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Unlawful Discipline/Termination of Volunteer Emergency Response Personnel

Labor and Employment Alert | August 21, 2012
by: David R. Zaslow

It is incumbent upon employers to maintain an awareness of any potential effects that disciplinary or termination decisions may have. One little-known prohibition of such actions relates to volunteer emergency response personnel. To encourage the efforts of volunteer firemen, fire police and emergency medical technicians, Pennsylvania law mandates that an employer of such personnel shall not discipline or terminate their employees for missing time due to an emergency response. Specifically, Pennsylvania law states:

Volunteer Firemen – Job Protection

§ 1201. Termination of employment; when prohibited.

No employer shall terminate or discipline an employee who is a volunteer fireman, fire police, or volunteer member of an ambulance service or rescue squad and in the line of duty has responded to a call prior to the time he was due to report for work resulting in a loss of time from his employment.

Despite the plain prohibition against discipline or termination, an employer is not entirely without recourse for the lost time of his employee. The employer may withhold the employee’s pay for the missed time, but may not take any further action which would adversely affect the regular pay of the employee. In the event that there is a willful or knowing discipline or termination of the employee, the employer shall be required to revoke the disciplinary action and/or reinstate the employee to his or her former position. Furthermore, the employer will be required to pay the employee for all lost wages and benefits for the period between termination and reinstatement, and will be responsible for the reimbursement of reasonable attorney fees associated with recovery under the statute. 

Additionally, a plaintiff under the statute has the burden of corroborating his or her emergency response by supplying the employer with a statement from the CEO of his or her volunteer group confirming the date and time of the response. 43 P.S. § 1203. In Giuffra v. International Paper Co., the plaintiff was a volunteer fireman who responded to a three-day state of emergency announced in response to a severe winter storm. Giuffra v. International Paper Co., 931 F.Supp. 372, 372 (E.D. Pa. 1996). Upon returning to his employment, the defendant questioned him regarding the reasons for his three-day absence and ultimately terminated him. Id. at 373. The plaintiff brought suit under 43 P.S. § 1201, claiming that he was wrongfully terminated due to his service as a volunteer firefighter. Id. However, the defendant successfully moved to dismiss the plaintiff’s claim because he failed to provide a statement of corroboration.

Pennsylvania law also holds that the statute provides an exclusive remedy. In addition to his claim under the statute, the plaintiff in Giuffra attempted to state a common law claim for wrongful termination. The court likewise dismissed the common law claim, citing the rule that, “…where a Pennsylvania statute announces a public policy supporting, and provides a remedy for, wrongfully discharged employees, no tort cause of action under the common law is available.” Id. at 373 (emphasis in original).

The law regarding disciplinary and termination decisions on volunteer emergency response personnel is well-settled, albeit largely unknown. However, an employer’s knowledge of laws such as this, is integral to avoiding the costs and rigors of any litigation that unawareness may create.

For more information regarding this alert, please contact Dave Zaslow at 215.864.6844 or zaslowd@whiteandwilliams.com.

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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