Yesterday, the Sixth Circuit issued a decision affirming summary judgment in favor of an Ohio city that was being sued by the City Council’s Clerk under the FLSA for the City’s several month delay in paying him due to a political dispute between the city council and the mayor over his hiring. Ellington v. City of East Cleveland, No.11-3700 (6th Cir. 8-6-12). The Sixth Circuit noted that the FLSA excludes from its coverage individuals, such as the plaintiff, employed by political subdivisions as legislative employees. The Court examined the economic realities to conclude that the plaintiff was employed by the City Council because, among other things, it could hire and fire him. The Court also found that he was not entitled to any recovery under Ohio law because it adopts the exemptions and exclusions of the FLSA.
Although the FLSA covers most employees, it excludes from its coverage certain persons, including:
Individuals who work for a state or a political subdivision . . . if they are not subject to the state’s or political subdivision’s civil service laws and fall within one of the following enumerated exclusions established by Congress: (1) elected officials, id. § 203(e)(2)(C)(ii)(I); (2) individuals who are chosen by an elected official to be a member of his or her personal staff, id. § 203(e)(2)(C)(ii)(II); (3) individuals appointed to a policymaking position by an elected official, id. § 203(e)(2)(C)(ii)(III); (4) immediate advisors to elected officials who counsel the official on his or her constitutional or legal powers, id. § 203(e)(2)(C)(ii)(IV); and (5) employees of the legislative branch or legislative body of a State or political subdivision that are not employed by a legislative library, id. § 203(e)(2)(C)(ii)(V).
In this case, the exclusion “of individuals employed by the legislative branch or body of a political subdivision”:
(2) In the case of an individual employed by a public agency, [employee] means—In other words, an individual is excluded from coverage if:
. . .
(C) any individual employed by a State, political subdivision of a State, 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 which employs him; and
(ii) who— . . .
(V) 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.
29 U.S.C. § 203(e) (emphasis added).
(1) the individual is employed by a state or a political subdivision thereof;
(2) he or she is not subject to the civil service laws of the State or political subdivision; and
3) he or she is employed by the legislative branch or body of a State or political subdivision but not by a legislative library.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
