FLSA2008-15 — Stipends provided to volunteer firefighters of a political subdivision and nominal fees under section 3(e)(4)(A)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

FLSA2008-15

December 18, 2008

Dear Name*:

This is in response to your request for an opinion regarding the application of the Fair
Labor Standards Act (FLSA)
1
to a fire protection district’s plan to provide certain
“monthly” stipends to its volunteer firefighters and other volunteers.

The district is a political subdivision of the state that provides fire protection services
using both paid and volunteer firefighters. The district, according to your letter, plans to
offer the volunteers a monthly stipend to reimburse them for expenses and provide a
nominal fee in accordance with the FLSA volunteer provisions. Your letter indicates that
the only payments to the volunteers would be the monthly stipends. The volunteers
would not receive any benefits other than workers’ compensation coverage for any
injuries incurred during their volunteer service.

The stipends (to include expenses and a nominal fee) would not be paid to the volunteer
firefighters and other volunteers unless they perform a minimum of 24 hours of volunteer
service in the month, including training, fire calls, emergency calls, medical calls, and
shifts at the station. Volunteer firefighters and other volunteers who exceed 24 hours of
service would not receive any additional pay. The stipends for the firefighters and other
types of volunteers appear to be as follows:

Emergency Medical Technicians (EMTs) $175.00 per month
Firefighters $175.00 per month
Firefighter/EMTs $200.00 per month
Traffic Control Officers $250.00 per call
Food Service $ 25.00 per call
2

The district estimates the costs to each volunteer for mileage, meals, and clothing and
laundry expenses at $90.00 per month. The expenses for the traffic control volunteers are
higher because of the costs of maintenance and wear and tear on their personal vehicles,
and this is reflected in the higher stipend for them. The volunteers would not receive any
reimbursement for expenses other than the “monthly” stipends.

1
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in
this letter can be found at
www.wagehour.dol.gov.

2
Your letter states that all of the volunteers would receive fixed monthly stipends. The “schedule” you
enclosed with your letter, however, could be read (under “Option 1”) to indicate that the traffic control and
food service volunteers would receive their stipends in the form of a fee per call (a notation of “per call” is
listed for those volunteers under the minimum hours column).

2
Under the FLSA, a public agency volunteer cannot receive any compensation, but may be
paid “expenses, reasonable benefits, or a nominal fee, or any combination thereof.” 29
U.S.C. § 203(e)(4)(A); see
29 C.F.R. § 553.106(a). The regulations allow for volunteer
firefighters to be paid a nominal fee even if paid on a “per call” or similar basis, as long
as such payment is consistent with certain factors denoting the relative “sacrifice” of the
volunteer. See 29 C.F.R. § 553.106(e) (listing among the factors to be considered: the
distance traveled and time and effort expended by the volunteer; whether the volunteer
has agreed to be available around-the-clock; and whether the volunteer provides services
throughout the year, even if those services are provided periodically). Public agencies
should similarly be permitted to pay non-firefighters a nominal fee on a “per call” basis,
provided that the amount is, in fact, a nominal fee. See Wage and Hour Opinion Letter
FLSA2002-4 (July 19, 2002).

But a nominal fee cannot be a substitute for compensation or tied to productivity. See 29
C.F.R. § 553.106(e). Generally, a key factor in determining if a payment is a substitute
for compensation or tied to productivity is “whether the amount of the fee varies as the
particular individual spends more or less time engaged in the volunteer activities.” Wage
and Hour Opinion Letter
FLSA2005-51 (Nov. 10, 2005). If the amount varies, it may be
indicative of a substitute for compensation or tied to productivity and therefore not
nominal. See id.; see also 29 C.F.R. § 553.106(e).

Determining whether a specific amount of expenses, benefits, or fees prevents an
individual from qualifying as a volunteer under the FLSA requires an examination of “the
total amount of payments made . . . in the context of the economic realities of the
particular situation.” 29 C.F.R. § 553.106(f). As a general rule, the Department finds
that a fee paid is (apart from expenses) nominal as long as it does not exceed 20 percent
of the amount that otherwise would be required to hire a permanent employee for the
same services. See Wage and Hour Opinion Letter
FLSA2006-28 (Aug. 7, 2006); Wage
and Hour Opinion Letter FLSA2005-51 (“[A] willingness to volunteer for an activity for
20 percent of the prevailing wage for the job is a likely indicium of the spirit of
volunteerism contemplated by the 1985 amendments to the FLSA.”); see also
Vonbrethorst v. Washington County, Idaho, No. 06-0351, 2008 WL 2785549, at *4 (D.
Idaho July 15, 2008) (the fact that “on-call compensation was above twenty percent of
full-time employees’ pay for the same on-call shifts” weighs against volunteer status).
Thus, for example, if a volunteer firefighter staffs the equivalent of three shifts during a
month, the nominal fee should not exceed 20 percent of what it would cost to employ a
firefighter to staff these three shifts.

Although the amounts indicated in your letter appear to be relatively small, we cannot
provide a final, definitive determination as to whether the projected stipends that you list
(whether monthly or per call) include fees that are nominal without more information
about the amount in the area that is paid to permanent employees to perform similar
services. The market information necessary to apply the “20 percent test” to the projected
stipends should be available to your client. Absent such information, your client may
look to data from neighboring jurisdictions, the state, or ultimately the nation, including
data from the Department of Labor, Bureau of Labor Statistics. So long as the
calculations are based on an approximation of the prevailing wages in that area, and the
amount of the fee portion of the proposed stipends (monthly or per call) does not exceed

3
20 percent of the wages for the same services, we would find that such a fee is “nominal”
within the meaning of 29 C.F.R. § 553.106.

This opinion is based exclusively on the facts and circumstances described in your
request and is given based on your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of any other factual or
historical background not contained in your letter might require a conclusion different
from the one expressed herein. You have represented that this opinion is not sought by a
party to pending litigation concerning the issues addressed herein. You have also
represented that this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of Labor.

We trust that this letter is responsive to your inquiry.

Sincerely,

Alexander J. Passantino
Acting Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5
U.S.C. § 552(b)(7).