Whether or not an employee is covered under the Family Medical Leave Act (“FMLA”) is an important consideration for all employers, both public and private. For public employers, the Act can have far reaching concerns as certain public employees may be exempt from the definition of “employee” as set forth in the Fair Labor Standards Act (“FLSA”), as such definition is incorporated into the FMLA. Accordingly, in determining whether coverage exists it is important to look at the statutory definitions of both “employer” and “employee”. Under the FMLA an employer is defined as any person engaged in commerce or in any industry or activity affecting commerce that employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. 29 U.S.C.A. §2611(4)(A)(1).
The FMLA defines “employee” as having the same meaning given the same term as defined in section 3(e) of the Fair Labor Standards Act (“FLSA”). The FLSA, codified at 29 U.S.C. 203(e) states as follows:
(1) The term employee means any individual employed by an employer;
(2) In the case of an individual employed by a public agency, employee means—
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(iii) Any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such an individual—
(A) Who is not subject to the civil service laws of the State, political subdivision, or agency which employs the employee; and
(1) Holds a public elective office of that State, political subdivision, or agency,
(2) Is selected by the holder of such an office to be a member of his personal staff,
(3) Is appointed by such an officeholder to serve on a policy-making level,
(4) Is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of the office of such officeholder, or
(5) Is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.
Accordingly, certain employees that are exempt from the definition of employees under the Fair Labor Standards Act, are also specifically exempted from the definition of employee under the FMLA. It should be noted however, that the employee must first be an employee who is not subject to the civil service laws of the State of Ohio. R.C. §124.11, et seq. All of these inquiries are fact specific and require a look at the actual job duties of the employee.
For example, in determining what constitutes a member of “personal staff”, courts have looked to the following factors: ( 1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position at issue is personally accountable to only that elected official, (3) whether the person in the position at issue represents the elected official in the eyes of the public, (4) whether the elected official exercises a considerable amount of control over the position, (5) the level of the position within the organization’s chain of command, and (6) the actual intimacy of the working relationship between the elected official and the person filling the position. Nichols v. Hurley, 921 F.2d 1101, 1110 (10th Cir.1990)
In Birch v. Cuyahoga Cty. Probate Court, 392 F.3d 151, 159 (6th Cir.2004) the court determined that the Magistrate was a member of Judge Donnelly’s personal staff and was not subject to the FMLA. The Birch Court made this determination because:
First, Judge Donnelly is an elected official, and Birch, like all the other magistrates at the Probate Court, serves at his pleasure. Second, Birch is personally accountable only to Judge Donnelly, who is responsible for hiring and supervising the magistrates. Third, as Magistrate Heidi Koenig testified at deposition, Birch (like all the other Probate Court magistrates) represents both the Probate Court and Judge Donnelly in the eyes of the public. Indeed, Birch admitted as much in a letter to Judge Donnelly prior to the commencement of this litigation. See J.A. 276 (“I want to thank you for the opportunity you gave me to serve you and the public as your magistrate. I always work diligently to represent you and this court as one of the best Judges and courts in Cuyahoga County.”). Fourth, Judge Donnelly exercises a considerable amount of control over Birch’s position because he has the power to hire, fire, and supervise her performance; controls Birch’s pay raises; relies on Birch to perform work that he is not available to do; and relies on Birch’s recommendations in carrying out court business. Fifth, the record indicates that Birch reports directly to Judge Donnelly; she is his immediate subordinate.
As to the sixth factor, the evidence suggests that Birch has an intimate working relationship with Judge Donnelly because Birch is only one of ten magistrate judges at the Probate Court, and Judge Donnelly depends on Birch to complete the work of the court. Birch contends that the relationship is not intimate because Judge Donnelly has provided very little by way of hands-on or day-to-day interaction with Birch. Her contention, however, is supported only by her vague, conclusory denial of regular contact with Judge Donnelly. See J.A. 325 (“My contact with management on a day-to-day basis occurs much more frequently with Magistrate Polito than with … Judge Donnelly.”). The undisputed facts remain that Birch, like the other magistrate judges, represents Judge Donnelly in the eyes of the public, completes work that Judge Donnelly cannot himself complete, and makes substantive recommendations to Judge Donnelly on matters before the court. Thus, Birch’s relationship with Judge Donnelly is intimate in the sense that their respective duties are heavily interdependent. Their relationship does not lose its intimate status merely because Birch is afforded a necessary degree of autonomy in her work, such that she and Judge Donnelly need not interact on a daily basis. Based on the totality of the factors, we hold that Birch is exempt from Title VII’s coverage as a member of Judge Donnelly’s personal staff.
Accordingly, when granting FMLA leave to an unclassified, public employee, the employer should check the statute and perform a job audit of the employee’s job duties, to ensure that they are covered by the FMLA.