There are many demands made on volunteer firefighters, not the least of which is time. As the public looks for more service, better service and a greater variety of services, the time volunteers spend fulfilling their mission continues to increase.

This increased demand for time happens at an unfortunate juncture in our history, as we see American workers spending progressively more time earning a living. Statistics seem to indicate that we spend more time at work than workers in most other industrialized nations do. Moreover, the two-income home is commonplace, cutting even further into volunteers' discretionary time.

Furthermore, volunteer fire departments don't compete just with employers for the time their members have to donate. There are also school events, family obligations, church activities and who knows what else, not to mention the occasional opportunity for recreation.

And as if all of this weren't enough, there's the problem of encouraging employers to allow volunteers to respond to calls during work hours. While some employers are quite sympathetic, others see things much differently. In some instances, an employee's unplanned absence can be a real hardship for an employer, perhaps shutting down an assembly line and idling other workers, or causing a deadline to be missed. Other employers worry about the opportunity for less-than-dedicated employees to abuse the privilege of being released from work to respond to a call, especially if they're still on the clock during their absence.

From time to time, the volunteer-employer relationship is discussed at National Volunteer Fire Council meetings and elsewhere. One suggestion is to seek the passage of legislation similar to that which prohibits employers from discriminating against employees who belong to the National Guard. Such legislation could ensure that volunteers wouldn't be denied employment just because of their fire department affiliation. It might also address the circumstances under which they could be released to respond to calls.

The issue of what can happen when a volunteer responds to a call while on the employer's time (although in this case it was sick leave rather than work time) came up recently in Nelson v. United Technologies, Court of Appeal of California, 6th Appellate Dist., No. H018811 (1999). As you'll see, all hope may not yet be lost.

Since 1988, Michael A. Nelson had been employed at United Technologies (UTC) as a firefighter. Additionally, he served as a volunteer firefighter for the California Department of Forestry and Fire Protection (cdf). To help defray his expenses, he was paid $8 for each call he answered for cdf. UTC was supportive of his volunteer work (or so he thought), believing that it improved his work skills.

When his wife suffered a work injury in March 1995, Nelson took some time off from work to care for her and look after their 2-year-old son. He contacted his supervisors and told them that he would not be reporting for work on March 27 and March 29, 1995, explaining his family situation. UTC's company policy allowed him to take sick leave to attend to injured or ill family members.

Although cdf paged Nelson for several calls while he was home on these days caring for his family, he was unable to respond, because there was no one else to assume care. However, when a call of a barn fire came in on March 29, 1995, it happened that a friend was visiting. When the friend offered to care for his family while he responded to the call, and upon the urging of his wife, Nelson went to the fire. Apparently the fire wasn't a large one, as Nelson was able to return home within an hour.

When Nelson returned to work on April 5, 1995, he filled in his time card for March 29, but didn't deduct the time he spent responding to the barn fire for cdf. Evidently someone told UTC that Nelson was performing other work while he was supposed to be caring for his wife, and Nelson was asked for an explanation. When he told how he had responded to the fire while a friend cared for his family, UTC reversed his time-card entry, concluded that he engaged in time-card fraud, and fired him. Nelson's supervisor claimed that he had cheated the company.

Nelson then sued UTC, claiming that his discharge

1) violated public policy,

2) violated the California Family Rights Act and

3) breached an implied contract that he would not be terminated except for cause.

The trial court dismissed Nelson's first two claims. The parties then agreed to have the remaining claim decided by a referee/arbitrator, and after a finding in Nelson's favor, both parties appealed various parts of the proceedings.

The appellate court first reviewed Nelson's public policy and cfra arguments and had little difficulty in upholding the trial court's decision to dismiss them. It concluded that Nelson had submitted no admissible evidence that his conduct in fighting a fire while on paid sick leave was used by UTC as a pretext to fire him for improper reasons, and further no evidence that UTC had discriminated against him because he had exercised his rights under the cfra. Nelson's argument that his dismissal violated an implied contract, however, was a different matter.

The court first had to consider if Nelson had an implied contract for employment, since he had no written contract. The California Labor Code creates a statutory presumption that employment for an indefinite period of time can be terminated at any time without cause. This presumption can be overcome, however, if there is an implied-in-fact contract requiring cause to terminate the employee. Such an implied-in-fact contract may be based on the employer's course of conduct and oral representations. In this case, the referee/arbitrator had found that there was such a contract, and the appellate court agreed.

When Nelson first applied to UTC for employment, he had completed an employment application, which stated that it did not create an employment contract. However, other parts of the application seemed to do exactly that, and the court found it to be ambiguous.

Furthermore, a UTC human resources specialist admitted that it was UTC's policy to terminate employment only for good cause. Additionally, UTC had written rules specifying what would constitute good cause for dismissal. The evidence also showed that Nelson had been employed at UTC since 1988 and that he had received periodic written work reviews, which rated his performance as good.

The court felt that all of this evidence, taken together, supported the conclusion that there was an implied contract that Nelson could be terminated only for cause. The question then became whether UTC indeed had sufficient cause to terminate him.

Good cause for termination was defined as "a fair and honest cause or reason, regulated by good faith on the part of the party exercising the power," as opposed to one that's "trivial, capricious, unrelated to business needs or goals, or pretextual." The court then reviewed the findings of the referee/arbitrator, who had said that although Nelson's obligation was to use his sick leave to care for his wife, he didn't violate that obligation by delegating it to a friend for about 45 minutes while he left to perform an emergent civic duty.

The referee/arbitrator continued that by almost any reasonable standard, Nelson's brief absence from home wasn't inconsistent with his status on sick leave to care for his wife. He further found that reasonable minds might differ as to whether Nelson should have debited himself an hour of time on his time card to reflect the time he spent fighting the fire.

However, the $8 stipend he had received from the cdf didn't necessarily result in double compensation. Had Nelson deducted the hour, it appears that he would have saved an hour of sick leave that he could have taken later in the year if circumstances warranted. The referee/arbitrator concluded that the fact that Nelson didn't deduct this time amounted, at most, to an honest mistake, and clearly didn't rise to the level of time-card fraud, UTC's stated reason for terminating him. Consequently, the court affirmed the earlier proceedings, finding that Nelson had been improperly discharged.

The court then reviewed the referee/arbitrator's award of damages. He had examined Nelson's jobs since termination, compared the differences in wages and benefits, and concluded that Nelson was entitled to $29,800 from UTC. The company objected to this amount, saying that part of it was due to a $7,000 penalty Nelson had paid because of early withdrawal from his UTC pension plan. The court, however, agreed with the referee/arbitrator that Nelson was entitled to have the $7,000 penalty included in his award, since he had had to withdraw the money to meet his living expenses.

UTC also argued that the totality of Nelson's earnings from the time he was terminated until the time of the award showed that he was actually better off financially than if he had stayed at UTC. The court disagreed, saying that this argument was based on an assumption that Nelson would not have enjoyed any promotions had he stayed at UTC. Consequently, the court affirmed the award of $29,800 in damages to Nelson.

The volunteer fire service is a complex organization, depending on a lot of factors to succeed and flourish. One of the key factors is public support, especially from employers. Some factors to think about include:

* If a legislative solution is sought, it will almost certainly require the support of employers' organizations. Significant education will be necessary.

* The fire service must understand that legislation mandating release from work to respond to calls carries a serious responsibility. Great care must be taken to prevent abuse of this opportunity.