The act defines an “employee entitled to the protection of the act” 29 U.S.C. § 203(e)(2)(C) to include:
(C) any individual employed by a state, political subdivision, or an interstate governmental agency, other than such an individual —
(i) Who is not subject to the civil service laws of the state, political subdivision, or agency;\
I. Holds a public elective office of that state, political subdivision, or agency;
II. Is selected by the holder of such an office to be a member of his personal staff;
III. Is appointed by such an office holder to serve on a policy making level;
IV. Is an immediate advisor to such an office holder with respect to the constitutional or legal powers of his office; or
V. Is an employee in the legislative branch of that state, political subdivision, or agency.
Elected officials, their personal staffs, policy making appointees, and legal advisors are not covered (non-covered employees) as long as they are not subject to the civil service laws of their state or local government. Therefore, any non-elected individual employed by a municipal government who is subject to a civil service system is covered. According to the DOL regulations 29 C.F.R. § 553.11(c), the term “civil service” refers to:
“... a personnel system established by law which is designed to protect employees from arbitrary action, personal favoritism, and political coercion, and which uses a competitive or merit examination process for selection and placement. Continued tenure of employment under civil service, except for cause, is provided.”
In 1985, a new non-covered employee category was added to 29 U.S.C. § 203(e)(2)(C)(i-v) of the act. The amendment “excluded employees not subject to civil service law who work in the legislative branch of a state or one of its political subdivisions.” Thus, almost all non-civil service employees in the state legislature or county, city council or board are excluded by this provision. Additionally the Department of Labor has determined that “no matter what activity an elected official performs, he/she is not considered an employee for FLSA purposes.” DOL Wage and Hour opinion letter, December 3, 1986.
Also not covered by the act are personal staff members who are selected or appointed by elected public officials. According to 29 C.F.R. § 553.11(b), “the term ‘personal staff member’ includes only persons who are under the direct supervision of the selecting elected official and have regular contact with such officials.” “Personal staff member does not include individuals supervised by someone other than the official, even if initially selected for the position by the elected official.” 29 C.F.R. § 553.11(b). Furthermore, to qualify for the exemption, a personal staff member must not be subject to the civil service laws of the employing agency. It would not include all members of an operational unit, since all the members could not have a personal working relationship with the elected official.
To determine whether an employee is a member of an elected official’s personal staff, the Department of Labor (DOL) issued a Wage and Hour Opinion dated December 19, 1974, that provides a test of exclusion based on personal staff membership. Among the tests to be considered are the following:
- Is the person’s employment entirely at the discretion of the elected official;
- Is the position not subject to approval or clearance by the personnel department or division of any part of the government;
- Is the work performed outside of any position or occupation established by a table of organization as part of the legislative branch or committee formed by an act of the legislature; and
- Is the person’s compensation dependent upon a specific appropriation or is it paid out of an office expense allowance provided to the officeholder?
DOL further elaborates on this issue by stating in an opinion letter dated April 30, 1975, that, “individuals such as pages, stenographers, telephone operators, clerks, typists and others may be considered employees under the act.”