.

 

Chairman Ballenger. Mr. Martinez.

 

Mr. Martinez. Thank you, Mr. Chairman. I join with Mr. Owens in saying, because the real problem seems to be here a clear interpretation of the law as is being understood by the people in the departments, that if you want join with us in a bipartisan effort to have an amendment that clarifies that, I would be perfectly willing to along with that.

 

Chairman Ballenger. Could I ask somebody like Mr. Nesbitt, or somebody that is knowledgeable about the law to give a suggestion? I think we can solve the problem, it appears to me.

 

Mr. Martinez. I hope you are not deducting this from my time. But if you are suggesting that we have solved the problem by introducing a piece of legislation that repeals the law, that is not a solution. That would do more harm than it would good. The fact is I get mixed signals here, from even the witnesses that are here today.

From your testimony, Chief Curl, it is obvious you want people who work within your department doing that service to be able to volunteer that service. That is what your testimony has indicated.

Chief Curl. I would offer to you that the people who work for our department in support capacity should be allowed to volunteer in that department in firefighting capacity. Yes, I do.

 

Mr. Martinez. Exactly. And that is what the law prohibits because of the danger of coercion. And there was a compromise worked out, as Mr. Nesbitt has said, in 1985 that seemed to satisfy everybody at that time. Now, at this point in time because of financial restraints or something else, that compromise is being threatened. Let me ask you this. In the township of the fire department that you are here representing, is that a subdivision of the city of Indianapolis?

Chief Curl. It is a separate taxing district of the city of Indianapolis, outside of the city of Indianapolis.

 

Mr. Martinez. Is it under the jurisdiction of the governing body of Indianapolis?

 

Chief Curl. No, it is not.

 

Mr. Martinez. It has its own governing body?

 

Chief Curl. Yes, it does.

 

Mr. Martinez. What is the makeup of that: city council, alderman?

 

Chief Curl. Township trustee.

 

Mr. Martinez. Town trustees. How many are there?

 

Chief Curl. One trustee and a board.

 

Mr. Martinez. And the board consists of how many people?

 

Chief Curl. Seven members.

 

Mr. Martinez. Are they the policy-making people for this township?

 

Chief Curl. They are the governmental agency for this township.

 

Mr. Martinez. So they are the policy-making body for this township?

 

Chief Curl. Yes, they are.

 

Mr. Martinez. Are they in support of your position here today?

 

Chief Curl. We are a volunteer department contracting with the township trustee. Are they in support of our position? They are in support of us being able to provide volunteer service to our community.

 

Mr. Martinez. But they are not necessarily in support of your position of repealing the law?

 

Chief Curl. I am not sure whether they are or not, sir.

 

Mr. Martinez. I think that if you are a contract agency for a township that has a governing body, before I went anywhere and gave testimony on repealing the law, I would find out if that township had felt one way or the other. I would resent very much our fire chief in the city that I was a mayor of, Monterey Park, coming before a Federal body and stating a policy or a position that was contrary to the position that that city council took. I think any jurisdiction would be the same. Let me understand your position.

 

Mr. Boehner. Will the gentleman yield? There are a lot of smaller communities around the country that do not have a firefighting force at all and a group of people will come together and form a volunteer organization and supply service on a volunteer basis to that area.

 

Mr. Martinez. In this case, I got the indication that if you are under contract to provide a service, somebody is getting paid. You are getting paid?

 

Chief Curl. Not as a chief officer. I am not getting paid in the fire department.

 

Mr. Martinez. You are not getting paid at all, no salary at all?

 

Chief Curl. Not as a chief officer.

 

Mr. Martinez. How do you make your living?

 

Chief Curl. I work in the administrative portion of this fire department, but not as a chief officer.

 

Mr. Martinez. You make your living in that administrative position?

 

Chief Curl. I am elected by the members of my department to serve as a volunteer.

 

Mr. Martinez. Sir, I would suggest that you are being devious in your answer. The actual fact is that you are getting paid to administer this particular volunteer force that is under contract to the township.

 

Chief Curl. No, I am not.

 

Mr. Martinez. Let us not belabor that. Let me go on to you, Mr. Scott. Chief Scott, let me understand your position. Your position, it says on the testimony you provided, that you are the Volunteer Chiefs' Officers Section of the International Association of Fire Chiefs. Is this regular fire chiefs, or volunteer chiefs?

Chief Scott. It is a mixture, sir. Are you talking about the board specifically?

 

Mr. Martinez. Yes.

 

Chief Scott. It is a mixture. All of us are volunteer fire chiefs and/or represent volunteer departments.

 

Mr. Martinez. Now in your jurisdiction are you a volunteer fire chief?

 

Chief Scott. No, sir. I am the paid administrator.

 

Mr. Martinez. You are a paid administrator. For who, the fire department in that local entity?

 

Chief Scott. For the joint powers board, 15 career personnel, 200 volunteers.

 

Mr. Martinez. But not for the professionals that work there?

 

Chief Scott. Sir, I consider my entire department to be professional, both our career and our volunteers maintain standards.

 

Mr. Martinez. I am not meaning to challenge your being a professional. For the distinction of what we are talking about here, we have two classes, the volunteer and the professional firefighter that makes his living off of it. All right? Let us understand that, because that is the definition that we are working by. So, in that case, are you the chief of the people that are actually being paid to do the fire service there, or are you the chief of the people that are volunteering their services?

 

Chief Scott. I am the administrator for both sir, both the career and the volunteers; the entire fire department.

 

Mr. Martinez. The regular fire department, not including the volunteers, is how many people, in that jurisdiction?

 

Chief Scott. There is 15 career and they support 200 volunteers.

 

Mr. Martinez. Okay, the 15 career, they do not have a full-time fire chief appointed by the township or their governing body?

 

Chief Scott. No, sir. I am the administrator for the entire fire department.

 

Chairman Ballenger. They are doing it differently than they are doing it in California, Marty.

 

Mr. Martinez. Yes, I see they are doing it differently all over the country. That is one of the problems that we have when we pass laws here. We cannot pass laws that give each little individual township or locality their personal desire.

 

Chairman Ballenger. But there are more of them than there are of Los Angeles and New York. I do not want to get into an argument, so let me turn it over to Lindsey. I think your time is up. Congressman Graham.

 

Mr. Graham. Thank you. Mr. Martinez, if you wanted to keep asking questions, I will yield to you. Is there anything you wanted to ask?

 

Mr. Martinez. No, I think it has pretty much all been answered.

 

Mr. Graham. Tell me about it. Chief, is it ``Curl''? You said that people who work in a support capacity should be able to volunteer. What is a support capacity?

 

Chief Curl. I am employed by my fire department in purchasing. Our job is to actually search out and acquire that which is used in my fire department, on an administrative basis. As a 29-year member of that department, I volunteer my time in the firefighting and the emergency services aspect. I am elected by our 400 members to serve as their chief. My job with that fire department is in an administrative capacity. I do not serve on a payroll in firefighting or emergency services. My concern is that the interpretation of this ruling should be, has to, and it would be reasonable that if I worked in less than a firefighting capacity, I should be able to volunteer back to my same community that I live in.

 

Mr. Graham. Okay. Mr. Nesbitt, Chief Scott's situation seems be to pretty common, at least in South Carolina where you have a few paid folks managing a lot of volunteers. How common is that in your experience, throughout the country?

 

Mr. Nesbitt. Across the country there are a number of what we call ``combination departments,'' where they have a set number of paid firefighters and a number of volunteers. They operate together, usually under the same command structure, same communication, same dispatch, everything. Then they respond jointly to an emergency.

 

Mr. Graham. Would it be fair to say that you would have no problem in a situation of a combined group, where the paid firefighter could go to the next county or the next governmental entity? Would that be okay?

 

Mr. Nesbitt. Yes. As the law was written; as we understood it and as it has been applied across the United States, if you work in a jurisdiction as a paid employee, you can go to a different jurisdiction whether it is all-paid, all-volunteer or combination and be a volunteer firefighter.

 

Mr. Graham. Have you ever had an occasion where two county administrators would get together and say, ``I'll send you my people and you send me yours''?

 

Mr. Nesbitt. I am not aware of any situation like that.

 

Mr. Graham. I guess coercion could exist, even under that situation.

 

Mr. Nesbitt. Possibly, yes.

 

Mr. Graham. Now, in terms of coercion, how real of a problem do you think that is in a combined unit?

 

Mr. Nesbitt. In a combined department? I don't think the coercion issue necessarily goes in a combined department, because you obviously have paid firefighters and you have volunteer firefighters. They are different people. The coercion really comes in where if you allowed a paid firefighter, after he or she goes off the clock, to volunteer back the exact same services back to their employer for no pay. That is where the coercion could come in.

 

Mr. Graham. But, in a combined unit it seems to be that people work together closely and this is sort of a way of life. It is not just a job. That has been my experience. Policemen and firemen and emergency technicians, have got to be tied them down when the siren goes off. That is what makes them good at their job. Let us make sure the law does not punish people unnecessarily, if they want to help. How do you propose we get around this in a combined unit?

 

Mr. Nesbitt. Well, I do not see that there is a problem in a combined department. I mean, for the 15 firefighters who are paid firefighters, this is a job. They go to work. They report for duty. They are paid under the Fair Labor Standards Act. For the first 53 hours they get straight time; after 53 hours they are entitled to time-and-a-half. They traditionally work a 24-hour shift. For however many hours you work them, you pay them accordingly.

The volunteers, on the other hand, they volunteer. They are not compensated. So there is no problem and no confusion.

 

Mr. Graham. The problem is for somebody who wants to do it, not forced to do it. We just say ``no'' to them because of the problems that may be created otherwise.

 

Mr. Nesbitt. Again, the key is: for the same employer, for the same services for which they get paid.

 

Mr. Graham. But you have no problem if they work for another entity in a volunteer capacity?

 

Mr. Nesbitt. No. It happens all across the country. Just recently in Texas we had two paid firefighters who were volunteer firefighters in a community outside the city, who were killed in a fire about two weeks ago. They were paid firefighters, I believe, in San Antonio, but they were killed in volunteering in a department outside the jurisdiction, which is quite legitimate under the law.

 

Mr. Graham. How many complaints a year does your union get about somebody feeling they may be coerced to volunteer?

 

Mr. Nesbitt. I do not have any record. Again, lots of times it is very subtle. It is not open and blatant. It is not like somebody pointing a finger at you and saying, ``You either volunteer or else.'' But there is an atmosphere created, such as I quoted in Montgomery County. Paid fire fighters were told, ``If on your day off you are willing to come in and help with the new recruits in terms of testing them, physical testing, written tests and work for a number of hours for no pay, a letter will go in your permanent file saying that you did this. And when it is time for promotion, that letter will be considered in whether or not you are promoted from a lieutenant to a captain.'' Well, that is coercion.

What it does is creates in the minds of a lot of people that, ``Either I had better do it,'' or ``Geez, maybe if I do that, volunteer to work for no pay, maybe I will get promoted faster. Maybe I will move up the ranks much faster.'' It creates a very adverse atmosphere.

 

Chairman Ballenger. Ms. Woolsey.

 

Ms. Woolsey. Thank you, Mr. Chairman. What is missing in that picture up there? What is missing is that the firefighter, the paid firefighter coming along sitting in one of those chairs and saying, ``Yes, indeed, I want to work my full schedule. Then I want to volunteer with my existing employer and I do not want to get paid for doing the same work.'' That person is not there. In order to even begin to believe that firefighters want to do that, we needed to hear from somebody.

You know, you want to make a change and something needs to happen. Somebody will say ``well, that will take an act of Congress.'' Well, it should not take another act of Congress to define what is an employer. I mean, an employer does the hiring; sets the pay; carries out the performance evaluations, the training and firing if that is necessary. There is no question what is an employer. We know what an employer is. We all know that under the same employer you can't volunteer. We can't have our non-exempt employees in our office stay and work long hours and say, ``Oh well, I was just volunteering my time.'' No way. We pay them overtime for that time. That is just part of the Fair Labor Standards Act.

So I would like to ask a question of our chiefs. Is there is shortage of volunteer firefighters in this Nation or in your communities? Are you having trouble recruiting?

Chief Curl. The answer to that, Ma'am, is yes. There is a shortage of volunteers. Yes, there is a problem with recruiting. It complicates that issue, whenever we try to regulate or issue legislation that dictates what a person can or cannot do with their free time.

 

Ms. Woolsey. Well, would you consider that maybe communities need to look at consolidating their fire departments? Maybe there are too many small departments. Maybe you need one that works for a greater jurisdiction. Possibly, the community needs to step up to the fact that they need to be funding their fire services, their safety folks.

Chief Curl. I will yield that to my colleague, Gary Scott.

 

Ms. Woolsey. All right, Mr. Scott.

Chief Scott. In response to your first question, our community does not have a problem with recruiting volunteers. At the present time, and I am excluding any career firefighters in this statement by the way, we are having a heck of a time keeping them because of the city administrators. I am very knowledgeable about the Fair Labor Standards Act, and I have had it interpreted by a number of attorneys in order to ensure that_

 

Ms. Woolsey. Excuse me, you can't keep them because somebody else can't get paid to do their job; to do the volunteering?

 

Chief Scott. No, Ma'am. I am talking about the schoolteacher who comes down and runs our cadet program, for example. The school district says that this is like and kind work.

 

Ms. Woolsey. Well, that is not what this law says.

 

Chief Scott. But it is a very real issue to me. I am losing people. It is a very real issue to me.

 

Ms. Woolsey. No, it is not. Do we need an act of Congress so that you can understand what the Fair Labor Standards Act means?

 

Chief Scott. No, Ma'am. It is your rule. It is how they have been interpreted for us. We are losing people. That is the bottom line. And in terms of consolidation, I would say that as you consolidate you serve on a more regional basis. That is, in fact the trend. I would also submit to you that because of regionalization, we are doing nothing more than complicating the problem. If Campbell County was not a regionalized fire department, city and county, then my career people could go five blocks down into the county, different tax base, different employer and volunteer. Right now, they cannot. Yet I run one of the most successful combination fire departments in the United States, today.

 

Ms. Woolsey. Well, Mr. Nesbitt, would you respond to my_

 

Mr. Nesbitt. I think you put your finger right on it, Congresswoman. It has nothing to do with the right to volunteer. It has nothing to do with this great concept of volunteering in America and our American heritage. It is about money. It is about cheaper fire protection and having people whose full-time job it is to be a paid, professional firefighter to work for no pay. That is why no one is talking about doing this as it would affect Wal-Mart. No one is talking about doing this, changing the law as it would affect other employees. So why are they talking about having professional firefighters volunteering for their same employer for no pay?

 

Ms. Woolsey. My time is up. Thank you.

 

Chairman Ballenger. Mr. Barrett had to leave. Ms. Sanchez.

 

Ms. Sanchez. Thank you, Mr. Chairman. I am thinking about everything that I have heard today and reading some of this testimony. I am trying to relate it to the area that I come from which is Orange County, California. As Mr. Nesbitt knows, we have some major fire departments in that area: Garden Grove, Anaheim and Santa Ana. We have a county that runs contracts to some of the smaller entities there, as well as the fact that we have national parks in the area. It seems like our firefighters all are willing and able to do a good job.

I am thinking, in particular, to the problem of Chief Scott. I think I understand the problem that you are talking about. You are saying that the employer is the entire county, and that it runs such a large span of different jobs that you have received some indication from your law department that a person that is hired by this large government entity cannot volunteer services. Is that basically what you are indicating? You got some sort of a document or some sort of a ruling from your government people or your lawyer people telling you, ``No, the school teacher cannot come down,'' or ``The firefighter cannot work out in this area as a security guard for something''?

 

Chief Scott. Yes, Ma'am. To some degree, that is one of the issues.

 

Ms. Sanchez. Okay, well. I think we can solve that problem. Because, as I read the law and as Mr. Nesbitt has elaborated on it, it should not be that way. So, if you could get this committee or me a copy of whatever this legal entity is saying to that effect, I think we would have a good chance to clear that up. I also understand what you were saying about the consolidation; that it gets longer for someone to go volunteer their time.

If you could give us that in writing, we could contact them. We could deal with it. We could see what part of the law they are so unclear on, with respect to being able to volunteer, even with your same employer as long it is something different other than the services you are being paid for during your regular workday. So, we may be able to solve, directly, your problem without having to put forward something to the House of Representatives and the Senate, and for signature by the President.

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Ms. Sanchez. We do not seem to have that kind of a problem out in Orange County. I have seen plenty of people volunteer, for example, to firefight. We have a lot of fires. Most people think California is a nasty place because of the possible earthquake that could occur. The reality is that we have a bigger fear in southern California of wildfires. We have them, in particular, because we have a large amount of people very close to very natural areas. So, in Orange County, we have the problem of wildfires going crazy on us. I know of many departments that send their workers out in an emergency, even though it is out of their jurisdiction, and those workers get paid for that time. In fact, there is a cooperative agreement between entities. I also know that there are some firefighters, especially when it comes to the natural areas, that go and volunteer their time even though they might be an employee of the city of Anaheim, for example. They go to the National Cleveland Forest and they fight a fire there. We do not seem to have this problem.

I will also tell you that most of my firefighters love their spare time. They do not tend to say, ``I absolutely have to go and volunteer my time to fight another fire.'' Most of them actually have another business and are preparing for their retirement. I have talked to a lot of my firefighters, because I work out in the morning in the same gym, and most of them have other businesses. They are asking me tips on what they can do with their second business. I do not, at least in our area, see the problem that you are talking about.

But, I guess it comes down to this: Mr. Nesbitt, could you more clearly talk to us about the claim that the current law would bar a firefighter from helping out in an emergency situation? It does not happen where I live. Could that really be happening someplace else?

 

Mr. Nesbitt. No. People have used the argument, ``Geez, if somebody was a firefighter and they were off-duty and their brother lived next door and his house caught on fire, they could not go over and help rescue somebody or pull them out of the fire because they were off-duty and would be violating the Fair Labor Standards Act.'' First of all, Congress never intended that kind of coverage.

Secondly, to my knowledge, the Department of Labor has never made any kind of application, ruling or contention. And number three, Congresswoman, if they ever did we would be the first ones back here saying you have got to change the law. It is really for on-going, regular employment where on a regular basis they require you to work overtime for no pay, by your employer. It is not a single instance. I think Mr. Ballenger and I have talked about, in the past, hurricanes hitting North Carolina or a fire in your area. When we have a major brush fire or wildfire in your area, every firefighter is on-duty, 24 hours, until the emergency is over. So there is no opportunity. The only downtime they have is when they work 18 hours and sleep 6. So, it is not a real problem.

 

Ms. Sanchez. Thank you. And I see my time is up, Mr. Chairman.

 

Chairman Ballenger. Somewhere, Mr. Nesbitt, you and I can't get to the idea that there is a problem. Maybe there is not a problem in the area in which you live. Let me ask you a question. Ms. Woolsey said that everyone knows who the employer is and I disagree with that. Do you know if in Montgomery County, did the head of the paid fire department have the authority to hire and fire people in the volunteer fire and rescue department?

 

Mr. Nesbitt. Well, I am not sure I understand what your question is.

 

Chairman Ballenger. In Montgomery County, which is the basis for everything we are arguing about, did the head of the paid fire department have the authority to hire and fire people in the volunteer fire and rescue department?

 

Mr. Nesbitt. I am not sure how to answer that question. First of all, there is no head of the fire department. There is no fire chief in Montgomery County, as I understand it. Secondly, Montgomery County was initially organized around 32, non-profit, volunteer fire corporations. The county assigned, initially, firefighters to one of these fire stations. They gave money to the non-profit fire corporation to pay for those firefighters. Then, what happened is that the Department of Labor says if you are going to do that, you must pay them after 40 hours. They are not government employees, they are employees of a non-profit organization.

 

Chairman Ballenger. They were independent contractors.

 

Mr. Nesbitt. That is correct. So, Montgomery County said, ``ah, well, if we make them county employees then we can avoid overtime costs until after 53 hours.'' You know, as an employee of the fire corporation they would have to get paid overtime after 40 hours. If they are a firefighter, they are under section 7(K) of the Fair Labor Standards Act, and you do not pay overtime until 53 hours. So they were able to make them county employees and work them an additional 13 hours before they had to pay overtime. They were cited by the Department of Labor for failure to pay overtime. I think they were assessed $2 or $3 million in back overtime pay.

 

Chairman Ballenger. Let me interrupt you for a second. As Ms. Woolsey said, everybody knows who the employer is. Before that law got changed, who was the employer?

 

Mr. Nesbitt. The employer was the non-profit fire corporation. That was the employer.

 

Chairman Ballenger. Therefore, Montgomery County had no right to fire or hire anybody.

 

Mr. Nesbitt. Well, they worked for that individual fire corporation and each of the 32 fire corporations had a separate fire chief. There was no county fire chief. The paid firefighters worked for the fire corporation, although the county gave money to the corporation for those people and assigned firefighters to different fire stations.

 

Chairman Ballenger. Now, let me ask you a question. I think Mr. Martinez said we can not pass laws for every little North Carolina, South Carolina, or Idaho district. Yet, what you just explained to me is one of the weirdest things I have ever heard of.

We changed the whole law for the entire United States because Montgomery County had a strange way of doing business. All the rest of them were getting along fine until you changed the law. I know you did not do it. Whoever did it, we all got roped in when the law changed to protect the firefighters in Montgomery County. If it had been left alone, nobody would have been affected except Montgomery County.

 

Mr. Nesbitt. Well, let me say this. First of all, you didn't change the law. What happened was the Department of Labor came in and told Montgomery County that they must comply with the Fair Labor Standards Act. Montgomery County is now complying with the Fair Labor Standards Act in terms of paid and volunteering.

 

Chairman Ballenger. Did they not have to change the whole regulation, because they were not the employer? They had no right to tell those people, ``You cannot work 48 hours. You cannot work 50 hours.'' Only the employer could.

So what I am saying is that they did not know who the employer was. So you had to get the Federal Government to come in and tell them who the employer was.

 

Mr. Nesbitt. No, Mr. Chairman. What happened was the employer was the fire corporation. Then to avoid overtime, the county made all the paid firefighters county employees and an employee of Montgomery County. So they could then work them 53 hours without paying them overtime. At that point, then the county said, ``Well, you work at this station, but we are going to allow you to volunteer at this station.'' We said, ``No, you cannot. Because now, instead of being an employee of this fire station you are an employee of Montgomery County.'' It is very clear. It all dealt with money.

 

Chairman Ballenger. Do you understand what I am saying? All of a sudden this whole weird situation for the rest of the Country was caused by some weird screw-up in Montgomery County, which is so close to Washington that there are many lawyers telling you what to do. But they do not tell us and the rest of the Country what to do. We have to wait.

These guys operate under the basis that the Labor Department is going to come and kick your tail and charge you a whole bunch of money if you do not do it right. So you get a country lawyer, Lindsey's gone, but a good old country South Carolina lawyer to read the law. He says, ``man, if you do not do it this way, they are going to come down here and nail you.'' And they do nail you. You all live right next to them here, so they leave you alone.

 

Mr. Nesbitt. What they did in Montgomery County, Mr. Chairman, is that they nailed the county for violating the Fair Labor Standards Act. They said, ``You have got to abide by the law.'' The county knows they were violating the law. They were openly and blatantly violating the law. And that is not true across the Country.

 

Chairman Ballenger. Unless Mr. Owens wants to say any more, I will turn it off. He and I already agreed earlier that if we could work out their problem we would skip Montgomery County. Let them just sit off by themselves.

 

Mr. Nesbitt. They are in compliance.

 

Chairman Ballenger. They are in compliance, but you had to change the world to get them in compliance. These guys are living in compliance and you say they are going way to far. They should be protected from having to go as far as they do. That is what we need to change.

 

Mr. Nesbitt. I think their interpretation of the law and the application of it is inaccurate. It is the way understand it.

 

Chairman Ballenger. You say you are not even a lawyer. On one hand, you are not a lawyer, so how can you say they are misinterpreting the law?

 

Mr. Nesbitt. I can say that, Mr. Chairman, because this organization was involved in the compromise that was cut in 1985 and we know what the compromise intended. You go back to the intent, it was very, very clear. We are the only group of employees, public sector employees, who are allowed to volunteer for their same employer for no pay as long as they do not do the same job for which they are paid. That is not true anywhere else.

 

Chairman Ballenger. Well, I still say somewhere along the line we need an interpretation from the Labor Department. Skip Montgomery County again. You all have got it all locked up here and you do not care what happens elsewhere.

 

Mr. Nesbitt. We certainly do.

 

Chairman Ballenger. What I would like to say is that, if you gentlemen would like, we will try to get an answer from the Fair Labor Standards Act people, to tell you whether his interpretation is the right way or the very strict interpretation that you all are living under. He has got a loose interpretation. You have got a strict interpretation. You should have the right to have the same interpretation from some lawyer here in Washington to free you up. Is that okay?

Let me just say that I want to thank the witnesses for your valuable testimony. We very much appreciate your taking the time to come and testify. If there is no further business, we will adjourn. Thank you, gentlemen, for coming.

[Whereupon, at 2:51 p.m., the subcommittee was adjourned.]