(a) An "employer" under FMLA includes any "public agency," as
defined in section 3(x) of the Fair Labor Standards Act, 29 U.S.C.
203(x). Section 3(x) of the FLSA defines "public agency" as the
government of the United States; the government of a State or political
subdivision of a State; or an agency of the United States, a State, or
a political subdivision of a State, or any interstate governmental
agency. "State" is further defined in Section 3(c) of the FLSA to
include any State of the United States, the District of Columbia, or
any Territory or possession of the United States.
(b) The determination of whether an entity is a "public" agency,
as distinguished from a private employer, is determined by whether the
agency has taxing authority, or whether the chief administrative
officer or board, etc., is elected by the voters-at-large or their
appointment is subject to approval by an elected official.
(c)(1) A State or a political subdivision of a State constitutes a
single public agency and, therefore, a single employer for purposes of
determining employee eligibility. For example, a State is a single
employer; a county is a single employer; a city or town is a single
employer. Whether two agencies of the same State or local government
constitute the same public agency can only be determined on a case-by-
case basis. One factor that would support a conclusion that two
agencies are separate is whether they are treated separately for
statistical purposes in the Census of Governments issued by the Bureau
of the Census, U.S. Department of Commerce.
(2) The Census Bureau takes a census of governments at 5-year
intervals. Volume I, Government Organization, contains the official
counts of the number of State and local governments. It includes
tabulations of governments by State, type of government, size, and
county location. Also produced is a universe list of governmental
units, classified according to type of government. Copies of Volume I,
Government Organization, and subsequent volumes are available from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, U.S. Department of Commerce District Offices, or
can be found in Regional and selective depository libraries, or online
at http://www.census.gov/govs/www/index.html. For a list of all
depository libraries, write to the Government Printing Office, 710 N.
Capitol St., NW., Washington, DC 20402.
(d) All public agencies are covered by the FMLA regardless of the
number of employees; they are not subject to the coverage threshold of
50 employees carried on the payroll each day for 20 or more weeks in a
year. However, employees of public agencies must meet all of the
requirements of eligibility, including the requirement that the
employer (e.g., State) employ 50 employees at the worksite or within 75
miles.
[73 FR 68077, Nov. 17, 2008]
