Volunteer Fireman is Not an “Employee” of His Volunteer Fire Company for Purposes of CEPA

Sauter v. Colts Neck Volunteer Fire Co. No. 2, 451 N.J. Super. 581 (App. Div. 2017).  The Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14 (“CEPA”) protects “employees who report illegal or unethical work-place activities.”  CEPA defines an “employee” as one who “performs services for and under the control and direction of an employer for wages or other remuneration.”

After a series of unfortunate events, plaintiff, a volunteer fireman with the defendant fire company, sued the fire company under CEPA and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“LAD”).  He also asserted a claim for defamation.  Defendant moved for summary judgment, plaintiff withdrew his LAD claim, and the Law Division granted summary judgment to defendant, finding that plaintiff was not an “employee” who could invoke CEPA.  Though that ruling was based on “a comprehensive review of the law,” part of the rationale was the judge’s decision to follow an unpublished opinion of another Law Division judge in dismissing a similar claim by another member against the same defendant.  Plaintiff appealed, but the Appellate Division affirmed.  Judge Accurso wrote the panel’s opinion.

Plaintiff was a full-time employee of the Monmouth County Sheriff’s Office.  He was also a life member of the fire company.  Pursuant to a New Jersey statute, as implemented by a local ordinance, plaintiff and other volunteer fire company members were eligible for deferred compensation (“LOSAP”) benefits of between $400 and $,150 per year of active service, Colts Neck carried workers’ compensation and liability insurance on their behalf for incidents arising out of their volunteer fire company activities, and the firefighters were entitled to reduced fees on certain municipally-issued licenses and permits.  The firefighters did not, however, receive any actual pay.

Plaintiff conceded that he did not work for “wages,” but he contended that the LOSAP benefits constituted “remuneration” that gave him the protection of CEPA.  Judge Accurso disagreed.  The LOSAP benefits “nowhere near approximate” the value of the services that firefighters provide and do not change the essential nature of their positions as volunteers.  Though CEPA’s definition of “employee” is “broad,” and is to be liberally construed since it is remedial legislation, “volunteers, because they perform services without expectation or receipt of payment, are explicitly excluded” from CEPA prtoection.

Though that plain language analysis of CEPA disposed of the issue, Judge Accurso went on to apply the twelve-part (gasp!) analysis of Pukowsky v. Caruso, 312 N.J. Super. 171 (App. Div. 1998), which the Supreme Court adopted in D’Annunzio v. Prudential Ins. Co. of America, 192 N.J. 110 (2007), and is applicable to both CEPA and the LAD.  That test produced the same result.  In short, no matter the legal lens employed, “[a]s a volunteer member of his fire company, plaintiff stands outside the employment relationship which gave rise to the doctrine underpinning the statute and beyond the scope of the problem the Legislature designed CEPA to address.”

Plaintiff then argued that the court should extend CEPA in the interest of “public policy” because volunteer fire companies have been held to be “employers” for LAD purposes, and the two statutes should be read consistently.  But Judge Accurso said that the courts do not have power to rewrite statutes due to perceive public policy concerns, and in any event, “[t]he LAD’s definition of ’employee’ is broader than CEPA’s.”  Plaintiff relied on two cases from the 1970’s that had found volunteer firefighters to be employees under the LAD, but the differing statutory definitions of “employee” and the subsequent evolution of LAD jurisprudence, under which a volunteer fire company might now be seen as a “place of public accommodation” of its members but not an employer, called those opinions into question.

Finally, there was no error in the Law Division judge’s reliance on her colleague’s unpublished opinion in another case involving this same fire company defendant.  Though Rule 1:36-3 forbids a court from citing an unpublished opinion, and further states that unpublished opinions are not precedential or binding on any court, a court may properly rely on the reasoning of an unpublished case as persuasive.  Besides, since de novo review applied to the Appellate Division’s consideration of this purely legal issue, if the Law Division had erred in relying on the unpublished opinion, that error would have been harmless anyway.