The service awards thus do not provide a guarantee of
consideration for the work performed. A volunteer firefighter may
work for twenty years and receive nothing in compensation if they
do not earn the requisite number of points in any particular
year. Further, a volunteer who works for less than a certain
number of years (presumptively set at 5), id., § 217(b),
forfeits his or her right to any benefit. Therefore, the service
awards do not constitute the sort of guaranteed "remuneration"
which establishes an "employer-employee" relationship.
Even were the Service Award benefit a guarantee of compensation
in exchange for the service provided, this Court believes that it
would still not constitute "compensation" because it is not
provided in a contemporaneous fashion. In analyzing whether an
individual is an employee or an independent contractor, the
Second Circuit has noted that "[i]n appropriate circumstances,
factors relating to an individual's economic dependence upon the
hiring party may be taken into account. . . ." Frankel v. Bally,
Inc., 987 F.2d 86, 90 (2d Cir. 1993). Although, as noted above,
the immediate issue is not a question of the character of the
hiring relationship but rather whether there is a hiring
relationship at all, nevertheless, the issue of economic
dependence would still seem to be logically relevant to answer
the question of what benefits constitute "compensation" since it
is generally the compensation provided in the job on which an
employee may be economically dependant. But see Craig J.
Ortner, Adapting Title VII to Modern Employment Realities: The
Case for the Unpaid Intern, 66 Fordham L.Rev. 2613 (May 1998)
(arguing that economic dependance may result from the reliance on
a volunteer position to create subsequent job opportunities).
If a financial benefit or a benefit with significant financial
value (e.g. general medical insurance) is received in an ongoing,
roughly contemporaneous fashion, then an individual might well
depend upon it, supporting a finding that they are in an
employment relationship. However, if the benefit is received only
after many years of services, then any concurrent dependance is
absent. At best, one might argue that a promise of a retirement
benefit frees up funds from other sources of contemporaneous
income which the worker might otherwise feel compelled to save
for retirement. However, such a hypothetical contemporaneous
benefit is too speculative and limited to suggest any real
The Service Awards do not provide any benefit until a person
reaches "entitlement age," which may be set no earlier than
fifty-five, see N.Y.Gen.Mun.Law § 215(4) (McKinney Supp. 1999)
and thus will result in little or no economic dependance by most
volunteer firefighters. For this reason, and because that benefit
is not a guarantee of compensation for work performed, this Court
finds that it cannot be considered "compensation."
Thus, the volunteer firefighters cannot be considered employees
under Title VII as a matter of law and the Fire District
therefore lacked the requisite fifteen employees during the years
1994 and 1995.
Accordingly, it is hereby
ORDERED that defendants' motion to dismiss the Title VII claim
pursuant to Fed.R.Civ.P. 12(b)(1) is GRANTED; and it is further
ORDERED that the Clerk serve a copy of this order on all
parties by regular mail.
IT IS SO ORDERED.