It is truly exciting to be contributing to the 50th anniversary issue of Fire Chief magazine. While I haven't been writing for Fire Chief for quite that long, this anniversary caused me to reflect on some of the changes that have occurred in the fire service over the years.

When I joined the fire service about 35 years ago, I heard some of our leaders complaining about how we were the “silent service.” It seemed like the police, always visible to the public in their cruisers, received all of the attention, while no one knew that we existed until they called for our services. It also seemed like the police received all of the federal money. We wished that we could become more prominent, both in the public's eye and to government.

What a lesson in “be careful what you wish for — you might get it!” Over the years we have achieved a much higher level of visibility, especially since Sept. 11, 2001. Also, and probably not coincidentally, we have come under much closer public scrutiny than ever before. This scrutiny has had effects as varied as an increase in lawsuits against fire departments and the media and public questioning the allocation and use of Assistance to Firefighters Grant funds.

All of this reminiscing sent me looking back over many laws that have affected our profession. While the provisions of some have become so ingrained in our society that it may be difficult to imagine we ever did business any other way, we are still struggling to understand and apply others.

The '60s was truly a decade of social change, as those of us who were there can attest. Let's start with the Equal Pay Act of 1963, which amended the Fair Labor Standards Act. It provides that an employer cannot pay employees of one gender less than those of the opposite gender for doing the same work if the difference in pay is based on gender. While this principle is commonly accepted without thought today, it was a big step when this law was enacted.

Next is the Civil Rights Act of 1964. This federal law still has a tremendous effect on the workplace with its prohibition of discrimination based on race, color, religion, sex or national origin in connection with any hiring, promotion, dismissal or other employment decision, unless the employer can show that use of this criterion is connected to a “bona fide occupational qualification,” which is nearly impossible to do. This law was eventually followed by the Civil Rights Act of 1991, which expanded the coverage to include workplace harassment and discrimination in firing. Partial credit for the entry into the previously all-male world of firefighting by the women of our country certainly must be placed here.

In 1967, the U.S. Supreme Court handed down its two landmark fire inspection rulings in the cases of Camara v. San Francisco, 387 U.S. 523 (1967) and See v. Seattle, 387 U.S. 541 (1967). Thanks to these two decisions, which still control the way we conduct inspections today, the court established when a search warrant is required to inspect an occupancy and what type of search warrant is needed. In these cases, the court observed that building occupants don't know if their premises are truly subject to inspection or whether the inspector has a legal right to be there. These problems are solved when a neutral magistrate is satisfied that the inspector has demonstrated these facts and issues a search warrant.

It was also in these cases that the court dealt with the dilemma of how a search warrant could be issued without a showing of probable cause. When an application is made for a criminal search warrant, the applicant must show that there is probable cause to believe that the proposed search of the premises will yield evidence of a crime. The problem was that when an inspector is conducting a routine programmatic inspection, there is no reason to believe that any such evidence would be found. Typically, the inspector has no knowledge of any violations but is simply there because it's time for another inspection.

The court noted that code enforcement inspections had been around for a long time and were generally accepted by the public. Furthermore, these inspections weren't directed at obtaining evidence of a crime, but rather were intended to provide a level of safety for the public. Consequently, the court concluded that an administrative search warrant — as distinguished from a criminal search warrant — could be issued when an inspector could show that a property was due for its regular programmatic inspection and that the inspector had been denied access.

The decade was far from over when Congress gave us the Age Discrimination in Employment Act in 1967. In its original form, the ADEA prohibited discrimination on the basis of age against all persons 40 years of age or older. This prohibition originally applied to both private employers and local governments employing 20 or more people. The act has had a rather complicated history since its enactment, due in part to a Supreme Court decision in 2000 holding that it didn't apply to local government employees in those states that retained sovereign immunity doctrines, which is nearly half of the states in the union. Nonetheless, governments still aren't free to discriminate at will based on age.

The 1970s saw a shift toward concern for safety in the workplace, with 1973 heralding the creation of the Occupational Safety and Health Act. With this law came the Occupational Safety and Health Administration, which was created to develop workplace safety standards. The application of OSHA rules to municipal firefighters now depends on whether their state has its own occupational safety and health program or whether it leaves this task to the federal OSHA. Out of OSHA, we have seen the development of regulations relating to bloodborne pathogens and respiratory protection. Likewise, it was provisions of certain OSHA rules that eventually gave impetus to the “two-in/two-out” rule.

During the '70s, chants of “burn, baby, burn” often were heard in some of our troubled cities. No surprise then that the U.S. Supreme Court decided it was time to give arson investigators some direction for when they needed to apply for a search warrant to carry out their duties. In Michigan v. Tyler, 436 U.S. 499 (1978), the court held that a re-entry to a fire-damaged furniture store to continue an origin-and-cause investigation begun and then suspended due to smoke conditions and darkness a few hours earlier was a continuation of the earlier search and therefore did not require a search warrant. Unfortunately, a few years later, the court decided another case based on similar facts in Michigan v. Clifford, 464 U.S. 287 (1984), this time holding that a search warrant was required to continue an earlier search because the structure to be searched was a private dwelling that the owner had taken steps to secure since the fire. The fire service continues to operate under the mandates of these two cases, which have added more confusion than clarity to the subject.

One of the big topics of discussion in the 1980s turned out to be the Fair Labor Standards Act. Although FLSA first became law in 1938, its application to the municipal fire service first occurred in 1985 when the U.S. Supreme Court gave us Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). After the U.S. Department of Labor promulgated its rules, public agency fire departments became subject to the payment of time-and-one-half compensation for its employees who work more than 212 hours in a 28 consecutive-day work period.

FLSA also created several brand-new problems. One of the biggest is its provision that a career firefighter working for a fire department subject to FLSA can't volunteer the same services that he or she is paid to perform to the same department. This brought about the departure of many career firefighters from the volunteer ranks.

Because the minimum pay and time-and-a-half provisions of FLSA don't apply to volunteers, the act also necessitated for the first time a determination of who really is a “volunteer.” The act provides that an individual won't be considered an employee of the public agency for which he or she works if the person receives no compensation; or is paid only expenses, reasonable benefits or a nominal fee; and if such services are not the same type of services that the individual is employed to perform for the public agency.

Permissible expenses could include a uniform allowance for the purpose of providing and maintaining a uniform; out-of-pocket expenses incurred during volunteering; and tuition, transportation and meal costs involved in attending classes to learn how to provide the services. Reasonable benefits can mean inclusion of volunteers in group health insurance plans, pension plans or length-of-service awards.

The determination of what's a “nominal fee” is more difficult. It can't be a substitute for compensation and can't be tied to productivity. However, the Department of Labor has consistently declined to establish an hourly rate as a bright-line test, thus leaving employers to make this determination at their peril.

The 1980s also saw a dawning of environmental awareness with the Comprehensive Emergency Response, Compensation and Liability Act of 1980, commonly referred to as CERCLA or “Superfund.” While the focus was on hazmat site cleanup, in 1986 Congress passed the Superfund Amendments and Reauthorization Act, or SARA, which dealt with training for hazmat responders and included a right-to-know provision requiring planning at the local and regional level for chemical emergencies and the reporting of chemical releases. Finally, in 1990 Congress gave us the Hazardous Materials Transportation Uniform Safety Act of 1990. This act recognized the financial burden imposed by SARA's training requirements and provided a funding mechanism for training through registration fees from hazmat shippers.

In the late 1980s we also began to see drug testing become a major issue. This practice was in its early stages when the U.S. Supreme Court handed down two key cases: Skinner v. Railway Labor Executives Association, 489 U.S. 602 (1989) and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). These two cases recognized the necessity of a balancing test, where the interests of both the employee and the government must be considered. Since Skinner and Von Raab were decided, the greatest area of concern has been in the area of suspicion-less drug testing. While the courts have routinely held that suspicion-less testing isn't necessarily a violation of the Fourth Amendment, it can be used only when the employer can make a strong argument that it needs a testing program to carry out certain justifiable goals, such as ensuring the safety of employees and the public, and that it provides safeguards against the use of the test results for law enforcement purposes.

The '90s started off with a bang with the enactment of the Americans with Disabilities Act in 1990. Few laws have been greeted with as much concern by the fire service or had a more profound effect on it. The ADA prohibits discrimination in employment against “qualified individuals with disabilities,” which are people who can perform the “essential functions” of a job “with or without a reasonable accommodation.” These provisions have spawned an entire body of law regarding what functions of a job are essential, as opposed to merely helpful, and what kind of accommodations truly are reasonable. For instance, it was not until 1999 that the U.S. Supreme Court decided nearsightedness wasn't a disability under the ADA.

And so time marches on, as does the development of laws that determine how we do business. If you think that the law doesn't affect our work, then I have wasted a lot of time with useless reminiscing. The real challenge for the next 50 years and beyond involves our ability to participate in the development of laws that affect us, recognize their effect on us and apply them to benefit us.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin State Firefighters Association and the National Volunteer Fire Council. He is also currently the chairman of the NVFC, the secretary of the National Fire Protection Association and a director of the National Fallen Firefighters Foundation.