Principles for Public Safety Employment

and awarded backpay of the period from his summary dismissal from the sheriff’s department until his plea of no contest to two felony counts.

2. E MPLOYEES C OVERED U NDER THE FBOR All firefighters who are employed by a public agency, including firefighters who are paramedics or emergency medical technicians, and who have also passed probation are covered by the FBOR, irrespective of rank. The FBOR does not specifically define the term “firefighter,” although other statutes do. For example, workers’ compensation statutes define a firefighter as a “member of a fire department or fire service of the state, . . . excepting those whose principal duties are clerical, such as stenographers, telephone operators and other workers not engaged in fire-suppression or rescue operations or the protection or preservation of life or property.” 103 The FBOR does not apply to employees who are already protected by the POBR, such as some arson investigators. 104 a. Probationary Employees The FBOR does not apply to a firefighter who has not successfully completed the probationary period established by his or her employer. 105 Nonetheless, the probationary firefighter may be entitled to a “name-clearing” hearing (also known as a Lubey hearing) if the firefighter is discharged because of a specific act of misconduct which stigmatizes the firefighter. 106 LCW Practice Advisor

The FBOR does not distinguish between initial probation and promotional probation. Most likely, the FBOR applies to employees serving in a promotional probationary capacity, although an employee who is rejected from a promotional probation and restored to his or her former position would not be entitled to an administrative appeal.

b. Volunteer Firefighters The FBOR is silent regarding whether volunteer firefighters are entitled to its protections. While volunteer firefighters occupy a unique status amongst public sector volunteers, 107 the Legislature has generally taken steps to distinguish between professional firefighters and volunteer firefighters, clearly stating when volunteers are entitled to receive some of the same benefits. 108 Since the Legislature did not specify that volunteer firefighters are entitled to the protections of the FBOR, it is doubtful that it intended volunteers to be covered. In addition, since the FBOR applies to firefighters “employed” by a public agency and volunteer firefighters are generally considered to be “enrolled,” not employed, as firefighters, the proposition that volunteer firefighters are protected is even more doubtful. 109

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 37