While rules governing compensation of public sector employees can differ from the private sector (and be more expansive), the general overtime provisions of the Fair Labor Standards Act applies to public sector employees since the Supreme Court’s seminal decision in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (U.S. 1985).  Excluded, however, from the FLSA’s overtime pay requirements, presumably in recognition of their long and irregular hours and the nature of the services provided, are the members of an elected official’s personal staff. 29 U.S.C. § 203(e)(2)(C). In order to qualify for this exclusion under the implementing regulations the individual “must be appointed by, and serve solely at the pleasure or discretion of, the elected official.” 29 C.F.R. § 553.11(c). This requirement was analyzed recently, and application rejected, by a Missouri federal court.  Southard v. City of Oronogo, 2013 U.S. Dist. LEXIS 11395 (W.D. Mo. Jan. 29, 2013).

The Court’s cursory analysis of this requirement in Southard highlights the stringent nature of this test. The Court held the exemption was inapplicable because the cessation of Plaintiff’s employment as City Clerk for the City Defendant occurred “when the Board of Aldermen did not approve the Mayor's reappointment of Plaintiff as City Clerk.”  In the Court’s view, the Board’s authority in determining whether Plaintiff continued as City Clerk demonstrated that he “did not ‘serve solely at the pleasure or discretion of’ the mayor and, thus, did not meet the statutory term ‘member of personal staff.’”

Public sector employers such as municipalities can be targets of FLSA litigation.  It is vital that such entities consult with counsel to ensure compliance with the FLSA as well as any additional governing statutes (including civil service laws and prevailing wage obligations), as well as any collective bargaining agreement.