Do You Know the Rule? FMLA Personal Staff Exemption

Sarasota, FL (WorkersCompensation.com) -- The FMLA excludes certain governmental employees from protection under its "personal staff" exemption. 

The exemption excludes from FMLA protection an individual who is employed by a state, political subdivision of a state, or interstate governmental agency, if that individual:

‘Personal Staff’ Exemption Test

1. Is not subject to the civil service laws of the state, political subdivision, or agency which employees her; and

2. Is a member of the personal staff of a holder of a public elective office of that state, political subdivision, or agency.

In an illustrative case, an Oregon Senator hired an individual to serve as her chief of staff in December 2018. 

That individual later claimed that the legislature interfered with her FMLA rights and retaliated against her for asserting those rights.

The court in State of Oregon, Legisative Assembly, No. 3:21-cv-780-SI (D. Oregon 01/03/23), first addressed whether the chief of staff was subject to state civil services laws.

In making that deterrmination, the court rejected the chief’s argument that because she was subject to the Oregon Equal Pay Act and other laws that qualify as "civil service laws" under the Fair Labor Standards Act, she was subject to civil service laws.

The FLSA does not define civil service laws “in a way that encompasses a range of regulations,” the court responded. Rather it describes civil service laws as a "personnel system established by law" to protect certain employees. The court held that the chief was not subject to Oregon’s civil service laws.

Next, the court addressed whether the chief was a member of the senator’s personal staff. In doing so, the court stated that it considers six factors, listed below.

Factors for Determining ‘Personal Staff’ Status

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

6. The actual intimacy of the working relationship between the elected official and the person filling the position

The personal staff exemption, the court explained, is meant to exclude from FMLA protection individuals in highly intimate and sensitive positions of responsibility on the staff of the elected official. 

Here, there was no question, the court stated, that the chief of staff held such a position and that she was therefore a member of the senator’s personal staff.

Because the chief was not covered by civil service laws and was a member of an elected official’s personal staff, the FMLA did not protect her, the court held.

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