November 17, 1993
Honorable Harry E. Payne, Jr. Commissioner of Labor North Carolina Department of Labor 4 West Edenton Street Raleigh, NC 27601-1092
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 Commissioner Payne:
As discussed at our recent meeting, we have re-examined the issue of control as it relates to the employer-employee relationship required for volunteer fire departments to fall within the scope of the Occupational and Safety and Health Act of North Carolina, N.C. Gen Stat. §96-126, et seq. This is an effort to clarify how the case-by case analysis should be applied.
As you know, the 1983 and 1985 amendments to N.C. Gen. Stat. §95-148 are intended to exclude from OSHANC coverage volunteer fire departments that are not a part of any municipality or county. Because of the varied nature of fired departments in North Carolina, we have concluded that a case-by-case analysis is required to determine whether a given fire department is volunteer or whether the municipality/county and the fire department are so intertwined that an employer-employee relationship exists. We reaffirm that conclusion. However, as explained more fully below, we modify previous advisory opinions to the extent that such opinions conclude that only a minimal relationship between the municipality/county and the fire department is required to establish an employment relationship. In our judgement, control sufficient to show an employment relationship must be shown by clear and convincing evidence.
Since control is obviously the predominant characteristic of the employer-employee relationship, the federal Occupational Safety and Health Review Commission has stated that factors related to the issue of who controls the work environment should be given particular emphasis in determining whether or not an employer-employee relationship exists under the Chadwick Act. The Review Commission stated that the following factors relate to the issue of control: 1) who is responsible for controlling the employee’s activities, 2) who has the power to control the employee, and 3) who has the power to fire the employee or to modify the work conditions. Acchione and Canuso, Inc., Rev. Com. 1980, 80 OSAHRC 42/A3, 1984-1985 OSHD¶ 24, 174; MLB Industries, Inc., Rev. Com. 1985, 85 OSAHRC 42/13, 1984-1985 OSHD ¶ 27,408.
Several employment cases have also concluded that the test of employment is the common law test of control, i.e., that one is an employer if he or she has the right to direct or control the manner and method of doing the work. Cooper v. Asheville Citizen-Times Publishing Co., 258
- N.C.
- 578, 586-587, 129 S.E.2d 107, 113 (1963); Pressley v. Turner, 249 N.C. 102, 104-105, 105
- N.C.
- 434, 442-443, 101 S.E.2d 301, 307 (1958).
Additionally, the control analysis has been used by the Fourth Circuit Court of Appeals and the North Carolina Supreme Court in determining whether an employment relationship exists. In discussing whether a volunteer firefighter was an employee for Title VII purposes, the Fourth Circuit Court of Appeals noted:
"that crucial to the finding of control sufficient to make one an employee is consideration of the following factors: (1) the kind of occupation…; (2) the skill required in the particular occupation;
(3) whether the ‘employer’ …furnishes equipment…; the length of time…worked; (5) method of payment…; (6) the manner in which the relationship is terminated…; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business…; (9)…retirement benefits; (10)…[payment of] social security taxes; and (11) the intention of the parties."
Havistola v. Community Fire Co., Docket No. 93-126 (4th Cir. Oct. 11, 1993) (quoting Garrett v. Phillips Mills, Inc., 721 F.2d 979, 982 (4th Cir. 1983)). Also, the North Carolina Supreme Court held that a principal is vicariously liable for torts committed by an agent if the principal retains the right "tow control and direct the manner in which the details of the work are to be executed" by his agent. Vaughn v. N.C. Dept. Of Human Resources, 296 N.C. 683, 686, 252 S.E.2d 792 (1979).
In analyzing the relationship between municipalities and/or counties and volunteer fire department, the presence of the factors listed below will ten d to show control which denotes an employer-employee relationship falling within the scope of OSHANC. However, the presence of one or more of these factors may not be enough to establish sufficient control such that an employer-employee relationship is present.
The major factors indicating control are:
1) Ownership of the land and building which houses the volunteer fired department by the municipality or county. 2) Ownership of firefighting equipment, tools and vehicles by the municipality or county. 3) Approval of personnel decisions involving officials or the general membership of the fire department by the municipality or county. For example, this includes requiring minimum qualifications for serving as a firefighter, mandating certain training to remain proficient as a firefighter or requiring that cessation of services as a firefighter be with notice and explanation. 4) Supervising or directing the work environment of members of the fire department by the municipality or county. For example, this includes directing the activities of firefighters in battling a fire, requiring the fire department to submit reports of its activities to the municipality or county, requiring officials of the fire department to attend regularly scheduled meeting of the municipality or county or approving the fire departments’s operational plan by, among other things establishing the work hours for the firefighters. 5) Funding of the budget of the fire department by the municipality or county. For example, this includes compensating firefighters for their services, routinely reimbursing firefighters for their expenses, paying retirement benefits and/or social security taxes on the firefighters behalf, or providing workers’ compensation or disability benefits to firefighters for injuries sustained in fighting fires through the municipality or county.
The following cases tend to support the proposition that receiving payment is significant in establishing the element of control. City of Fort Calhoun v. Collins, 500 N.W.2d 822, 826-827 (ndb. 1993) (in holding that volunteer firefighters were not employees of the volunteer fired department or the city within the meaning of the Fair Employment Practice Act, the Court found that "the City neither [paid] the members of the Volunteer Fire Department nor control[led] their work"0; Tadros v. Coleman, 717 F. Supp. 996, 1004 (S.D.N.Y. 1989) (here, the Court held that the plaintiff is an employee under Title VII of the Civil Rights Act only if the defendant both pays the plaintiff and controls his work); Smith v. Berks Community Television, 657 F. Supp. 794 (E.D. Pa. 1987) (volunteers who received no direct or indirect financial benefit, fringe benefits, or reimbursement for expenses were not employees within the meaning of Title VII of the Civil Rights Act).
Since "[r]eceipt of state funds [alone] is …insufficient to transform…private actions into state actions," Alcena v. Raine, 693 F. Supp. 261, 266 (S.D.N.Y. 1988) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982)), it is unlikely that funding, in and of itself, will suffice to show control; however, it must be considered together with other factors set forth herein. See also Graves v. Women’s Professional Rodeo Ass’n., Inc., 907 F.2d 71, 73 (8th Cir. 1990) (compensation is not a sufficient condition, but it is an essential condition to the existence of an employer/employee relationship); Hall v. Delaware Council on Crime and Justice, 780 F. Supp. 241 (D. Del. 1992) (renumeration received by the Delaware Council on Crime and Justice volunteers was insufficient to consider volunteers employees for purposes of Title VII).
In order to find sufficient control such that an employer-employee relationship exists between a volunteer fire department and a municipality/county, it is necessary to examine all the factors set forth above, and control must be shown by clear and convincing evidence. Clear and convincing evidence "means proof within the ordinary and accepted sense of the words, and the dictionary definitions…given them." 12 N.C. Index 3d Evidence and Witnesses § 71. A single factor in an of itself may not necessarily establish control. If there is no control, an employment relationship cannot be found and, therefore, OSHANC coverage is not applicable. However, if control is shown by clear and convincing evidence such that an employment relationship is present, OSHANC coverage will apply.
Under the above control analysis as well as the statutory scheme outlined in N.C. Gen. Stat. §95148, if an employment relationship is found, the employer, i.e. the municipality/county, would be legally responsible for the development, expense and enforcement of an OSHA compliance program. AS the employer, the municipality/county would also be subject to any citations and penalties arising from OSHANC violations committed by the fire department.
Reginald L. Watkins Senior Deputy Attorney General
Marveallavette D. Jackson Francis Associate Attorney General