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August 26, 2005
Dear Name*,
This is in response to your request for an opinion on the application of the Fair Labor Standards Act
(FLSA) to court reporters and court coordinators of Name* County. You
describe the court reporter as not subject to the civil service laws of the
state and as appointed by, directly supervised by, and serving at the pleasure
of the elected judge. The court reporters’ responsibilities include taking the
transcript of the court’s proceedings. The court coordinators are similarly
selected by the elected judge and serves at the judge’s pleasure. A position
description you provided shows that the coordinators report directly to the
judge, meeting with him or her regularly. The coordinators’ responsibilities
include managing the office and budget, organizing the court calendars and
dockets, monitoring court files, supervising others in the office, and
interacting with the general public, attorneys and litigants. We conclude that
the court reporter position is not exempt under the personal staff exemption,
but that the coordinator position is exempt.
Generally, the FLSA, covers an employee of a covered enterprise such as a state or local government.
However, FLSA § 3(e)(2)(C)(i)(II), copy enclosed, excludes from coverage any
individual employed by a State, political subdivision of a State, or an
interstate governmental agency who is not subject to the agency’s civil service
laws and who is selected by a public elective office holder of such an office
to be a member of his or her personal staff. The legislative history of the
personal staff exception in Title VII (which Congress expressly referenced in
creating the FLSA exception) suggests that Congress intended to limit the
exception to employees with an intimate relationship to elected officeholders.
See 118 Cong. Rec. 4492-93 (1972).
The regulations implementing the personal staff exception of the FLSA identify some relevant considerations in applying the exception:
The statutory term “member of personal staff” generally includes only persons who
are under the direct supervision of the selecting elected official and have
regular contact with such official. The term typically does not include individuals who are directly supervised by someone other than the
elected official even though they may have been selected by the official. For
example, the term might include the elected official's personal secretary, but
would not include the secretary to an assistant.
29 C.F.R. § 553.11(b). The Wage and Hour Division’s Field Operations Handbook (FOH) similarly explains that:
The “personal staff” does not include individuals who are directly supervised by someone other than the elected official even though they may be selected by and
serve at the pleasure of such official. Generally personal staff includes only persons who are under the direct supervision of the elected official and who have almost daily contact with him or her... It would typically not include all members of an operational unit, since all the members could not have a personal
working relationship with the elected official.
FOH, ¶ 10d04.
To determine whether an employee falls under the personal staff exception, courts in Title III cases
generally use the six factor test set out in Teneyuca v. Bexar County, 767 F.2d 148 (5th Cir. 1985). The factors are summarized below:
- whether the elected official has the power to hire or fire
- whether the employee is personally accountable to only the elected official
- whether is employee represents the elected official in the eyes of the public
- whether the elected official has a considerable amount of control over the employee
- the location of the employee’s position in the chain of command
- the closeness or intimacy of the work between the elected official and the employee.
The Fourth Circuit in Brewster v. Barnes, 788 F.2d 985 (4th Cir. 1986), found it important that
the position was not a high level position that did not require the rendering of advice in policy decisions. However, recently the Fifth Circuit in Taplin
v. Johnson, 90 Fed.Appx. 736 (5th Cir. 2004), found that an office administrator who did not render advice on policy was a member of the
personal staff of an elected sheriff for purposes of the statute. This court used the above six factor test, noting that the “exception should be ‘narrowly
construed’ so as to only apply to an elected official’s ‘first line
advisors’.” Id. at 739.
With regard to court reporters, we have previously concluded that they do not fall within the exemption.
See Opinion Letter dated November 27, 1998 (copy enclosed). As in your
letter, the November 27th letter states that the court reporters at
issue are appointed to their positions by a judge, are directly supervised by
the judge, serve at his or her pleasure, and are not subject to the civil
service laws of Name* . However, regardless of these factors, the
November 27th letter explains that court reporters do not fall under
the personal staff exemption because they do not have the highly intimate and
sensitive position of responsibility necessary to qualify for this exemption.
They do not render advice or counsel to the judges or have any intimate or
sensitive status vis a vis the judges. We also do not believe they represent
the judges in the eyes of the public or are first line advisors. Thus, because
court reporters do not have responsibilities of this nature, the personal staff
exemption does not apply.
The position of court coordinator has not been addressed in any previous opinion letters. However,
in an opinion letter dated September 12, 1997, we concluded that the personal
staff exception applied to a judge’s administrative assistant who had similar
levels of responsibility and interaction with the judge as the court coordinator here. We similarly conclude, in light of the factors discussed
above, that the court coordinator falls within the exemption.
With respect to the court
coordinator, the first factor in the six factor test is met because you
indicated that court coordinators are chosen by the elected judge, report
directly to him or her and serve at his or her pleasure. Second, in the job
description that you submitted to the Wage and Hour Division, you indicated
that the court coordinator’s only supervisor is the elected judge. Therefore,
the coordinator is accountable to the official only. The third factor is also
met because the job description indicated that the coordinator had daily
communications with the general public, attorneys, law enforcement personnel,
and others, both in phone and in person, on behalf of the judge.
Fourth, the job description also noted that in making the most important decisions of the position, the
sole standard used to help make or approve the decisions was the elected
official. This illustrates the fourth factor, that the official has a
considerable amount of control over the employee.
In looking at the fifth factor, it is important to consider whether the coordinator is a “first line
advisor.” Taplin, 90 Fed. Appx. at 740. The nature of the position was
described as that of a supervisor over other members of the office. Further,
because the coordinator is accountable to the judge only, in carrying out the
responsibilities for scheduling all matters before the court, monitoring all
court files throughout the progress of each case, and serving as the office
manager/budget manager in running the office, the coordinator is a first line
advisor.
The sixth factor is the most difficult to resolve. In determining the closeness and intimacy of the working
relationship, it is helpful to consider the Bland case. In Bland v. New York,
263 F. Supp.2d 526, 540 (E.D.N.Y. 2003), the employee was a personal
secretary who was hired by the judge, reported directly to him, and whose
position and responsibilities were directly controlled by him. The judge also
directly supervised her and she answered his phone, thereby representing him in
the eyes of the public. Therefore, the court found that she “possessed an
intimate and sensitive working relationship” with the judge.Id.
Similarly, the court coordinator described in your letter is hired/fired by the judge, reports
directly to him/her, meets with the public on a daily basis, is supervised
solely by the judge, is a supervisor of others in the office, and has full
control over the schedule of the docket which is reviewed only by the judge.
Therefore, like the judge’s administrative assistant in the September 12, 1997
letter, we find that the court coordinator fits under the personal staff
exception laid out in Section 3(e)(2)(C)(i)(II) of the FLSA and thus is exempt
under the statute.
Although you did not specifically inquire about the applicability of the overtime provisions to court reporters, it may be helpful to refer to Section 7(o)(6) of the FLSA (copy enclosed):
The hours an employee of a public agency performs court reporting transcript preparation duties shall not be considered as hours worked for the purposes of
subsection (a) if—
- such employee is paid at a per-page rate which is not less than—
- the maximum rate established by State law or local ordinance for the jurisdiction of such public agency,
- the maximum rate otherwise established by a judicial or administrative officer and in effect on July 1, 1995, or
- the rate freely negotiated between the employee and the party requesting the transcript, other than the judge who
presided over the proceedings being transcribed, and
- the hours spent performing such duties are outside of
the hours such employee performs other work (including hours for which the
agency requires the employee’s attendance) pursuant to the employment
relationship with such public agency.
In a fax received by the Department of Labor on November 12, 2004, you stated that the District Judges
decided as a group that the per page rate that court reporters can charge the
county is $3.50 per page; and they charge outside attorneys more and that rate
is sometimes negotiable. Thus, if this rate (or a lower maximum rate) was in
effect on July 1, 1995 or an outside party freely negotiated this rate with
the reporter, then the first part of the statute is met.
However, with regard to FLSA § 7(o)(6)(B), you stated that if a transcript is needed for the Court of
Appeals, then the Judge is required to give the court reporter time off to
prepare the record, and he or she is paid for that time as if he/she was
sitting in the courtroom. In the enclosed Committee Report that accompanied
the Court Reporter Fair Labor Amendments of 1995 (which added § 7(o)(6)(B) to
the FLSA), the Committee on Economic and Educational Opportunities explained,
“If the work is being performed while the official court reporter’s attendance
at the courthouse or some other location is required as part of the employment
relationship, the time spent preparing the transcript in that location will
continue to be considered ‘hours worked’ for purposes of the FLSA.” Therefore,
when the court reporter is required to take time off from his/her usual workday
to prepare a transcript and is paid as if he/she was sitting in the courtroom,
then those hours spent preparing the transcript must be considered for overtime
purposes. H. Rep. 104-219, p.5.
This opinion is based exclusively on the facts and circumstances described in your request and is
given on the basis of your representation, express or implied, that you have
provided a full and fair description of all the facts and circumstances that
would be pertinent to our consideration of the question presented. Existence
of any other factual or historical background not contained in your request
might require a different conclusion than the one expressed herein. You have
represented that this opinion is not sought by a party to a pending private
litigation concerning the issue addressed herein. You have also represented that
this opinion is not sought in connection with an investigation or litigation
between a client or firm and the Wage and Hour Division or the Department of
Labor. This opinion letter is issued as an official ruling of the Wage and
Hour Division for purposes of the Portal-to Portal Act, 29 U.S.C. 259. See 29
C.F.R. 790.17(d), 790.19; Hultgren v.
County of Lancaster, Nebraska, 913 F.2d 498, 507 (8th Cir. 1990).
We trust that the above discussion is responsive to your inquiry.
Sincerely,
Alfred B. Robinson, Jr.
Deputy Administrator
Enclosures: FLSA § 3(e) November 27, 1998 opinion letter; FLSA § 7(o)(6)
*Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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