Benshoff v. City of Virginia Beach

• Decision Date: 08 June 1999
• Docket Number: No. 98-1965.,98-1965.
• Citation: 180 F.3d 136
• Parties: Gregg Alan BENSHOFF; Zeno Nichols, Jr.; Paul Robert Criswell; Jeffrey L. Floyd; George Marshall; Alan G. Taylor; Alan Paul Walters, Plaintiffs-Appellants, v. CITY OF VIRGINIA BEACH, Defendant-Appellee. Secretary of Labor, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

180 F.3d 136

Gregg Alan BENSHOFF; Zeno Nichols, Jr.; Paul Robert Criswell; Jeffrey L. Floyd; George Marshall; Alan G. Taylor; Alan Paul Walters, Plaintiffs-Appellants, v. CITY OF VIRGINIA BEACH, Defendant-Appellee Secretary of Labor, Amicus Curiae.

No. 98-1965.

United States Court of Appeals, Fourth Circuit.

Argued March 2, 1999.

Decided June 8, 1999.

COPYRIGHT MATERIAL OMITTED

ARGUED: Thomas Aquinas Woodley, Mulholland & Hickey, Washington, D.C., for Appellants. Stanley Graves Barr, Jr., Kaufman & Canoles, P.C., Norfolk, Virginia, for Appellee. ON BRIEF: Gregory K. McGillivary, Mulholland & Hickey, Washington, D.C., for Appellants. Robert J. Barry, Scott W. Kezman, Kaufman & Canoles, P.C., Norfolk, Virginia; Leslie L. Lilley, City Attorney, Richard J. Beaver, Senior Attorney, L. Stephen Emmert, Senior Attorney, City Attorney's Office for the City of Virginia Beach, Virginia Beach, Virginia, for Appellee. Henry L. Solano, Solicitor of Labor, Steven J. Mandel, Associate Solicitor, Paul L. Frieden, Counsel for Appellate Litigation, Leif G. Jorgenson, United States Department of Labor, Washington, D.C., for Amicus Curiae.

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge TRAXLER wrote the opinion, in which Judge LUTTIG and Judge MOTZ joined.

OPINION

TRAXLER, Circuit Judge:

Plaintiffs, firefighters employed by the City of Virginia Beach (the "City"), appeal an order of the district court denying their motion for summary judgment and granting the City's cross motion for summary judgment on plaintiffs' claim that the City violated the Fair Labor Standards Act (the "FLSA" or "Act"), see 29 U.S.C.A. §§ 201-219 (West 1998), by refusing to pay them overtime wages for hours they volunteered to private rescue squads which provide emergency medical services within the City. See Benshoff v. City of Virginia Beach, 9 F.Supp.2d 610 (E.D.Va.1998). We affirm.

I.

The material facts are not in dispute. Plaintiffs are seven master firefighters employed by the City. As such, the City requires them to be certified to render Basic Life Support ("BLS") services to individuals they encounter in the performance of their duties.¹ Also, it is not uncommon for fire department units to be dispatched on medical emergency calls if, because of time or distance, they would be able to arrive before a rescue squad. In either case, however, the firefighters are only required to provide BLS services until a rescue squad licensed to provide Advanced Life Support ("ALS") or an ALS certified rescue squad member arrives on the scene.²

In order for its firefighters to provide BLS services, the City has obtained a non-transport BLS license from the Commonwealth of Virginia. The City does not, however, possess an ALS license and does not require its firefighters to become certified to provide ALS care. Rather, the City is unique in that pre-hospital emergency medical services, and associated transport services, are provided by private, all-volunteer rescue squads, and have been since the 1940s. Currently, there are eleven such rescue squads which have obtained the requisite licenses from the Commonwealth to provide ALS services. Each rescue squad is a separately incorporated non-profit entity, governed by its own board of directors and by-laws. Collectively, the rescue squads enjoy a volunteer membership that exceeds 800 persons.

This case arises from each plaintiff's decision to obtain ALS certification and to join one of the volunteer rescue squads. Some plaintiffs did not decide to join a rescue squad until after becoming City firefighters.³ Others had volunteered for one of the rescue squads before becoming City firefighters.⁴ It is undisputed, however, that each plaintiff freely decided to volunteer, and that the City in no way coerced or otherwise pressured plaintiffs to obtain advanced certification or join a rescue squad. Indeed, plaintiffs testified that their decisions to join the rescue squads were motivated by personal, civic, charitable, or humanitarian purposes.

In 1997, plaintiffs filed this lawsuit against the City, seeking overtime compensation under the FLSA for their services as rescue squad members. Despite the undisputed volunteer nature of the services when donated, plaintiffs now contend that, since 1990, they have actually performed such services as "employees" of the City as that term is defined by and interpreted under the FLSA. We disagree.

II.

A.

The FLSA generally requires that all employers compensate their employees at the rate of one and one-half times their normal hourly rate for all hours worked in excess of a 40-hour week. See 29 U.S.C.A. § 207(a)(1) (West 1998). The Act's purpose is to protect "the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944). And because the Act is "remedial and humanitarian in purpose," id., it should be broadly interpreted and applied to effectuate its goals, see id.; see also Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 296, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985).

Those seeking compensation under the Act bear the initial burden of proving that an employer-employee relationship exists and that the activities in question constitute employment for purposes of the Act. See Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir.1986). Once this burden is met, the employer bears the burden of proving entitlement to any exemptions or exceptions to the Act's compensation requirements. See Johnson v. City of Columbia, 949 F.2d 127, 129-30 (4th Cir. 1991) (en banc).

The Act, however, provides little guidance as to what constitutes an employer-employee relationship or "employment" sufficient to trigger its compensation provisions. An "employee" is defined as "any individual employed by an employer," 29 U.S.C.A. § 203(e)(1), and an "employer" is defined as "any person acting directly or indirectly in the interest of an employer in relation to an employee," id. at § 203(d). To "employ" means "to suffer or permit to work." Id. at § 203(g).

The scope of these definitions, however, is not limitless. See, e.g., Tony & Susan Alamo Foundation, 471 U.S. at 295, 105 S.Ct. 1953; Isaacson v. Penn Community Servs., Inc., 450 F.2d 1306, 1308 (4th Cir.1971). "The Act's purpose as to wages was to insure that every person whose employment contemplated compensation should not be compelled to sell his services for less than the prescribed minimum wage." Walling v. Portland Terminal Co., 330 U.S. 148, 152, 67 S.Ct. 639, 91 L.Ed. 809 (1947). Accordingly, the definitions of "employ" and "employer" were "not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage on the premises of another," nor should they be interpreted so as to "sweep under the Act each person who, without promise or expectation of compensation, but solely for his personal purpose or pleasure, works in activities carried on by other persons either for their pleasure or profit." Id.; see also Tony & Susan Alamo Foundation, 471 U.S. at 295, 105 S.Ct. 1953. Thus, for example, in determining whether an employer-employee relationship exists for purposes of the FLSA, we have looked to see whether the individual seeking compensation can be said to have "displaced a bona fide applicant who desired to sell his services at prevailing rates, or . . . to be an exploited unorganized laborer, evils which the Act was designed to prevent." Isaacson, 450 F.2d at 1310.

Similarly, because the Act does not define which activities constitute "employment" sufficient to trigger its provisions, "employment" is to be determined by its commonly understood meaning, which is "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal, 321 U.S. at 598, 64 S.Ct. 698; see also Roy v. County of Lexington, 141 F.3d 533, 544 (4th Cir.1998). In making this inquiry, courts remain mindful that "the employer-employee relationship does not lend itself to rigid per se definitions, but depends upon the circumstances of the whole activity." Reich v. ConAgra, Inc., 987 F.2d 1357, 1361 (8th Cir.1993) (internal quotation marks omitted); see also Roman v. Maietta Constr., Inc., 147 F.3d 71, 75 (1st Cir.1998).

B.

With these principles in mind, we examine the plaintiffs' contention that, although they unquestionably "volunteered" to provide ALS services as rescue squad members, the FLSA demands that we consider them "employees" of the City when they performed the services. This result is dictated, plaintiffs assert, because the City created a Department of Emergency Medical Services ("DEMS") in 1990 to oversee and coordinate the provision of all emergency medical services within its boundaries and because, plaintiffs further assert, the services "necessarily and primarily" benefited the City. See Tennessee Coal, 321 U.S. at 598, 64 S.Ct. 698; see also Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973) (finding employer-employee relationship based upon "substantial control of the terms and conditions of the work of the employees").

1.

In order to address plaintiffs' contentions in this regard, we begin with a more detailed look at the events leading up to the City's creation of DEMS, as well as the extent of DEMS' "control" over the rescue squads and their members.

As an initial matter, the provision of emergency medical services within the City is governed by the Commonwealth of Virginia, which requires all public and private entities to meet minimum requirements for BLS or ALS licensure, and which requires all individual providers to obtain certification to provide BLS or ALS care. See 5A Va. Code...