WASHINGTON – A federal judge refused this week to throw out a 5-year-old agreement that prevented Montgomery County fire and rescue workers from “two- hatting” — working for the county and donating time at volunteer fire departments.
The Montgomery County Fire-Rescue Association Inc., which represents the county’s volunteer fire departments, was attempting to overturn the 1996 agreement between firefighters, Montgomery County and the volunteer departments.
“They want volunteers to be free to volunteer,” said Roger Powell, the association’s attorney.
The case began in 1986, when hundreds of paid firefighters at the volunteer departments filed suit under the Fair Labor Standards Act, claiming that they were eligible for overtime pay. The volunteer organizations said that, as public agencies, they were not subject to the same overtime laws as ordinary businesses.
But courts ruled that the volunteer fire departments were private employers, and could not claim the exemption from standard 40-hour workweek rules.
That ruling resulted in a settlement — which was not finally approved until 1996 — under which the volunteer departments agreed to pay millions in back overtime pay, and the county agreed to hire the firefighters as county employees. As a public agency, the county can claim an overtime exemption that lets police, fire or rescue personnel work a 54-hour week, or 216 hours over 28 days, without incurring overtime.
As county employees, however, the firefighters could no longer volunteer at their departments.
In its attempt to overturn the settlement, the association cited a 1999 case involving Virginia Beach firefighters, in which the 4th U.S. Circuit Court of Appeals found that firefighter’s volunteer activities on a rescue squad did not merit overtime pay.
“The court has ruled that. . . persons are not entitled to overtime pay for volunteer hours because the volunteer fire companies are separate and distinct entities,” Powell said.
The firefighters “volunteered to join the rescue squads and the fact that defendant (Virginia Beach) provided some financial assistance to, and oversight of the service provided by the rescue squads did not amount to sufficient control” to subject the city to the conditions of the Fair Labor Standards Act, the court wrote.
But Associate County Attorney Richard H. Melnick said the Virginia Beach case was not applicable to the Montgomery County situation, since the administration of volunteers and employees there and the services provided by the volunteers is different.
U.S. District Judge Deborah K. Chasanow ruled Monday that there was no mistake of law or fact and that upsetting the settlement would have unfairly affected the county and the volunteer fire departments. She also said the association missed the one-year deadline for filing its challenge of the settlement.
Powell explained the delay in filing the case by citing the difficulty in working with the many volunteer organizations. “It’s not as if it’s a regular business client that’s working every day,” he said.
The settlement was defended by the attorney for firefighters in the original case. “We believe it’s absolutely the right result,” said Thomas A. Woodley.
His statement was echoed by Melnick.
“It looks as if it closes the case. It upholds a judgment that was appropriate and should not have been set aside,” he said.
Chief Roger Strock of the Montgomery County Fire and Rescue Services did not believe that the 1996 agreement affected volunteer staffing in the county. “No one has left because of it,” Strock said.
Powell said he could file an appeal to the Supreme Court, but did not hold much hope that the court would hear the case. He said the best chance to overturn the 1996 agreement would if someone files a new overtime challenge.
“What now has to be done, if anyone is going to pursue this thing further, would be that someone is going to have to retest it,” Powell said of the overtime interpretation.