Rules for Missouri Fire Protection Districts - Page 13
Parenthetical numbers in the text refer to sections of the current Revised Statutes of Missouri, abbreviated as RSMo.
FPDs might not think of themselves as employers needing detailed personnel policies. An FPD might have but one employee, and work arrangements may be informal. However, even with a single employee, an FPD is an employer. An FPD must have federal and state employer identification numbers (EINs), withhold income and Social Security and Medicare taxes from wages, and pay state unemployment insurance. Moreover, an FPD is considered a public employer. As such, an FPD must keep certain records under the federal Fair Labor Standards Act, known as FLSA, and compensate employees in accordance with FLSA rules (see Chapter XIII. Federal Fair Labor Standards Act).
Today, most public employees are covered by Social Security, but this was not always the case. Some long-term public employees who were not covered by Social Security may have been “grandfathered” when laws changed. An FPD could have employees who are covered by Social Security and others who are not.
In recent years, there have been many changes in laws that relate to employees. Most of the changes are the result of federal laws designed to eliminate discrimination. Only gradually have similar laws been adopted at the state level. These overlapping laws can be confusing. In some cases, they apply broadly to all workers, including volunteers; in other cases, they apply only to employees, or they may apply only to workplaces with a minimum number of employees, which might be four, 15, 25 or 75, depending on the section of the law. Many federal laws always apply to a political subdivision, such as an FPD, regardless of the number of employees or even if the FPD has no employees.
An FPD is not exempt from labor laws simply because it performs a public service. Rather, it should assume that all discrimination and employment laws apply, even if it has fewer than the “minimum number” of employees. Under modern civil rights legislation, including statutes sometimes referred to as “Civil Rights” or “1983,” (called this because of the legal citation, Title 42 of the United States Code, section 1983), an FPD might be sued over FPD conduct that is not otherwise covered by the specific statute. Damage claims can include attorney fees, which can be even more substantial than the underlying claim.
FPD board members protect themselves by staying well informed and scrupulously following employment laws. A board may also want to consider insurance that covers its decisions as an employer. Most insurance products, including workers’ compensation, general liability and even board errors and omissions coverage, do not cover personnel or wage disputes. Insurance protection in this area requires separate employment liability coverage, which may be expensive.
The statutes include a restriction that only applies to FPDs: “The board, acting as a board, shall exercise all powers of the board, without delegation thereof to any other body or entity or association, and without delegation thereof to less than a quorum of the board” (321.200). This means that FPD board members act as a group, not as individuals. Authorizing a member, including the chief or the office manager, to act for the board is strictly prohibited. The board is the decision-making body. However, the board can assign duties to the fire chief, other officials and employees that may involve what lawyers call “ministerial duties” to carry out the board’s policies.
The origins of statute 321.200 are uncertain. However, the statute emphasizes the board’s authority to make decisions by stating that the FPD board is in charge of the equipment, the personnel and the procedures for the FPD. While at times there may be decisions of a technical nature that require knowledge of firefighting that elected board members may not have, the statute is clear that all authority rests with the elected board.
Employees and volunteers
Lawyers, legislators and courts use the terms “employee” and “volunteer” in different ways, and telling them apart for legal purposes can be difficult. Volunteers, called unpaid employees by some, might receive a payment, such as a small honorarium called “show-up pay” when they attend a training session, or they might receive mileage or tuition reimbursement, especially when taking training far from home. Sometimes employees want to volunteer to fight fires – which, by the way, they cannot do unless paid at their regular rate of pay or at time-and-a-half, depending on the situation (FSLA §3[e][A]). Both employees and volunteers can be fired. Both employees and volunteers can be required to follow FPD policies, and both can be required to wear a prescribed uniform. Also, an FPD can be sued for the conduct of either type of worker.
When distinguishing between an employee and a volunteer, most will say that an employee is paid a “regular wage,” while a volunteer receives only “nominal compensation.” In 2007, the International Association of Fire Chiefs (IAFC) asked the U.S. Department of Labor for more explicit guidelines clarifying who is an employee and who is a volunteer. In response, the Labor Department’s Wage and Hour Division provided a letter stating that a person would be considered a volunteer if he or she is paid less than 20 percent of what a full-time firefighter receives in the same locality. This 20 percent guidance might also be useful to FPDs in contexts beyond the authority of the Wage and Hour Division, such as minimum wage, overtime and compensatory time.
FPDs have special circumstances
Firefighters, whether they are employees or volunteers, are given certain legal dispensation when responding to a call (300.100). This includes allowance to drive as fast as they think prudent, provided both lights and siren are working. However, firefighters are not allowed to disobey stop signs or lights until after slowing down. Every year, firefighters and other emergency personnel suffer serious injuries or line of duty deaths (LODDs) at stop signs or traffic lights. Also, an FPD can be sued if one of its firefighters causes a traffic injury or death by inattention to stop signs. Occasionally, a firefighter (or police officer or ambulance driver) is charged with manslaughter when a death results from running a stop sign.
As a result of speed, and because a fire tanker truck carrying thousands of gallons of water does not steer like a sports car, failure of firefighters to wear a seat belt and shoulder harness is particularly dangerous. Rollovers of top-heavy fire apparatus cause an appalling number of firefighter deaths and injuries.
Thus, it is important that FPDs have rules requiring firefighters to slow down or stop at every stop sign or red traffic signal and to wear seat belts and shoulder harnesses. The FPD should discipline any firefighter, whether an employee or a volunteer, who fails to obey these rules, even when driving a private vehicle to the fire station or a fire scene.
(See FPDs have special circumstances under Chapter XIV. Training, Physical Fitness and Equipment for more information about preventing LODDs.)
Special firefighter benefits
It is hoped that you will never need this information in your tenure as an FPD director, but you should be aware of special benefits that may be available to the families of firefighters who suffer a line of duty death (LODD). The Missouri Fire Service Funeral Assistance Team helps fire service organizations when a firefighter dies, even if the death did not occur during duty. If a firefighter dies, the employing FPD should immediately contact this organization for guidance and assistance, including funeral protocols, a firefighter flag for the family, badge shrouds, station and vehicle bunting, honor guard uniforms, etc. – there are even funeral protocols for the death of an FPD director.
The federal government provides a death benefit (just under $360,000 in fiscal year 2018) to the family of a firefighter who dies in the line of duty or from a heart attack within 24 hours of a non-routine stressful situation. The application for the benefit can require extensive medical records and is difficult to complete. The Missouri Fire Service Funeral Assistance Team can provide guidance to families in this situation. This application requires certain autopsy results to show the death was not caused by alcohol or drug abuse; for this reason, the family should not release the body to a funeral home until after an autopsy.
Missouri provides two death benefits to the surviving spouse of a firefighter killed in the line of duty. (These benefits are also available to surviving spouses of EMT, paramedic, first responder or law enforcement personnel). The first benefit is property tax relief on the family home as long as the surviving spouse does not remarry. The relief is provided through a special income tax credit that must be claimed annually on the state income tax return (135.090) The second benefit is a $25,000 death benefit from the Line of Duty Compensation Act (287.243, as currently written, will expire in 2025).
Other benefits may also be available. One of the nation’s large funeral home chains has been providing a free funeral service when an LODD occurs. Upon request, a uniform-manufacturing company has been providing a free dress firefighter uniform for the body of a firefighter. More information about these benefits is available from the Missouri Fire Service Funeral Assistance Team.
Hiring and firing the fire chief
In addition to the powers listed in Chapter II. FPD Powers and Duties(321.220; 321.600), the board of an FPD is authorized to carry out the work of the FPD, including employing such help and contracting for such work as is necessary to provide service to the FPD, and may pay reasonable compensation (321.200). Hiring and firing the FPD’s fire chief is one of the most important duties of an FPD board.
All persons employed by the board on behalf of the FPD are, by law, at-will employees. This means they are employed for an indefinite term, which either employer or employee may terminate at any time, for or without cause.
Expectations and evaluation of fire chief
One of the most important duties of the FPD is to appoint a fire chief. The fire service tends to be organized with a military-type command structure, and is strongly influenced by the personality and level of competence of the fire chief. The board should take seriously its role in selecting and working with the fire chief, who will lead the FPD’s day-to-day operations. When appointing a chief, the FPD board needs to communicate clearly and honestly with the candidates about its expectations. Once a chief is appointed, the board should evaluate the chief’s performance at least annually.
Generally, the fire chief is expected to be prepared for and informed on all aspects of the job. During interactions with the FPD board, the fire chief should provide multiple options for the board to consider along with proposing recommendations to the board for the best options. One of the strengths a chief should have is the ability to communicate with all levels of the organization and also with the community, either in person or through the public media. And, finally, the chief needs to understand and embrace the basic roles and responsibilities of the job, which can include;
- Providing organizational leadership;
- Overseeing daily management of the operations;
- Overseeing the staff, although only the FPD board may hire, fire, and discipline;
- Developing and recommending policies and standards to the FPD board;
- Implementing standard operating procedures or guidelines;
- Overseeing implementation of strategic plan decisions;
- Educating, informing, and communicating important information to the FPD board – both positive and negative;
- Keeping abreast of political, legal, financial and technological changes to emergency services;
- Ensuring compliance with FPD, Missouri and federal laws, rules and regulations;
- Analyzing FPD needs and helping develop the FPD budget;
- Serving as an official FPD ambassador of sorts and liaison to the public and media;
- Cultivating relationships with other agencies, governments and organizations, for example, hospitals, cities, counties, ambulance providers, etc.; and
- Overseeing, controlling and preserving FPD resources and assets.
Workers’ compensation insurance
Laws require any organization with five or more employees to have workers’ compensation insurance to cover its employees (287.030). Volunteers have sometimes been construed as employees by the courts, so consult with legal counsel before assuming they are not. (Orphant v. St. Louis State Hosp. 441 S.W.2d 355 (Mo. 1969)). This insurance provides medical insurance coverage for a firefighter injured on the job, disability insurance coverage for a firefighter injured on the job, and a modest death benefit for the family of a firefighter killed on the job.
The workers’ compensation benefits that volunteer firefighters might have at their regular jobs will not cover injuries from volunteering, so a separate policy by the FPD is needed. Also, because private health insurance often excludes injuries that could be protected by workers’ compensation, many times the volunteer’s private health insurance also will not pay. In addition, the disability and death benefits listed above for volunteer firefighters are particularly modest because they are based upon a benefit of $40 per week. If a volunteer firefighter is injured in a flashover, for example, an FPD workers’ compensation insurance policy would pay all medical bills but would provide only $40 per week disability pay for the time the firefighter was unable to work during recovery. If the firefighter supports a family, they may have difficulty getting through the recovery period on so little money. (Many generous employers will permit a firefighter who suffers an injury to draw vacation and/or sick leave pay, but employers are not required to do this.) For these reasons, many FPDs provide additional disability and death benefit protection for their fire-fighters (321.220; 321.600).
Currently, several insurance companies that operate in Missouri provide specialized insurance coverage for fire service organizations. These companies are familiar with the workers’ compensation problems, and other insurance companies can be educated about the problems and urged to provide reasonable assistance.
Workplace-related lawsuits do not happen often, but when they arise, they are unpleasant and can be extremely expensive, even for the winners. That is why employment liability insurance coverage is sold separately and why it is expensive. Employers have found that one of the best defenses available is to have a published handbook of employment policies that is followed scrupulously in all situations.
With this in mind, FPD boards are encouraged with advice and counsel from their attorneys to examine their existing written policies, compare them with policies being used in neighboring FPDs and review sample policies available from insurance companies or from reliable sources on the internet. Then, the board members should put together a set of policies the FPD can live with and can realistically follow. Keep in mind, because a policy that is ignored is evidence that can be used against an employer, the board must follow the policies it adopts.
(See License and certifications under Chapter XIX. Ambulance and EMS for more information regarding the impact of medical licensing and certifications on personnel policies.)
Historically, firefighting was conducted by voluntary social groups. Firefighting not only provided community benefit, but also was a form of group camaraderie. Like many social activities, it was frequently accompanied by the use of alcoholic beverages. As firefighting has become more complex, it has become more a professional and less a social activity. The risks of combining alcohol and firefighting are obvious. FPD board members and officers should be aware of the risks and ensure that alcohol is removed from the firehouse, if its use there is still allowed or condoned in the FPD.
Both Missouri and the federal government have enacted rules that govern minimum wages paid to non-volunteer workers. Laws also regulate the maximum number of hours a paid worker can work before the employer must pay an overtime premium (time-and-a-half).
Exemptions available under state law for public employers such as FPDs should be carefully considered before being used. Positions with lower pay, while lawful, may be challenging to fill, or may attract unsuitable candidates. (290.502).
Child labor laws
Many FPDs have “junior firefighting” or Explorer scouting programs for younger members of the community. FPD boards should be aware that laws enacted both by Missouri (294.005-150) and the federal government (Fair Labor Standards Act of 1938) regulate employment of children. Children may not work in hazardous conditions such as using power-driven machinery, maintenance or cleaning/washing of machinery, operation of any motor vehicle, and anything dangerous to life, limb or health – that is, most firefighting activities.
Additionally, work certificates from the school district superintendent are required for children working during the school year and there are limitations during the school year on how many hours children can work in a day and in a week.