Third Circuit defines "personal staff exception" to FLSA

Post 2 (of 2) on Clews v. Cnty. of Schuykill. Last time, I explained that the County had not waived its affirmative defense that the employees claiming unpaid overtime fell under the "personal staff exception" to the Fair Labor Standards Act (FLSA). This time, let's look at who that exception actually covers. 

The FLSA generally covers "employees," but excludes people who work for a state, political subdivision, or intergovernmental agency; are not covered by the applicable civil service law; and fall within one of several categories listed in the FLSA. That list includes those "selected by the holder of [a public elective office] to be a member of his personal staff.” 29 U.S.C. § 203(e)(2)(C)(ii)(II). Yeah, have I ever mentioned that there are a lot of exceptions to the FLSA and they can be complicated? Anyway, we call this one the "personal staff exception."

The Third Circuit first noted that many courts have looked favorably on Teneyuca v. Bexar Cnty., a Fifth Circuit decision identifying 6 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, 

Not official use.

(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.

That said, the list was not exhaustive, and even courts that adopted it sometimes added their own factors. The Third Circuit didn't exactly reject the Teneyuca factors, but did note concern raised in other contexts that "[t]oo often the factors in a checklist . . . result[] in rote following of a form containing factors where courts tally up and spit out a score without an eye on the principles."

Thus, the Court endeavored to distill the factors into two overarching themes.

[F]or an employee to be a member of an elected official’s personal staff,  

1) the official must work closely with the employee in a sensitive position of trust and confidence, and  

2) the official exercises personal control over the employee’s hiring, promotion, work conditions, discipline, and termination.

Of course, with the usual caveats and wiggle room.... both themes should (not must) be satisfied, "no single factor is dispositive," the themes "often overlap," and "[c]ontext matters." The Court noted that the Teneyuca factors may still be used but only to the extent they are relevant to the two th
emes.