The Echo Rural Fire Protection District is a volunteer fire department covering 490 square miles and two counties in Oregon. The district has approximately 24 volunteer firefighters who operate out of three fire stations. There is one full-time employee, a secretary.

In 2005, the firefighters received $7 per hour for emergency calls and $10 for training sessions, regardless of the number of hours the session lasted. The district labeled these payments as “expense reimbursements.” The reimbursements were for travel expenses incurred by volunteers when responding to emergency scenes, the cost of personal vehicle maintenance, replacement for ruined clothing, and compensation for wages lost when leaving full-time employment. Volunteers also received a $10,000 life insurance policy and reimbursement for required state and district training fees.

Carroll “Bo” Jordan first began serving as a volunteer firefighter and EMS first responder with the district in 1991. In March 2005, the Oregon Occupational Safety and Health Division investigated the district for unsafe conditions. During the investigation an OR-OSHA investigator spoke with Jordan, Chief Merle Gehrke, Asst. Chief Tom Enright and others. Jordan told another member of the district that he had complained about safety violations to OR-OSHA in the past. This member relayed the information to the fire chief, who then invited the employee to a district board of directors meeting.

At the meeting, the member said that Jordan had called OR-OSHA and had instigated the recently completed investigation. The board was aware that the district would receieve a fine from OR-OSHA as a result of that investigation. At the meeting, the fire chief recommended removing Jordan, and a motion was made to terminate him. On March 17, 2005, the district told Jordan of his termination. On April 11, 2005, OR-OSHA issued a citation and fined the district $950.

Following his dismissal, Jordan brought claims against the district alleging violations of his First and 14th Amendment rights, violations of Oregon's Public Whistle Blowing and Safe Employment Act statutes, wrongful discharge, and intentional infliction of emotional distress. In response, the district and fire officers filed a motion to dismiss on all but two of Jordan's claims. The federal magistrate and district judges both addressed the arguments of the defendants in detail. (Jordan v. Echo Rural Fire Protection District, No. 7-403, 2007 WL 892971(D. Or., March 20, 2007)).

The court initially addressed Jordan's First Amendment claim. Jordan argued that his termination was in retaliation for his complaints to OR-OSHA, which therefore impeded his right to petition the government. The district court noted that the right to petition is infringed when “a governmental actor directly interferes with the right to present a grievance, or imposes restrictions on the ability to present a grievance that have a single ‘chilling’ effect on a citizen's exercise of that right.” The fire district argued that Jordan's conduct in speaking to and cooperating with an OR-OSHA investigator did not constitute a petition for readdress of grievances. Conversely, Jordan argued that his conduct was protected if he sought government assistance in resolving, participated with an investigation, or filed an internal grievance relating to a matter of public concern.

The court found that Jordan's activities did not rise to the level of conduct required of a citizen to trigger the protections of the First Amendment. In this case, Jordan merely cooperated with an ongoing investigation. Jordan did not allege that the OR-OSHA investigation was a direct result of his contact with the agency. His conduct was too passive to constitute petitioning the government for redress of grievances. The district court therefore dismissed Jordan's First Amendment claim.

The balance of the court's opinion addressed the fire district's attempt to dismiss Jordan's claims based on Oregon's Whistle Blowing and Safe Employment statutes and wrongful-discharge claims. Echo's motion to dismiss these claims revolved around the central issue of whether Jordan's status as a volunteer firefighter with the district precluded him from being considered an employee as a matter of law. Echo argued that because Jordan did not receive wages he was not an employee of the district. The district characterized all payments made to Jordan and the other volunteer firefighters as reimbursement for expenses incurred. Echo pointed out that it reimbursed its volunteers on a flat-rate basis and that the reimbursements provided did not even cover the volunteer's actual expenses.

In response, Jordan argued that the characterization of the payments to him as expense reimbursement was not dispositive on the issue of his employment status with the district. Jordan pointed out that the payment he received exceeded federal minimum-wage requirements, and as he was compensated based on hours worked, a reasonable fact-finder could conclude that he was a district employee. Echo argued that because volunteer firefighters are defined under Oregon law as a separate entity, they could not be employees and did not meet the statutory definition of being employed under Oregon wage and hour laws. The district based this argument on the fact that the compensation the volunteers received was not “adequate consideration for the services performed for the district.”

The district further argued that volunteer firefighters donate their time and thus do not have status as employees. Jordan argued in response that a reasonable fact finder could conclude that the remuneration received by volunteer firefighters qualifies them as employees under Oregon law. Jordan relied on another federal case which held that volunteers who receive remuneration may be employees for Title VII purposes. (Haavistola v. Community Fire Co. of Rising Sun Inc., 6 F.3d 211 (4th Cir. 1993)).

The trial court noted that the Federal Court of Appeals Circuit in which it was situated had not yet established a bright line for determining whether and when an individual who works under the title of volunteer may be an employee for statutory purposes. However, after reviewing case law from other circuits, the trial court held that the following factors are consistently used to determine whether an individual is a volunteer or an employee:

1. Whether the benefits received by the individual constituted wages, salary or other compensation;

2. The degree of control the employer has over the employee; and

3. The specific statutory terms that define the nature of the relationship in the claims at issue.

The trial court then applied these standards to Jordan's claim that the fire district violated Oregon's whistle-blowing law. Echo argued that because Jordan was a volunteer and not an employee, he did not fall within the law's coverage. Under this statute, an employee is “a person employed by or under contract with: (a) The state, or any agency of or political subdivision in the state.” Relying on Jylha v. Chamberlain, 168 OR. 171, 175-76 (1942) Echo argued that the word “employee” in this statute must be construed to apply only to persons who render services for a public employer in exchange for wages or salary.

In response, Jordan argued that the term “employee,” unless the context required otherwise, means “to suffer or permit to work but does not include voluntary or donated services performed for no compensation or without expectation or contemplation of compensation as the adequate consideration for the services performed for a public employer….” In reviewing these two opposing arguments, the court was not convinced that Echo's narrow interpretation of the term “employee” based on a different statute (the Employers Liability Act), analyzed in a case 60 years old, should guide its analysis.

Rather, the court used the Oregon statutory language, and found that a reasonable fact finder could determine that Echo permitted Jordan to work for the district, that he provided services as directed by the district, and that he received some compensation for the services he provided. The court concluded that whether the compensation was adequate to remove Jordan from the class of volunteers was a question of fact for the jury. Moreover, the court held that public policy also supported Jordan's argument that Oregon's whistle-blower law was intended to provide protection to volunteers in addition to more conventional employees. As a result, the district's motion to dismiss the whistle-blower claim was denied.

The trial court then addressed Jordan's allegation that the District violated Oregon's Safe Employment Act. As with the whistle-blower statute, the district again argued that the OSE Act did not apply to Jordan because he was not an employee but a volunteer. The court noted that under the OSE Act, an employee is defined as “any individual, including a minor whether lawfully or unlawfully employed, who engages to furnish services for remuneration, financial or otherwise, subject to the direction and control of an employer.”

The court held that Jordan could be considered an employee under this statute because he was engaged to furnish services to the district, he received financial and other remuneration from the district for the services, and he was under the direction and control of the district when responding to emergencies and attending training sessions. Again, the court also found that public policy supported the inclusion of volunteers such as Jordan under the protection of the statute. Again, the court overruled the district's attempt to dismiss one of Jordan's claims.

The court then addressed the district's request to dismiss Jordan's wrongful discharge claims against it. The court noted that Oregon recognized two circumstances that implicate claims for wrongful discharge:

• Discharge for fulfilling a societal obligation or public duty; and

• Discharge for exercising a job-related right of important public interest.

The district court pointed out that a “societal obligation of public duty” may include serving on a jury, while “exercising a job-related right of important public interest” might include resisting sexual harassment and filing a worker's compensation claim. Again, the district argued that because Jordan was not financially dependent on it, a claim for wrongful discharge was not available to him. Jordan argued that the district overemphasized the importance of the financial aspect of the relationship. Jordan further argued that even if the district was right in focusing on the status of payments to him, the fact that he received payments for services performed on the district's behalf created a question of fact as to whether or not he was an employee. Jordan argued that under state law, the right-to-control test is used to determine whether an individual is an employee in a wrongful discharge claim.

The trial court pointed out that the fire district did not argue, nor could it argue, that it did not control Jordan's actions when he was on duty performing emergency services or attending training sessions in his role as a volunteer firefighter. Because the fire district failed to provide sufficient evidence that Jordan could not maintain a wrongful discharge claim against it, Jordan's claims would remain for a jury to decide.

Nestucca (Ore.) Rural Fire Protection District volunteer firefighters are not paid money for their services, but do receive life insurance providing benefits if they are killed on or off the job. They also receive Worker's Compensation coverage, which applies only when volunteers are serving the District. Nestucca pays for volunteers to attend training sessions. Volunteers occasionally also receive t-shirts, hats, and sweatshirts from the District. Occasionally, the volunteers receive meals. No other benefits are received from the District.

Kimberly Johns was a volunteer with Nestucca, and was a Captain of its Water Rescue Team. In his capacity as Captain of the team, Johns arranged funding for new equipment. Because new safety policies were required after the equipment was obtained, Johns was asked to draft the policies. The District did not use the policies which Johns drafted, but continued to use the new equipment. Johns warned the District of the need for proper guidelines and training on the new equipment. Thereafter, he alleged that the Fire Chief, Royce Fletcher, repeatedly blocked his efforts to implement the new policies for the equipment, prompting Johns to tell the Chief that he intended to file a complaint with Oregon OSHA (“OSHA”) which Johns did in fact do in July of 2004. Johns claims that the day after he told Fletcher he was going to complain to OSHA, the Chief, on a pretext, rescinded the Captain's authorization to respond to fire emergency calls.

In July of 2004, Johns notified Fletcher of his intention to file an unlawful discrimination claim with the Oregon Bureau of Labor and Industries for the Chief's recision of Johns' authorization. In December of 2004, Johns filed an action against Nestucca and the Chief in state court for violation of his Whistler Blower rights under Oregon statutory law. Between July of 2004 and September of 2005, Johns claims that the Chief repeatedly singled him out for conflict and usurped his authority. For example, on August 31, 2005, Johns issued a notice of training for the Water Rescue Team to be conducted on September 4. The next day, Fletcher and the Training Officer, John Kiefel, rescinded the notice stating that participation in any training would be considered insubordination and would result in disciplinary action. These two officers ordered the team to go “off-line” and cease all operations over the Labor Day weekend. Despite this order, the Water Rescue Team held its training session as scheduled. Fletcher and Kiefel came to the meeting, and the Chief ordered all members of the team to leave so that he and the Training Officer could talk to Johns in private.

Johns alleged that as soon as he was alone in the room with the Chief and Training Officer, the Chief shut the door and the Training Officer pulled out a tape recorder and began recording. Johns allegedly told the two officers that he was uncomfortable with the situation and attempted to leave the room. Johns claims that Fletcher said, in a raised voice: “You're not going anywhere!” and blocked the only exit from the room. Johns claimed that he attempted to leave the room a second time but that Fletcher repositioned himself to block access to the door. Johns further alleged that he attempted to leave a third time and that the Chief stepped in front of him and physically blocked his path. Johns claimed that Fletcher then attempted to force him to accept the letter of termination, which he refused. Johns instructed the Chief to send the letter to his attorney. Johns alleged that after refusing to accept the letter, he again moved for the door and forced his way out of the room; and that he was followed by Kiefel who took pictures of him. Johns was subsequently terminated from his position on Sept. 2, 2005, when he received a letter from the Chief terminating his services.

Subsequently, Johns filed claims against the District, Fletcher and Kiefel alleging false imprisonment and assault, as well as intentional affliction of emotional distress. The defendants moved for dismissal of these claims. Johns v. Nestucca Fire Protection District, 2007, WL 429111 (D.OR.).

The federal district Magistrate Judge first addressed Johns claims under the Oregon Whistle Blower Statute. Like the Echo Rural Fire Protection District, Nestucca claimed that Johns did not have standing to bring an action pursuant to the Whistle Blower Statute because he was not an employee. Johns conceded that he was a volunteer, and did not dispute that he received only non-pecuniary benefits for his services. Instead, he asserted that he hoped to obtain an enhanced reputation in the community that he could parley into increased sales for his business and, possibly, political gain. Nestucca pointed to the definition contained in the State Wage and Hour Laws which defines “employee” to exclude “voluntary or donated services performed for no compensation or without expectation or contemplation of compensation as the adequate consideration for the services performed…” The Fire District argued that Johns' highly speculative compensation (enhanced reputation leading to increased sales) could not be characterized as “adequate consideration”. The defendants further argued that the benefits received by the District's volunteer firefighters - a few articles of clothing, training in firefighting and emergency medical care, an occasional meal, and Worker's Compensation and life insurance benefits, did not constitute monetary compensation. Moreover, the District pointed out that state statutes make a distinction between “volunteer firefighters” and “firefighters”. Specifically, the state defines a “firefighter” as a “person whose principal duties consist of preventing or combating fire or preventing loss of life or property from fire” while a “volunteer firefighter” is defined as “a person who performs services as a firefighter for a regularly organized fire department and whose work hours and work shifts are voluntarily and whose volunteer services is not a condition of employment”. The Wage and Hour Statutes apply to “firefighters” but not to “volunteer firefighters”.

The defendants also argued that under relevant case law, Johns could not be considered an employee. Like Echo, the District also cited the 1942 case of Jylha V. Chamberlain, in which the term “employee” was construed to mean “one who renders service for another for wages or salary”, as it related to the Oregon Employers Liability Act. Conversely, Johns claimed that the court should rely upon the definition found in the Oregon statute which defines “employee” merely by excluding “any individual employed by the individuals parents, spouse or child or in the domestic service of any person”. The term “employer” in that same statute was defined as “any person who in this state directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such services is or will be performed”. The District Court reviewed the differences between the various state statutes, and noted that construing one statute as urged by Johns would contradict provisions of the other statute. In conclusion, the trial court agreed with Nestucca that Johns status of volunteer placed him outside the provisions of Oregon's Whistle Blower Statute.

The trial court did acknowledge that dismissal from a volunteer position can constitute unconstitutional retaliation. The Court pointed out that there was ample authority that retaliatory acts other than actual discharge can serve as the basis for a First Amendment claim. However, Johns had not alleged a First Amendment claim, and therefore the court could not permit Johns to proceed against the Fire District on this basis.

Johns also asserted claims for assault against the two fire officers. The District Court concluded that Johns could not make out a claim for assault because he had not proven an intentional attempt by the officers to do violence to him. Johns also alleged a false imprisonment claim against the fire officers. Johns argued that being told he could not leave the room until the meeting was over and having the exit blocked by Fletcher's body, which ultimately required him to move around the Chief in order to leave, was sufficient to constitute a claim for false imprisonment. Nestucca and the Chief argued that the “confinement”, if any, was too de minimis in nature and duration to support a claim for false imprisonment because Johns was never physically confined and the moment Johns chose to leave the room he was able to do so without resistance. Nonetheless, the trial judge found that Johns' false imprisonment would survive summary judgment and would be permitted to be heard by a jury. What damages, if any, resulted from the confinement would be an issue for the trier fact to decide. Finally, the court addressed Johns' claims for severe emotional distress. The court noted that under Oregon law, insults, harsh or intimidating words, or rude behavior ordinarily do not result in liability under this cause of action, even when intended to cause distress. The trial court granted the defendants motion to dismiss on this claim. In conclusion, the court held only that Johns claims for false imprisonment against the officers would survive and that all other claims against Nestucca and the officers should be dismissed.

These two cases arise from the same Federal District Court in Oregon. Both cases involve the application of Oregon's Whistle Blower statute, as well as other statutes that focus upon whether an individual is an employee or a volunteer. Both Fire Districts focused their arguments on the same case - Jylha V. Chamberlain. However, the results were significantly different. In Jordan's case, he was permitted to proceed with his Whistle Blower and other employment related claims against the District. Conversely, Johns' claims relating to the employment statutes were dismissed by the court.

Fire Chiefs must understand that the interpretation of statutes and the application of statutes to facts may be extremely case or situation specific. Courts will look at the overall relationship of the individual to a District and determine whether or not he or she is an employee. Courts will examine that not only the wages paid to the employee, but also the employers ability to control the employees activities. The greater degree of control - the more likely the firefighter will be labeled an employee, not a volunteer, which will ultimately give rise to the possibility of employee-based claims against the employer.

Fire departments should no longer assume that they are exempt from the requirements of state employment laws just because an individual is labeled as a “volunteer”. To avoid these issues, Fire Chiefs should track the language of state and federal statutes when drafting their employment or operational policies. This will be particularly true when implementing compensation policies within a department. Although for recruitment and retention purposes, the idea of monetary compensation is great, Fire Chiefs must understand that there are risks involved with this type of plan, and must be made aware of the negative implications that go with the positive gain.

In addition, these two cases clearly demonstrate that all public firefighters (and many of those working for private fire companies) are entitled to due process of law, including the right to have disciplinary actions heard before a governing body. Public firefighters are entitled to due process, and this right cannot be waived.

Finally, fire chiefs should be hesitant to terminate or discipline a firefighter without completely a thorough investigation, which should include speaking to the firefighter who was alleged to have violated the departmental rule or regulation. Actions against the firefighter should be based upon a specific violation of department policy, and not because the firefighter, by way of his speech, has created issues within the department. Where a firefighter speaks regarding a matter of public importance, fire officers and departments must refrain from taking disciplinary action against the firefighter based solely upon the firefighters speech. These two cases clearly demonstrate that the Federal courts recognize causes of action by volunteers who are terminated because they complained about matters of public concern.

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David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.