Does a volunteer firefighter qualify as an employee for overtime pay?

Under the FLSA, a public agency is an employer, and the general definition of “employee” includes individuals employed by a State or political subdivision. However, 29 U.S.C. § 203(e)(4)(A) expressly excludes an individual who volunteers to perform services for such a public agency when two conditions are met: the individual receives no compensation, or only expenses, reasonable benefits, or a nominal fee; and the volunteered services are not the same type of services that the individual is employed to perform for the public agency [cite:us-title29-flsa-sec203]. Your description strongly supports that exclusion. You receive no salary, and occasional reimbursement for fuel or meals appears to be expense reimbursement rather than compensation for labor. If you are not already employed by the department to perform firefighting, emergency-response, or similar services, your volunteer work falls within the statutory volunteer exclusion [cite:us-title29-flsa-sec203]. The small amounts you receive do not automatically convert you into an employee so long as they are bona fide expense reimbursements, benefits, or a nominal fee rather than pay for the hours worked [cite:us-title29-flsa-sec203]. The consequence is that the volunteer calls ordinarily are not employment hours under the FLSA and therefore do not become overtime hours at your unrelated regular job. The ordinary FLSA overtime rule generally requires compensation at least one and one-half times the regular rate for covered employment exceeding 40 hours in a workweek [cite:us-title29-flsa-sec207]. Your regular employer ordinarily measures its own workweek, and volunteer firefighting time excluded from employee status is not hours worked for that employer under the supplied provisions. If the fire department actually employs you for fire protection activities, however, the volunteer exclusion may not apply; the statutory definition of an “employee in fire protection activities” includes trained firefighters who are employed by a municipal, county, fire-district, or State fire department and perform fire suppression or emergency-response duties [cite:us-title29-flsa-sec203]. If you are employed rather than merely volunteering, the fire-protection overtime provisions may apply. A public agency is not ordinarily deemed to violate the 40-hour overtime rule when covered fire-protection employees receive the prescribed overtime compensation under the statutory 28-day work-period rule, or the applicable shorter work-period rule [cite:us-title29-flsa-sec207]. Public-agency employees may also be compensated with compensatory time under specified conditions, including an advance agreement and applicable accrual limits [cite:us-title29-flsa-sec207].