Qualifying as an Employee under the Fair Labor Standards Act

from the October 2012 LEL Labor and Employment Law News

Any court decision that begins, “In August 2008, Plaintiff William Ellington accepted the position of Deputy Clerk of the City Council of East Cleveland and walked into a political crossfire.  The City Council wanted him in, but the then-Mayor, defendant-Brewer, stood in the way.” Promises at least a bit of drama. In addition to the drama, this Ohio case raises the fundamental employment question: Is this person an employee? Employee status affects whether a person’s rights are protected by law. In this case, the issue whether the plaintiff was a “legislative employee” affects whether he was protected by the Fair Labor Standards Act. Ellington v. City of E. Cleveland, Case No.11-3700 (6th Cir. Aug. 6, 2012)

In this case, a dispute between the mayor and the city council left the plaintiff with no pay for several months while the council and mayor bickered. The plaintiff’s status as an employee affected whether the plaintiff could sue for minimum wage and overtime provisions in the FLSA, as well as for violations of article II, § 34a of the Ohio Constitution and the Ohio Minimum Fair Wage Standards Act.

The outcome of the case hinges on the "legislative employee" exclusions to the federal and state minimum wage and overtime provisions. The Court of Appeals scoured the law and precedent and concluded that the plaintiff was an employee of the City Council, and, as a result was subject to the “legislative employee” exclusions to the federal and state minimum wage and overtime provisions. As a result, the plaintiff employee’s case was dismissed. The appellate court does a nice job of digging into the facts and legal analysis, although that is cold comfort for the plaintiff.