Q:
I am a member of a volunteer ambulance company. We are thinking of instituting a paid service in order to reduce our call turnover rate. I am familiar with the rules and regulations of the Garcia Law. If a volunteer member were to become part of the paid service, would it be the best interest of the company to have the volunteer quit the volunteer ambulance company so as not to violate the Garcia Law. What if the volunteer company, instead of going with the paid service, chooses to give the volunteers a nominal amount of money for each call taken, for example, $10.00 per call . Would this be in violation of the Garcia Law?

My next question concerns the liability of the volunteer company. My ambulance captian insists on persuading a patient to go to the hospital, even when the patient refuses to go. The ambulance captain insists that if something happens to the patient after the care refusal is signed and doesn't go to the hospital, the volunteer
ambulance company could be sued. Please keep in mind we have a detailed care refusal that releases the ambulance company, ambulance attendants, medical command physician and facility. If the patient doesn't sign the care 
refusal and the ambulance company convinces the patient to go to the hospital  to get "checked out", does this constitute fraud when we bill for the service in HCFA's eyes?
Your quick response to these questions will be greatly appreciated. 

A:
To insure you understand what potential problems you and your agency might face, it is important to make sure that your understanding of the issues is accurate. Some of it seems like semantics, but you might be surprised how what you say and how you say it may lead to trouble. Garcia is not a law. It was a ruling. The applicable statutory authority that formed the basis for this ruling is the Federal Fair Labor Standards Act. Condensed to its simplest interpretation, the Garcia ruling states that an indidivual cannot be an employee and a volunteer for the same agency in the same capacity.

Your agency is considering "instituting a paid service". Do you intend to hire paid staff as employees of your existing agency or set up a separate entity that hires staff and then provides them on some sort of contract basis to your agency when no volunteers are available? If individuals serve in both paid and volunteer capacities with the same agency, the Garcia ruling is probably applicable. By contracting them separately, you might avoid this, or the Department of Labor may view this as an attempt to get around the wage and hour laws. You ask whether it would be in the "best interest of the company" to have them "quit as volunteers so as not to violate the Garcia Law". I cannot speak to what is in the best interest of your company, except in general a term. Violating FLSA is not in your best interests. Your agency must also consider whether the coverage hours lost by not permitting individuals to volunteer because they also hold "paid status" will be offset by the hours gained from having paid staff available.
You may simply make matters worse. Can you pay individuals a "nominal amount of money" to respond to calls. I would say yes, provided you pay everyone who responds, the amount paid is equal to or exceeds the federally mandated minimum wage, and provided that if they exceed 40 hours  worked in any given week they are paid time and one half their regular hourly rate. 

In short, if there is a major traffic accident, and 18 volunteers show up, you owe 18 people money. It's a mess and this should not be taken too lightly. Then again, let's not freak out and leave the money to the cat. Check out some of the other letters on this subject written to this site.

On Getting Sued. Your "captain" is concerned you might get sued for not taking someone somewhere they don't want to go, or treating someone the way they don't wish to be treated, in the event that "something" goes wrong, even if they sign a form that says theydon't want to go there or be treated that way. He is partially right, but anyone can sue anyone for anything (and if he were in therapy this level of paranoia would probably cost him double time). Did I fail to mention false imprisonment and/or kidnapping? No matter, let's move on. All the "detailed care refusals" in the world don't prevent you from being sued. They are not without their benefits, but several courts have ruled that an individual cannot waive their right to redress and/or compensation before the fact. The issue is whether you lose the case, which depends on 1) you had a duty to act, 2) you breeched that
duty 3) there was harm and 4) there is a causative relationship between the breech and the harm. It's called negligence. The issue is whether the patient's decision is informed, i.e., the understand the risks and/or benefits of their decision (and don't say stupid things like, "if you don't go to the hospital you could die").

Lastly, on the billing issue. The HCFA regulations state that if a provider renders a service to a patient that the provider knows, or reasonably should have known, is not covered or will not be covered, then the provider cannot attempt to collect from the patient if the claim is denied, unless the patient is informed in advance that the services may not be covered and signs a form that they understand this. Your agency would, of  course, try to word the claim in such a manner as to get paid, which may include an effort to misrepresent the severity and/or nature of the injuries and or services rendered, and this would of course be fraud. Any knowledgeable
carrier would deny payment based on a lack off medical necessity, your agency would send a bill, and, since you had coerced them into accepting services they did not want, they should refuse to pay you. See you in court, or in the media, your choice. 
You asked for quick, and you got quick, which is not small trick during the holiday season. To the extent that your questions seem to impart a sense of urgency, indicating you are a gnat's eyelash from doing something, might I remind you that "fools rush in where angels fear to tread".. 

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17- Tax advisor says one thing, Dept. of Labor another!

Q:
My wife and I run a small FA/CPR teaching business part time. I am the EMS Director for a large rural county service full time. Some of my employees at the EMS want to teach for us...and I could sure use them as the requests for classes are overwhelming and the county does not support public classes.

Here's the dilemma. My tax advisor claims the employees may be considered contract labor if certain requirements are met (and they are) but the Department of Labor claims that because I supervise the potential
employee at both places, the arrangement should not occur because of potential
overtime issues...even though the two businesses are not related.

A:
Someone from the Department of Labor was really feeling their oats when they
gave you that pearl. The easiest way for them to make sure they don't have
to deal with this later, which is the goal of all good bureaucrats, is to simply blow you off with some nonsense. Your tax advisor, even though he has a greater level of risk in giving bad advise than some bureaucrat, seems to have provided the only source of intelligent commentary at this stage of
the discussion. Anyway, here are a few considerations and questions that
should keep even the DOL busy for the foreseeable future. Do the two entities perform similar functions in regard to offering classes of this nature? If the answer is no, then one can argue that the activities
are unrelated. Overtime compensation under FLSA has fairly little to do with
who is in charge and more to do with what one does for whom and how often.
Second, as contract employees, will the people who provide training be paid
as wage employees (w-2, withholding, etc) or under a personal service agreement (1099)? The latter is preferred for this type of arrangement as it eliminates a lot of bookkeeping and expense on your part. KISS. Last, if you want to extend the arms length relationship between these two
companies a little farther, just for the extra insurance, put your wife in charge of the training company, presuming she doesn't work for the county EMS agency in any supervisory capacity and has not indicated she plans to seek ownership of the business in any pending yet heretofore undisclosed
divorce proceeding (only kidding).

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16- Paid to fight fires/ volunteer as EMT

Q:
 If I am a paid firefighter in my town can I join the local volunteer rescue squad. I am an EMT. I am told I cannot volunteer but my job is a firefighter. The taxpayers pay a district tax for fire protection.
We can be called out for mutual aid in our district from the local EMS.
(Rarely does that occur)
I am told I can only be an associate member of the rescue squad and
I am eager to challenge this...

A: 
If the two organizations are separate corporations and/or entities, particularly if one is a government entity and the other is private, and they do not engage in the same activities for the same jurisdiction, then frankly I don't see a problem. This presumes that periodic mutual aid, and things such as first response, do not constitute a primary duty for the fire department. Thus one is not being paid and volunteering in the same or
similar capacity for the same entity at the same time, which was the essence of the findings in Garcia. The associate member status has been used as a means to further extend the arms length relationship in these cases, but may be, as I believe is the case here, overkill.

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18- Getting my proper pay

Q:
I used to work for a service that worked Medics for 24 hour shifts, for which we were only paid for 16 hours, with 8 hours deducted for sleep time. You know the story, if you were up for more than three hours during the night, you got paid for the full 8 hours. This usually did not happen very often. During the work week, in order to make sure Medics got 40 hours, they were usually scheduled for two 24 hour shifts (32 hours), and then sometime during the week, a 24 hour shift would be split. By this, I mean a medic would be scheduled to work from 8 am to 4 pm and paid for 8 hours. Then another medic was scheduled for 4 pm to 8 am and paid for 8 hours (16 hours minus 8 hours sleep time). I later discovered that if an employee works less than a 24 hour shift, they must be paid for all hours worked. Is this true or have I spoke with the wrong Department of Labor employee? I filed a claim for this to be investigated over 9 months ago because of the information that I obtained about this, but all I have ever heard is that the DOL is investigating it. I was also informed that the Department of Labor can only go back 2 years to collect back wages. If this is true, that means that if something isn't done soon, then I will lose some of the money that is owed to me, which is actually a pretty good chunk, if you figure that some of those hours put me into overtime. If this is true, I need to inform my current employer in a tactful way that if an employee works less than a 24 hour shift, he/she must be paid for all hours worked, because we have several employees who work other jobs during the day,
and work EMS at night and are not paid for all hours at the service. Any suggestions? 

A:

All in all, you are correct in your  interpretations, but some points of clarification are warranted. 

The "sleep time" provision applies only to 24-hour shifts, and usually they are scheduled shifts. There are no 16-hour exceptions or any other exceptions for that matter. This is addressed under the FLSA for ambulance services, a publication that can be obtained from, you guessed it, the Department of Labor. For any shift less than 24 hours, "hours worked" means hours on duty and must be paid at either the straight time or overtime wage rate. The determination of which wage rate applies depends on whether the total number of hours for the week is 40 or less (then it is paid at straight time) or more than
40 (in which case it is paid at the applicable overtime wage). Let's quickly do the math. You are scheduled to work Sunday and Wednesday on 24-hour shifts. You work 16-hours each day and sleep all night both days. Saturday, you come in at 4P and are on duty until 8A the following day. You have now worked 48 hours and are due 40 hours straight time and 8 hours OT, and if by chance you get up an hour here or an hour there during the first two days, but do not exceed the "3 hour" rule, these hours exceed the 40 hour limit for the week and must be paid at OT wage. We can be talking about some serious money here. 

You did not speak to the wrong person at DOL. You simply made the mistake of believing they have the time, or the interest, in protecting your rights as an employee under the law. The DOL can often be a waste of space, almost as big a waste as OSHA. So holding their feet to the fire is often part of the game. Call the person back and ask them for a written response to your filing, demand to know the status and if you are not satisfied, ask to speak to their supervisor. Continue with this tactic until you run out of supervisors or until they are sufficiently sick of you that they will get off their lazy backside and do something. 

Do not confuse the "limit of liability" with a "statute of limitations". The law states that an employer can be held liable for FLSA violations going back two years, unless it can be shown that the employer's conduct was a willful attempt to circumvent the FLSA. If this can be shown, the liability can go back 3 years. The liability includes back wages and may also include fines and civil penalties. If you filed the complaint when the violation occurred, then I believe the two year period goes back from the date of filing, not the date they finally issue a ruling. In my opinion, an employer who violates this provision under the law does so willingly. I cannot think of any good reason to continue to use this outmoded and cumbersome timekeeping practice, other than to try to nickel and dime the workforce. It's almost as Mickey Mouse as the "overtime exemption" that some employers have used when an employee crosses state lines (interstate commerce exception). So, while tactful is a nice way to start, if your employer hired me to provide consulting services, I would inform him/her that they were toast. 

Can we settle this out of court? Maybe. You can go to your employer, explain the regulations and how they work (I would take a copy of the DOL Publication on FLSA for ambulance services, since I assume your employer can read). Offer them the chance to settle any and all claims for back wages for any employees affected during the proceeding two-year period. 
They will also agree to discontinue the use of this practice in the future. You can do this by yourself, or take a few friends (fellow employees) with you, but be careful not to come across as looking like you are trying to intimidate. After all, this is the new millennium and we all know how thin skinned people are today when you point out to them how their actions are self serving and motivated by the desire for personal gain at everyone else's expense. If, however, for some unexplained reason you are rebuffed, reread the paragraph above on dealing with DOL, and file a complaint, except this time get a signature from
every employee affected. They are more responsive to numbers than facts.