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