TBA Law Blog

Posted by: Edward Phillips on Sep 26, 2008

Journal Issue Date: Oct 2008

Journal Name: October 2008 - Vol. 44, No. 10

Tennessee now has not one but two separate statutes governing the relationship between volunteer firefighters and their employers. The net effect is to protect employees against discharge based upon volunteer firefighting duties and to require payment of wages, vacation or sick leave when volunteer firefighters are absent from work in certain circumstances.

Since 2003, Tenn. Code Ann.  § 50-1-307 has banned termination of volunteer firefighters "solely" because they are absent or late to work in order to respond to an emergency prior to reporting time, but allowed employers to "charge" lost time against the employee's regular pay. In other words, the time off was without pay. It also permitted employers to request documentation. Sound simple? It just became much more complicated, here's how.

Effective July 1, Tenn. Code Ann. 50-1-309(a)(1) provides that "notwithstanding the provisions of  § 50-1-307," any employee who is an active volunteer firefighter "may be permitted to leave work" to respond to fire calls during regular work hours "without loss of pay, vacation time, sick leave or earned overtime accumulation" (emphasis added). In addition, an employee who assists in fighting a fire for more than four hours can take off the next work period within 12 hours following such response and use vacation or sick leave, or be off without pay if vacation or sick leave is unavailable.

Similarly, under  § 50-1-309(a)(2), a volunteer firefighter who "worked" more than four hours the prior day or night as a volunteer firefighter "in an emergency" may take off the next scheduled work period within twelve hours following the emergency with vacation or sick pay, or without pay if none is available (emphasis added). Thus, employees who either leave work to fight fires or respond to emergencies outside of working hours for four (4) or more hours are entitled to "down time" and employers must allow them to use available sick or vacation time to do so.

At Tenn. Code Ann.  § 50-1-709(b), the statute permits employers to require the employee to submit a written statement from the chief of the volunteer fire department verifying that the employee "responded to a fire or was on-call" and specify the date, time and duration of such response.

The new statute raises a host of questions. One obvious question is, "Why didn't the legislature repeal the preexisting legislation, since the old statute did not require payment of wages and the newly enacted statute does?"

Answer: The earlier statute focuses primarily on the rights against termination because of emergency-related absences. The new statute specifies the work periods or portions of work periods that a firefighter has the right to take off to fight fires, or recover from emergency work, and the extent to which the firefighter is entitled to pay or the use of paid leave.

There is also a limited circumstance where time off is not covered by  § 50-1-309 but is covered by  § 50-1-307. For example, where the firefighter is called to duty prior to reporting to work and the emergency does not occur on the preceding day or night,  § 50-1-309(a) does not apply, but the time off is still protected under  § 50-1-307. Example: Sam's shift starts at 3 p.m. He answers a call at 1 p.m. and arrives at work at 4 p.m. Sam is not entitled to pay for that hour, but also cannot be discharged solely because of his absence.

Another question arises about what duties the firefighter must be performing to qualify for the time off and the pay or paid time off. Under  § 50-1-309(a)(1) the firefighter must be responding to "fire calls," but  § 50-1-309(a)(2) refers more broadly to "emergency" responses. Is a volunteer firefighter who is called out of work to assist in dragging a river or respond to an environmental accident with no fire entitled to the benefits of  § 50-1-309(a)(1)? There is no clear answer.

Another curious provision is  § 50-1-309(b), which permits the employer to demand a written statement from the volunteer fire chief "verifying that such employee responded to a fire or was on-call" (emphasis added). On-call is not defined. Since volunteer firefighters are typically "on call" 24/7, the relevance of being "on call" is questionable, unless the term is intended to refer to the "emergency" work in  § 50-1-307 and 50-1-309(a)(2).

Reading the old and new statutes together results in the curious result that a volunteer firefighter is protected under  § 50-1-307(a) from termination if absent or late to respond to an emergency occurring prior to the employee's reporting time, but not protected from termination, at least under the clear wording of  § 50-1-307(a), for leaving work to fight a fire. The gap may be irrelevant because terminating an employee solely for absences covered by  § 50-1-309(a) would likely be in violation of the common law prohibition against retaliatory discharge for the attempted exercise of a statutory right. See Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528 (Tenn. 2002).

The new statute also raises a question under  § 50-1-309(a)(1) about the meaning of the term "earned overtime accumulation." When a firefighter leaves work to respond to a fire call, he or she must be compensated without "loss of pay ... or earned overtime accumulation." (emphasis added). What is "earned overtime accumulation"? A logical interpretation is that the employee must be paid for the balance of the shift, including any overtime that would otherwise have been worked, and that all such time should count as "hours worked" for weekly overtime calculation purposes.

Another ambiguity arises from the fact that neither  § 50-1-307 nor  § 50-1-309 defines "employer." Since public employment is generally controlled by Title 8 of the Tennessee Code, a public employer can argue that these statutes are inapplicable to it. That argument is assisted by the fact that the Public Protection Act, Tenn. Code Ann.  § 50-1-304, was amended in 1997 to define employers to include public employers. These statutes do not. Conservative public employers may nonetheless choose to act as if they are covered for the sake of avoiding a wrongful termination claim over a sympathetic situation that arises relatively infrequently and is relatively inexpensive.

As a practical matter, counsel for employers should advise their clients to consider including a volunteer firefighter leave policy in their next employee handbook. The policy should summarize when leave is available, the right to pay for the interrupted workday and the right to take paid vacation or sick leave for qualified absences. While not required, a written policy will help prevent managers (and even human resource managers) from unknowingly violating the law and avoid unnecessary litigation.

Edward G. Phillips EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLC in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.