Rules for Missouri Fire Protection Districts - Page 13
Parenthetical numbers in the text refer to sections of the current Revised Statutes of Missouri, abbreviated as RSMo.
Fire protection districts might not think of themselves as employers needing detailed personnel policies. They might have but one employee and work arrangements may be informal. However, even with a single employee, a district is an employer. It must have an employer identification number, withhold income and Social Security taxes from wages, and pay state unemployment insurance. Moreover, a fire district is considered a public employer. As such, it must keep certain records under the federal Fair Labor Standards Act, known as FLSA, and compensate employees in accordance with FLSA rules (see Chapter XIII. Federal Fair Labor Standards Act).
A district could have employees who are covered by Social Security and others who are not. Today, most public employees are covered by Social Security, but this was not always the case. Some long-term public employees who were not covered by Social Security may have been grandfathered when laws changed.
In recent years, there have been many changes in laws that relate to employees. Most of the changes are the result of federal laws designed to eliminate discrimination. Only gradually have similar laws also been adopted at the state level. These overlapping laws can be confusing. In some cases, they apply broadly to all workers, including volunteers; in other cases, they apply only to employees, or they may apply only to workplaces with a minimum number of employees, which might be four, 15, 25 or 75, depending on the section of the law.
A fire protection district is not exempt from labor laws simply because it performs a public service. Rather, it should assume that all discrimination and employment laws apply, even if it has fewer than the “minimum number” of employees. Under modern civil rights legislation, including statutes sometimes referred to as “Civil Rights” or “1983,” (called this because of the legal citation, Title 42 of the United States Code, Section 1983), a district might be sued over fire district conduct that is not otherwise covered by the specific statute.
Fire district board members protect themselves by staying well informed and scrupulously following the laws. A board may also want to consider insurance that covers its decisions as an employer. Most insurance products, including workers’ compensation, general liability and even board errors and omissions coverage, do not cover personnel or wage disputes. Insurance protection in this area requires separate, and expensive, employment liability coverage.
Employees and volunteers
Lawyers, legislators and courts use the terms “employee” and “volunteer” in different ways, and telling them apart for legal purposes can be difficult. Volunteers might receive a payment, such as a small honorarium called “show-up pay” when they attend a training session, or they might receive mileage or tuition reimbursement, especially when taking training far from home. Sometimes employees want to volunteer to fight fires (which, by the way, they cannot do unless paid at their regular rate of pay or at time-and-a-half, depending on the situation). Both employees and volunteers can be fired. Both employees and volunteers can be required to follow fire district policies, and both can be required to wear a prescribed uniform. Also, a fire district can be sued for the conduct of either type of worker.
When distinguishing between an employee and a volunteer, most will say that an employee is paid a “regular wage,” while a volunteer receives only “nominal compensation.” Recently the International Association of Fire Chiefs pressured the U.S. Department of Labor for more explicit guidelines clarifying who is an employee and who is a volunteer. In response, the Labor Department’s Wage and Hour Division provided a letter stating that a person would be considered a volunteer if he or she is paid less than 20 percent of what a full-time firefighter receives in the same locality. This 20 percent guidance might also be useful to fire districts in contexts beyond the authority of the Wage and Hour Division, such as minimum wage, overtime and compensatory time. For more information on volunteer compensation, see the International Association of Fire Chiefs (IAFC) publication Managing Volunteer Firefighters for FLSA Compliance.
Fire districts have special circumstances
Firefighters, whether they are employees or volunteers, are given certain legal dispensation when responding to a fire call. This includes allowance to drive as fast as they think prudent, provided both lights and siren are working. However, firefighters are not allowed to disobey stop signs or lights. Every year, firefighters and other emergency personnel die or suffer serious injury because of missed stop signs or traffic lights. Occasionally a firefighter (or police officer or ambulance driver) is charged with manslaughter when a death results from running a stop sign. Also, a district can be sued if one of its firefighters causes a traffic injury or death by inattention to stop signs.
As a result of speed, and because a fire tanker truck carrying 1,500 gallons of water does not steer like a sports car, failure of firefighters to wear a seat belt and shoulder harness is particularly dangerous. Rollovers of top-heavy fire apparatus cause an appalling number of firefighter deaths and injuries.
Thus, it is important that fire districts have rules requiring firefighters to stop at every stop sign or red traffic signal and to wear seat belts and shoulder harnesses. The district should discipline any firefighter, whether an employee or a volunteer, who fails to obey these rules, even when driving a private vehicle to the fire station or a fire scene.
Special firefighter benefits
Hopefully, you will never need this information in your tenure as a fire protection district director, but you should be aware of special benefits that may be available to the families of firefighters who suffer a line of duty death, often referred to as an LODD. The Missouri Fire Service Funeral Assistance Team, http://mofirefuneral.org, helps fire departments when a firefighter dies, even if the death did not occur during duty. If a firefighter dies, the employing district should immediately contact this organization.
The federal government provides a death benefit (almost $300,000 in 2011) to the family of a firefighter who dies in the line of duty or from a heart attack within 24 hours of a nonroutine stressful situation. The application for the benefit can require extensive medical records and is difficult to complete. The state funeral assistance team can provide guidance to families in this situation. This application requires certain autopsy results to show the death was not caused by alcohol or drug abuse, For this reason, the family should not release the body to a funeral home until after an autopsy.
Beginning with tax years starting on or after Jan. 1, 2008, Missouri provides a modest death benefit to the surviving spouse of a firefighter killed in the line of duty. (This benefit is also available to surviving spouses of paramedic, first responder or law enforcement personnel). The benefit is property tax relief on the family home as long as the surviving spouse does not remarry. The relief is provided through a special income tax credit that must be claimed annually on the state income tax return (135.090, as currently written, will expire in 2014).
Other miscellaneous benefits are also available. One of the nation’s large funeral home chains will provide a free funeral service when an LODD occurs. Upon request, a uniform-manufacturing company will provide a free dress firefighter uniform for the body of a firefighter. More information about these benefits is available from the Missouri funeral assistance team.
Expectations and evaluation of fire chief
One of the most important duties of the fire protection board is to appoint a fire chief. Fire departments tend to be organized with a military-type command structure, and they are strongly influenced by the personality and level of competence of the fire chief. The board should take seriously its role in selecting and working with the fire chief, who will lead the fire department’s day-to-day operations. When appointing a chief, the fire district board needs to communicate clearly and honestly with the candidates about its expectations. Once a chief is appointed, the board should evaluate the chief’s performance annually. A sample list of board expectations and a sample form for annual evaluation of a fire chief can be found in the members-only section of the Missouri Association of Fire Protection Districts website, http://mafpd.org.
Workers’ compensation insurance
Laws require any fire department with four or more employees to have workers’ compensation insurance to cover its employees. Volunteers are not counted as employees in this case, so most small FPDs do not have to provide this insurance. However, most FPDs that can afford to do so voluntarily provide workers’ compensation insurance to cover both their employees and their volunteers. This insurance provides medical insurance coverage for a firefighter injured on the job, disability insurance coverage for a firefighter injured on the job, and a modest death benefit for the family of a firefighter killed on the job.
The workers’ compensation benefits that volunteer firefighters might have at their regular jobs will not cover injuries from volunteering, so a separate policy is needed. Also, because private health insurance often excludes injuries that could be protected by workers’ compensation, many times the volunteer’s private health insurance also will not pay. In addition, the disability and death benefits listed above for volunteers are particularly modest because they are based upon a benefit of $40 per week. If a volunteer firefighter is injured in a flashover, for example, an FPD workers’ compensation insurance policy would pay all medical bills but would provide only $40 per week disability pay for the time the firefighter was unable to work during recovery. If the firefighter supports a family, they may have difficulty getting through the recovery period on so little money. (Many generous employers will permit a volunteer firefighter who suffers an injury to draw vacation and/or sick leave pay, but employers are not required to do this.) For these reasons, some fire districts provide additional disability and death benefit protection for their volunteer firefighters.
Currently, three insurance companies that operate in Missouri provide specialized insurance coverage for fire departments. These companies are familiar with the workers’ compensation problems, and other insurance companies can be educated about the problems and urged to provide reasonable assistance. The easiest way to find insurance may be to contact an independent insurance agency that represents multiple companies.
Workplace-related lawsuits do not happen often, but when they arise, they are unpleasant and can be extremely expensive, even for the winners. That is why employment liability insurance coverage is sold separately and why it is expensive. Employers have found that one of the best defenses available is to have a published handbook of employment policies that is scrupulously followed in all situations. (Note: An employer is not required by law to treat employees and volunteers with dignity and respect, but if the employer chooses to treat them badly, then all of them should be treated equally badly to avoid legal claims of discrimination.)
With this in mind, fire district boards are encouraged to examine their existing written policies, compare them with policies being used in neighboring fire districts and review sample policies available from insurance companies or from reliable sources on the Internet, such as the Missouri Association of Fire Protection Districts, http://mafpd.org. Then, put together a set of policies the FPD can live with and can actually follow. Keep in mind, a policy that is ignored is evidence that can be used against an employer; the board must follow the policies it adopts.
Historically, firefighting has been conducted by voluntary social groups. Firefighting was often a form of group camaraderie that also provided some community benefit. Like many social activities, it was frequently accompanied by the use of alcoholic beverages. As firefighting has become more complex, it has become more a professional and less a social activity. The risks of combining alcohol and firefighting are obvious. FPD board members and officers should be aware of the risks and ensure that alcohol is removed from the firehouse, if its use there is still allowed or condoned in the district.
Both Missouri and the federal government have enacted rules that govern minimum wages paid to nonvolunteer workers. Laws also regulate the maximum number of hours a paid worker can work before the employer must pay an overtime premium (time-and-a-half).
The Missouri law has been construed by the courts to not apply to local governmental bodies, such as fire districts.
The next chapter discusses the federal law. Information on the federal laws that govern wages is available on the Fair Labor Standards Act website, http://www.dol.gov/whd/flsa.