The FMLA and the “Personal Staff” Exemption

Darrell VanDeusen
Darrell VanDeusen

The Eighth Circuit has held that a public employee could not proceed with her claim under the Family and Medical Leave Act (FMLA) because she was on the personal staff of an elected official. Hemminghaus v. Missouri, 2014 U.S. App. LEXIS 12376 (8th Cir. July 1, 2014).   This decision follows a recent unpublished Sixth Circuit decision in Horen v. Cook, 2013 U.S. App. LEXIS 20737 (6th Cir. Oct. 10. 2013) and a 2005 decision from the Fifth Circuit in Rutland v. Pepper, 404 F.3d 921 (5th Cir. 2005).

In Hemminghaus, the plaintiff was a former court reporter to a Missouri circuit court judge. Like many state court judges, circuit court judges in Missouri are initially appointed by the governor but have to run in retention elections. Hemminghaus reported directly to the judge. The judge had the power to hire and fire Hemminghaus, control her working hours and her schedule. She was personally accountable to the judge and acted as sworn officer of the court when the judge was on the bench.

Hemminghaus sought FMLA leave to address issues related to the discovery that her nanny had abused her two preschool-aged children. She asked for time to deal with the emotional issues that the children were having as a result of the abuse. The judge did not always let Hemminghaus take the time off and, when he did, she had to find her own substitute court reporter.

After a few months, the strained relationship between Hemminghaus and the judge over her leave and his desire that she not tell anyone about the abuse resulted in the judge firing Hemminghaus. She sued. The district court granted the state’s motion for summary judgment and, referencing Rutland, the Eighth Circuit affirmed.

So what is this all about? There is no “personal staff” exemption specifically set forth in the FMLA. The way these courts reach the conclusion that the exemption applies to the FMLA is that the definition of “employee” under the FMLA is the same as that under the Fair Labor Standards Act (FLSA).

In Rutland, the court explained that Section 2611(3) states: “‘[t]he terms ‘employ’, ‘employee’, and ‘State’ have the same meanings given such terms in subsections (c), (e), and (g) of section 203 of this title [the FLSA].’ The explicitly referenced 29 U.S.C. § 203(e) contains the personal staff exemption, which excludes individuals ‘selected by the holder of a public office of a political subdivision to be a member of his or her personal staff.’ § 203(e)(2)(C).”

Looking to its decisions under the FLSA and Title VII, the Rutland court noted that a “nonexhaustive” list of factors to consider in determining whether an employee is a member of elected official’s personal staff includes:

(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.

Rutland, 404 F.3d at 924, citing Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th Cir. 1985).

In Hemminghaus, the Eighth Circuit held that the level of control the judge had over his court reporter qualified for the exemption. The Court (quoting the district court) rejected DOL Opinion Letters offered in support by Hemminghaus (see, e.g., FLSA2005-23, August 26, 2005) because “Th[e] author did not consider the facts of this case . . . . In light of my own interpretation of the case law, I do not find [the DOL reasoning] particularly helpful.”


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