CITIES AND TOWNS ‑- DISTRICTS ‑- FIRE PROTECTIION ‑- FIREMEN ‑- APPLICABILITY OF MINIMUM WAGE ACT TO MUNICIPAL FIRE FIGHTERS
(1) Persons employed as fire fighters by cities, towns, or fire protection districts are not exempt from the state minimum wage act (chapter 49.46 RCW) by reason of RCW 49.46.050(5)(g) which exempts "Any individual engaged in forest protection and fire prevention activities."
(2) Municipal fire fighters working a 24-hour shift who sleep at the fire station and are considered to be on a call basis are, however, exempt from the state minimum wage act pursuant to RCW 49.46.010(5)(i) which exempts ". . . Any individual whose duties require that he reside or sleep at the place of his employment or otherwise spends a substantial portion of his work time subject to call, and not engaged in the performance of active duties."
(3) Persons serving in the capacity of volunteer fire fighters, unless exempt under RCW 49.46.010(5)(i), supra, are subject to the state minimum wage law if they are compensated for their time such as by pay per fire call or pay for drill time; and this is true even in the case of those volunteer fire fighters who are also employed on a full time basis in some other department of the same municipal corporation.
- - - - - - - - - - - - -
November 30, 1976
Honorable Alan Bluechel
State Senator, 45th District
12534 68th Avenue N.E.
Kirkland, Washington 98033
Cite as: AGO 1976 No. 21
By recent letter you have requested our opinion regarding application of the provisions of the Washington Minimum Wage Act, chapter 49.46 RCW, to fire fighters serving local governmental jurisdictions throughout the state. Your questions are as follows:
[[Orig. Op. Page 2]]
"(1) Will all firefighters [still] be excluded from the law under definition [RCW] 49.46.050(5)(g)‑-Any individual engaged in forest protection and fire prevention activities?
"(2) Will firefighters working a 24-hour shift that sleep at the station and are considered to be on call basis, be excluded as per [RCW] 49.46.010(5)(i)‑-Any individual whose duties require that he reside or sleep at the place of his employment or otherwise spends a substantial portion of his work time subject to call, and not engaged in the performance of active duties?
"(3) Will persons acting in the capacity of volunteer firefighters be subject to the [Minimum Wage] law if they are compensated for their time, such as pay per call and pay per drill time?
"(4) Employees for a municipal corporation, working eight hours a day five days a week that put in the normal 40-hour week want to be active in the community fire department; are they subject to the [Minimum Wage] law for their fire department activities if they receive pay for calls and drills?"
We answer question (1) in the negative, question (2) in the affirmative and questions (3) and (4) in the qualified affirmative for the reasons set forth in the following analysis.
As a preliminary matter we note that your questions were prompted by the recent decision of the United States Supreme Court in National League of Cities v. Usery, U.S. , 49 L.ed [[L.Ed.]]2d 245 (1976). In that case the Supreme Court held that the minimum wage provisions of the Federal Fair Labor Standards Act1/ may not constitutionally be applied to employees of the several states or their political sub‑, divisions because such application would impair the states' ability to function within the federal system. In so ruling [[Orig. Op. Page 3]] the Court did specifically address the difficulties perceived by cities and towns in staffing adequate fire departments and made it clear that such agencies are among those which could not be regulated by the minimum wage provisions of a federal act. At the same time, however, there is nothing in the Court's opinion in the National League of Cities case that would prohibit an individual state from establishing a minimum wage scale applicable to its own municipal corporations, political subdivisions, or other units of local government. Moreover, even the federal act has always permitted a state to apply its own standards if they are more stringent. See, 29 U.S.C. § 218. With this in mind let us turn, now, to the Washington Minimum Wage Act as contained in chapter 49.46 RCW.
By this act (originally passed in 1959 as chapter 294, Laws of 1959) the legislature has established minimum wage standards which are to apply to "all employees in this state, unless exempted herefrom." RCW 49.46.120. RCW 49.46.020 establishes minimum hourly wages for most employees over the age of 18. RCW 49.46.130, which was added in 1975,2/ governs when overtime rates must be paid to employees for a work week of more than 40 hours. A number of employments are then specifically exempted from the act's coverage by means of legislative restrictions on its definition of the term "employees." See RCW 49.46.010(5). In addition, certain other exclusions are provided for by RCW 49.46.025,3/ RCW 49.46.0604/ and RCW 188.8.131.52/
Prior to 1975, all employees of units of local government (which, of course, included municipal fire fighters) were specifically exempted from coverage under the state act by a provision enacted in 1961 which excluded from the definition of employee "Any individual employed by the state, any county, city or town, municipal corporation or quasi municipal corporation, political subdivision or any instrumentality [[Orig. Op. Page 4]]
thereof.6/ " This blanket exception of governmental employees, however, was eliminated by the legislature through its enactment of § 1, chapter 289, Laws of 1975, 1st Ex. Sess. Your specific inquiries, accordingly, are a result of that later legislative action.
First you have asked:
"Will all firefighters [still] be excluded from the law under definition [RCW] 49.46.010(5)(g)‑-Any individual engaged in forest protection and fire prevention activities?"
RCW 49.46.010(5)(g) which has been a part of the law since it was first enacted in 1959, provides that:
"'Employee' includes any individual employed by an employer but shall not include:
". . .
"(g) Any individual engaged in forest protection and fire prevention activities;"
It seems apparent, of course, that if municipal fire fighters are to be deemed excluded from the minimum wage law on the basis of this provision it must be because of the term "fire prevention." Clearly, such personnel are not engaged in forest protection. In attempting to reach such a conclusion, however, we are immediately confronted with the fact that, in extending the law to cover state and municipal employees in 1975, the legislature also provided, as a qualification with respect to overtime pay requirements under § 3, chapter 289, supra (RCW 49.46.130), that:
"No public agency shall be deemed to have violated [the provision] . . . with respect to the employment . . . in fire protection activities. . . [if certain alternatives are met] . . ." (Emphasis supplied.)
If individuals employed in fire protection activities were already excluded pursuant to RCW 49.46.010(5)(g), supra, [[Orig. Op. Page 5]] it would have seemingly been unnecessary for the legislature to have included this latter provision in the law. Yet as you know, it is presumed that the legislature does not deliberately engage in unnecessary or meaningless acts. Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973). Thus, again noting also the fact that RCW 49.46.010(5)(g) was a part of the original, 1959, law which did not cover state or municipal employees at all, it seems more logical to conclude that in enacting that particular exemption provision the legislature meant only to encompass forest protection andforest fire prevention activities ‑ and not fireprotection, a term which, as evidenced by its use in § 3(2) of chapter 289,supra, is much more descriptive of the work in which municipal fire fighters are engaged.7/
It is also pertinent to observe that the minimum wage act is a remedial statute. In its declaration of necessity the legislature has addressed all employees generally. The declared purpose of the act is to establish minimum standards of employment within the state and, by establishing a minimum wage, to encourage employment opportunities within the state. RCW 49.46.005. The employees covered are "any individual employed by an employer" except those specifically excluded. RCW 49.46.010(5).
Remedial statutes are to be liberally construed to effect their purpose. Liberal construction dictates maximizing the coverage of such an act. See, e.g.,State v. Walker, 14 Wn.App. 348, 353, 541 P.2d 1237 (1975);Roza Irrigation Dist. v. State, 80 Wn.2d 633, 638-39, 497 P.2d 166 (1972). Conversely, the terms of RCW 49.46.010(5)(g) purport to create an exception to the application of the minimum wage enactment. The rule of statutory construction pertinent to exceptions to legislative enactments is that they are to bestrictly construed; and where certain exceptions are provided, no others will be assumed by implication. Hall v. Corp. [[Orig. Op. Page 6]] Catholic Archbishop, 80 Wn.2d 797, 498 P.2d 844 (1972);Insurance Co. of N.A. Co. v. Sullivan, 56 Wn.2d 251, 256-58, 352 P.2d 193 (1960).
Therefore, for all of the foregoing reasons we must conclude (in direct answer to your first question) that the terms of RCW 49.46.010(5)(g),supra, do not evince an intent by the legislature to encompass municipal fire fighters and so to exclude them from the requirements of the state minimum wage law as above described. We thus answer your first question in the negative.
Question (2): Next you have asked:
"Will firefighters working a 24-hour shift that sleep at the station and are considered to be on call basis, be excluded as per [RCW] 49.46.010(5)(i) . . .?"
RCW 49.46.010(5)(i), to which you have thus referred, provides that the term "employee" as used in the law shall not include:
"Any individual whose duties require that he reside or sleep at the place of his employment or who otherwise spends a substantial portion of his work time subject to call, and not engaged in the performance of active duties;"
Although it might, conceivably, be argued that this exclusion only pertains to time actually spent sleeping or on call, as such, pertinent legislative history, as recorded in the 1961 House and Senate Journals, is clearly to the contrary. See, Senate Journal, Ex. Sess., 1961, at p. 134 and House Journal, Ex. Sess., 1961, p. 147. The exemption applies to the type of employee described, as such, at all times ‑ according to the debate recorded therein. And, in context, that is what the statute itself says as well.
Therefore, even though municipal fire fighters are now covered by the state minimum wage law, where a particular fire fighter sleeps at his place of employment or otherwise spends a substantial portion of his work time on call, not engaging in active duties, that fire fighter will not be subject to either the minimum wage or overtime pay provisions thereof. We thus may answer your second question in the affirmative.
[[Orig. Op. Page 7]]
Your third question asks:
"Will persons acting in the capacity of volunteer firefighters be subject to the [Minimum Wage] law if they are compensated for their time, such as pay per call and pay per drill time?"
Let us begin our response to this question by explaining the term "volunteer fireman" (or fire fighter). That term, as we understand it, is largely of historic origin. It describes an individual who is primarily employed or selfemployed elsewhere (or, perhaps, is retired from full time employment) but who "volunteers" his services as a part time member of the fire department of a city, town or fire protection district. Particularly in the case of the latter (which are established under Title 52 RCW to serve rural areas), but also in the instance of many small cities and towns, it is quite common for the fire department to have only a small number (perhaps one or two) of full time, regularly compensated firemen and then to be supplemented by a larger group of such "volunteers." Those individuals, in most cases, receive no fixed monthly or other periodic salary, as such. However, as indicated by your question, they often do receive some form of monetary payment for their services ‑ usually in the form of a specified amount per fire call or drill period in which an individual volunteer fireman participates.
Conceivably, even such a volunteer fireman might, in a given situation, have duties or responsibilities which would bring him under RCW 49.46.010(5)(i),supra. If so, then our answer to your second question, above, would also apply here. The particular fireman would be exempt from the law even though other members of his class (municipal firemen, generally) are covered. But if RCW 49.46.010(5)(i) does not apply it is our opinion that, in the terms of your third question, persons acting in the capacity of volunteer fire fighters will be subject to the minimum wage act ". . . if they are compensated for their time, such as pay per call and pay per drill time."
In so concluding we are quite aware of another exemption in RCW 49.46.010(5); namely, subpart (d) which excludes from the definition of employee
"Any individual engaged in the activities of an educational, charitable, religious, [[Orig. Op. Page 8]] governmental agency or nonprofit organization where the employer-employee relationship does not in fact exist or where the services are rendered to such organizationsgratitously;" (Emphasis supplied.)
The problem, however, is that in the type of case you have posited the services cannot be called "gratuitous" even though the fireman is called a "volunteer" ‑ because he is paid for those services on a fire call or drill pay basis. This leaves only the possibility of an argument, under the same exemption provision, that in the case of a volunteer fireman ". . . the employer-employee relationship [nevertheless] does not in fact exist . . ." But that argument, as we will next explain, is one which was only recently considered and rejected by this office in the similar context of the Washington Industrial Safety and Health Act (WISHA).8/
In AGLO 1975 No. 76 [[to George Sellar, State Senator, on August 29, 1975, an Informal Opinion, AIR-75576]], copy enclosed, this office was asked that analogous question ‑ and in answering it we said, at pp. 3-4 thereof:
". . . In ordinary usage, the word 'employee' denotes one who (a) renders services for, and under the supervision of, another (b) for a specified salary, wages, or other (usually) monetary consideration. See, e.g., Webster's Third International Dictionary, p. 743; and Random House Dictionary of the English Language, p. 468. Accord, such cases as Sills v. Sorenson, 192 Wash. 318, 73 P.2d 798 (1937), in which the word 'employee' was said to import '. . . some sort of continuous service rendered for wages or salary and subject to the direction of the employer or master as to how the work shall be done.'"
We then ruled that at least where some form of compensation is paid the so-called "volunteer" fireman is, in fact, an employee under this "ordinary" meaning of the term. In short, we there determined that in fact the employer-employee relationship does exist between such volunteer fire fighters and the governmental units which they serve. The same answer, in our judgment, is equally applicable here, insofar as RCW 49.46.010(5)(d),supra, is concerned. Thus, in summary, we must answer your third question, supra, in the [[Orig. Op. Page 9]] qualified affirmative. Unless exempt under RCW 49.46.010(5)(i), supra, volunteer firemen who are compensated for their time, such as pay per fire call or drill, are now subject to the state minimum wage law as contained in chapter 49.46 RCW, supra.9/
Finally you have asked:
"Employees for a municipal corporation, working eight hours a day five days a week that put in the normal 40-hour week want to be active in the community fire department; are they subject to the [Minimum Wage] law for their fire department activities if they receive pay for calls and drills?"
An employee whose "regular" employment is for a municipal corporation would, of course, be covered by the minimum wage act while engaged as a volunteer fire fighter to the same extent as would be any other individual who performs services as a volunteer fire fighter for a municipal corporation. Therefore, in general, our qualifiedly affirmative answer to question (3) above, also applies here as well.10/
[[Orig. Op. Page 10]]
We trust that the foregoing will be of assistance to you.
Very truly yours,
PHILIP H. AUSTIN
Deputy Attorney General
VIRGINIA O. BINNS
Assistant Attorney General
*** FOOTNOTES ***
1/29 U.S.C. § 201, et seq.
2/Section 5, chapter 289, Laws of 1975, 1st Ex. Sess.
3/Excluding college students from the minimum wage requirements of RCW 49.46.020.
4/Exemptions for learners, apprentices, messengers and disabled persons.
5/Excluding certain employments from mandatory overtime requirements.
6/See, § 2, chapter 18, Laws of 1961, Ex. Sess.
7/This same analysis, we might add, appears to be equally applicable to RCW 49.46.010(5)(k) which exempts:
"Any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature."
Although for some purposes firemen are classified as officers rather than employees, if they were to be so classified for the purpose of this statutory provision (which was also added by the 1975 legislature pursuant to § 1, chapter 289, supra) then the above quoted excerpt from § 3 (RCW 49.46.130) would have been unnecessary.
8/Chapter 80, Laws of 1973, now codified as chapter 49.17 RCW.
9/If it is now desired to exempt all volunteer firemen from the state minimum wage law we would suggest the rather straightforward approach of simply adding to RCW 49.46.010(5) a new subpart covering "Any volunteer fireman enrolled under the provision of chapter 41.24 RCW"; i.e., the volunteer firemen's relief and pension system.
10/In addition, there is a further problem to be noted with regard to this particular question. It is entirely possible that the act's overtime provision, RCW 49.46.130, might also come into play if the municipal employee's regular 40-hour employment is within the coverage of the act, the volunteer fire fighting activity is not exempted, and the fire fighting and regular employment activities are performed for the same municipal employer. That section of the act dictates that, "No employer shall [with certain qualifications] employ any of his employees for a work week longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one‑half times the regular rate at which he is employed. . . ."