Attorney General's Opinion
Attorney General Richard Blumenthal
April 19, 1996
County Sheriffs/Sheriffs Advisory Board
Your agency forwarded the findings of the U. S. Department of Labor, Employment Standards Administration, Wage and Hour Division audit investigation of
The U. S. Department of Labor has determined that those special deputy sheriffs who serve in positions of courthouse and prisoner security and prisoner transportation are covered, nonexempt employees pursuant to the provisions of the FLSA for whom the State of Connecticut, as the employer, must (1) record actual hours worked, (2) pay not less than the applicable minimum wage and (3) pay not less than the half time portion of overtime based on the regular pay for all hours worked over forty hours in a workweek.
The audit covered all special deputy sheriffs in the County Sheriffs Agency in
Our answer is in the affirmative. For the reasons that follow, we advise you to arrange for retroactive payment of the additional compensation and, prospectively, to modify, as appropriate, the compensation system for special deputy sheriffs such that it will comply with the requirements of the federal Fair Labor Standards Act.2
Covered "Employee" or Exempt "Member of Personal Staff."
The first question is whether special deputy sheriffs in
The relevant provision of the Act defining the term "employee" provides as follows:
§ 203. Definitions
As used in this chapter
(e)(2) In the case of an individual employed by a public agency, (the term "employee") means
(C) any individual employed by a State, political subdivision of a State, or an interstate governmental agency, other than such individual
(i) who is not subject to the civil service laws of the State, political subdivision, or agency which employs him; and
(I) holds a public elective office of that State, political subdivision, or agency,
(II) is selected by the holder of such an office to be a member of his personal staff,
(IV) is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or
(V) is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.
29 U.S.C. § 203(e)(2)(C).
We may immediately eliminate several categories. Special deputy sheriffs are appointed, not elected, officials.
According to 29 U.S.C. § 203 (e)(2)(C), a special deputy sheriff would not be an "employee" for the purpose of the FLSA if he or she is not in the civil service of the state and is selected by the sheriff to be a member of his or her personal staff.
The sheriff of each of the several counties in
The Secretary of Labor has adopted regulations entitled "Application of the Fair Labor Standards Act to Employees of State and Local Governments." 29 C.F.R. Part 553. The nature of the exclusion for "personal staff" is explained as follows:
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.
29 C.F.R. § 553.11(b)(January 12, 1987).
In the only reported federal appellate court decision arguably on point, undersheriffs and deputy sheriffs in
Although the relevant statute in
Further, although special deputy sheriffs wear a uniform which identifies them to the public as being associated with the sheriff's office, and may rightfully take pride in their work under the leadership of the sheriff, it has not been suggested that there is any evidence from which to conclude that the relationship between the High Sheriff and each special deputy sheriff is such that the special deputy sheriffs are viewed by the public in Connecticut as representing the sheriff to the point where it could be said that special deputy sheriffs are members of the sheriff's personal staff as that term is explained in 29 C.F.R. § 553.11(b) (January 12, 1987).
In our view, based on the facts you have provided, there is no basis in Connecticut for contending that special deputy sheriffs are excluded from coverage by the FLSA by reason of being "members of the personal staff" of the sheriff.
Covered "Employee" or Exempt "Independent Contractor."
The authority for compensation of special deputy sheriffs is provided by
When the General Assembly initially established the prisoner transportation and courthouse security system, it also established the position of "court security officer," and specifically provided that "[c]ourt security officers shall not be covered by the provisions of chapters 66 [State Employees Retirement Act], 67 [State Personnel Act] and) 68 [Collective Bargaining for State Employees]. 1980 Public Acts No. 80-394,
In 1984, the position of "court security officer" was eliminated, with the duties transferred to the position of "special deputy sheriff." 1984 Public Acts No. 84-397. In so doing, one representative said:
I've always thought that they should be -- I'd rather make them (special deputy sheriffs) full time state employees and get them benefits but quite frankly this is a much cheaper way for the state to do business.
27 H.R. Proc., pt. 18, 1984 General Assembly, p. 6336.
In 1988, in debating a raise for special deputy sheriffs:
What's out of line is what we're paying them today. Today they're getting $60 a day, no fringes, no pensions, no health benefits, no overtime, nothing $60 a day.
Because at $60 a day, that's roughly $15,000 a year, without pensions, without health benefits and for those particularly who do the transportation and work overtime, no overtime.
Just for the heck of it, ..., we asked what would happen if these were really State employees ... Only $7 million more. I think we're getting a bargain, folks.
31 H.R. Proc., pt. 22, 1988 General Assembly, pp. 7838-39.
Because debate continued regarding the status of special deputy sheriffs, the General Assembly passed and the Governor signed into law 1992 Public Acts No. 92-61, amending Conn.
Special Deputy Sheriffs shall not be subject to the provisions of Chapters 66 to 68, inclusive.
Chapter 66 refers to the State Employees Retirement Act. Chapter 67 is the State Personnel Act and chapter 68 is entitled, "Collective Bargaining for State Employees."
1. Do not participate in the state retirement plans for state employees,
2. Are not subject to the provisions of the State Personnel Act,
a. Annual salary increases, Conn.
b. Longevity payments, Conn.
c. Paid sick leave,
d. Paid vacation or personal leave, Conn.
e. Paid holidays, Conn.
g. Medical/dental insurance,
3. Do not have the right to bargain collectively with the state,
The State Board of Labor Relations dismissed a petition for representation, noting that 1992 Public Acts No. 92-61 provided that special deputy sheriffs were excluded from the provisions of Chapters 66 to 68, inclusive. In re: State of
While special deputy sheriffs are not state employees for the purposes of Chapters 66 through 68 of the Connecticut General Statutes, it is clear that they are employees and not independent contractors for the purpose of the application of the Fair Labor Standards Act. Both federal and state law follow common law principles in determining general employment relationships.9
The issue of whether deputy and special deputy sheriffs are employees or independent contractors for the purpose of Federal Employment Taxes and Income Tax Withholding was examined in substantial detail by the U. S. Department of the Treasury, Internal Revenue Service. In a ruling specifically limited to deputy and special deputy sheriffs in Connecticut employed "transporting prisoners, providing courtroom security and jury sequestration," it was determined, using general common law principles, that such deputies and special deputies are employees for the purpose of administering the Internal Revenue Code and, specifically, that the State of Connecticut, as the employer, is required to withhold applicable Federal Income Tax from the "wages" paid to such deputies and special deputies.
As you know, that particular matter has not been pursued further and you currently comply with its directive. You have not pointed to, nor have we discerned, any substantial basis upon which to distinguish the result there from the circumstance presently under consideration.
The common law concepts of "employee" and "independent contractor" are not the exclusive determinants of the FLSA's coverage. Usery v. Pilgrim Equipment Co., Inc., 527 F.2d 1308 (5th Cir.), cert. denied, 429 U.S. 826, 97 S.Ct. 82, 50 L.Ed.2d 89 (1976).
The federal courts have generally applied a so-called "economic reality" test in determining whether a worker is an employee or an independent contractor for the purposes of particular social legislation, considering:
(1) the extent to which the services performed are an integral part of the employer's business;
(2) the extent of the worker's investment in equipment and facilities;
(3) the nature and degree of control exercised by the "employer";
(4) the "employee's" opportunity for profit and loss;
(5) the amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise; and
(6) the permanency and duration of the relationship between the worker and the "employer."
Rutherford Food Corp. v. McComb, 331 <st2:country-region>
In analyzing the work of special deputy sheriffs using the principal factors of the "economic reality" test, we find the following:
(1) The extent to which the services performed are an integral part of the employer's business.
It is the responsibility of high sheriff, within his or her respective county, and in conjunction with the Sheriff's Advisory Board, to:
a. transport prisoners between courthouses and places of confinement;
b. maintain custody of prisoners at courthouses; and
c. maintain courthouse security.
Special deputy sheriffs are appointed "for attendance at court," Conn. Gen. Stat. § 6-43, and are employed exclusively in transporting prisoners, operating courthouse prisoner detention facilities, providing courthouse security and acting as courtroom bailiffs. The economic reality is that special deputy sheriffs perform duties that are the essential business of the employer, the State of
(2) The extent of the worker's investment in equipment and facilities.
You inform us that virtually all the necessary equipment: transportation vehicles, uniforms, detention and security devices and other implements necessary to perform the work are supplied by the state. The worker, the special deputy sheriff, supplies virtually none of the needed equipment.
(3) The nature and degree of control exercised by the "employer".
The (sheriff's) advisory board: . . . (2) shall establish and administer a training program for ... special deputy sheriffs; (3) shall establish operating procedures for the prisoner transportation and courthouse security system and direct its activities,....
The reality is that the employer, the State of
(4) The "employee's" opportunity for profit or loss.
Special deputy sheriffs are compensated for "attending court." While at court, they are assigned duties to perform in accordance with the needs of the employer. They may, by exhibiting good work, initiative, ambition and other positive personal attributes, be promoted to lead positions, in higher classifications with additional pay. However, the special deputy sheriffs have no capital investment at risk and no opportunity, on a daily basis, of earning more or less, depending on their level of efficiency. Indeed, the concept of profit or loss is irrelevant to the work of special deputy sheriffs. Profit is the gain realized from a business over and above its expenditures. Brock v. Lauritzen, 624 F.Supp. 966 (
(5) The amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise.
It may be true that initiative, skill, judgment and foresight are desired attributes for special deputy sheriffs. Such attributes help ensure the safe and proper detention and transportation of prisoners, prevent escapes and facilitate the proper functioning of a courthouse. However, the economic reality is that special deputy sheriffs are not operating independent businesses and exercise no business judgment.
(6) The permanency and duration of the relationship between the worker and the "employer".
Appointments of special deputy sheriffs are only for so long as they are "needed for attendance at court" and, in any event, do not extend beyond the term of the high sheriff appointing them.
For the purpose of FLSA analysis, the economic reality of the circumstance is an employment relationship which is not project-based, as with an independent contractor, but is recurrent, even daily, as with employment.
In our view, there is no argument to be made to the U.S. Department of Labor that special deputy sheriffs in
In conclusion, we can find no basis upon which to dispute the determination by the U. S. Department of Labor, Employment Standards Administration, Wage and Hour Division, that those special deputy sheriffs whose tasks are specifically restricted to courthouse security, prisoner detention and prisoner transportation are covered by the provisions of the Fair Labor Standards Act. Without in any way suggesting that special deputy sheriffs are "employees" for any other purpose, and without necessarily conceding to the remarks made in the findings of the U. S. Department of Labor, Employment Standards Administration, Wage and Hour Division, we advise you to arrange for payment of the assessed back wages.
In order to avoid future assessments, prospectively, you must provide for administration of a wage and hour accounting and compensation system for special deputy sheriffs assigned to court and prisoner security and prisoner transportation that will comply with the provisions of federal law, the U.S. Fair Labor Standards Act, 29 U.S.C. §201, et seq., state wage and hour laws, Conn.
Compliance with state overtime laws may be required if such state laws provide greater benefits to employees that the federal Act and, thus, preempt the federal provisions. It is not for us to determine the scope of federal or state preemption, but is, in the first instance, the responsibility of the Connecticut Commissioner of Labor. Individual states are generally required to enforce the rights of employees provided by federal labor statutes by virtue of the doctrine of federal preemption. Sears, Roebuck & Co. v. Carpenters, 436 <st2:country-region>
The planning and implementation of a compliant wage and hour employment and compensation system for special deputy sheriffs exceeds the scope of this opinion. In general, if the regular hours of employment of special deputy sheriffs do not exceed the maximums provided by federal or state law, you would not be required to comply with the overtime requirements of those laws. In such circumstances, compensation of special deputy sheriffs would follow strictly in accord with the provisions of
Very truly yours,
Assistant Attorney General
1 29 U.S.C. § 201, et seq
2 This advice covers only
Sec. 6-43. Special deputies. In case of riot or civil commotion or reasonable apprehension thereof, or when he deems it necessary for the prevention or investigation of crime, or when needed for attendance at court, the sheriff of any county may appoint special deputy sheriffs in such numbers as he deems necessary. Special deputy sheriffs shall be sworn to the faithful performance of their duties and, having been so sworn, shall have all the powers of the sheriff as provided by law, except as to service of civil process; and such special deputies shall continue to hold their office as long as the sheriff appointing them deems necessary but not longer than the term of office of the sheriff appointing them, unless sooner removed for just cause after due notice and hearing. Special deputy sheriffs shall not be subject to the provisions of chapters 66 to 68, inclusive.
Chapter 66 of the General States is the State Employees Retirement Act. Chapter 67 is the State Personnel Act. Chapter 68 is entitled Collective Bargaining for State Employees.
4 This opinion covers only special deputy sheriffs appointed to attend court and perform duties relating to court house security, prisoner security and detention in court houses and prisoner transportation. It does not cover (high) sheriffs, chief deputy sheriffs, or deputy sheriffs, all of whom may serve process.
5 You have indicated that the "chain of command" for special deputy sheriffs may consist of special deputy sheriffs in the position of "supervisory court officer," with additional compensation, Conn.
Sec. 6-41. Compensation of constables for court attendance. Compensation of deputy sheriffs and special deputy sheriffs for court attendance or services at overnight jail facility. (a) Each deputy and each special deputy sheriff, when attending the supreme court, appellate court or superior court shall receive the following fees for each such day of attendance:
(4) On and after
(b) No deputy or special deputy sheriff shall receive more than one day's fee for his attendance at court in any one day ...
(c) In addition to the fees established by subsection (a) of this section, any deputy sheriff or special deputy sheriff who provides services on a second or third shift at an overnight jail facility shall receive a shift fee of five dollars.
7 In Lajoie, et al. v. Connecticut State Board of Labor Relations, et al., Case No. 2:92CV01035 JAC, United States District Court, District of Connecticut, the plaintiffs, among other things, sought to have special deputy sheriffs declared to be "state employees" and challenged the constitutionality of 1992 Public Acts No. 92-61. The District Court abstained from ruling on the plaintiffs' claims pending presentation of the issue to the state courts.
8 We have previously advised that, since special deputy sheriffs are compensated solely on a fee basis and are not members of the state's retirement system, there is no requirement for state contribution or withholding pursuant to the provisions of the Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, § 11332 (104 Stat. 1388), 6A U.S.C.A. 1183 (West Supp. Feb. 1991), amending the Federal Insurance Contributions Act (FICA), 42 U.S.C. § 410 (a)(7) and the Federal Old Age, Survivors, Disability and Hospital Insurance (OASDI) coverage, 26 U.S.C. § 3121(b). Informal Advice dated
10 We refer to the ruling, not necessarily as legal precedent, Section 6110(j)(3) of the Internal Revenue Code, but because it represents, for federal tax withholding purposes, a recent and relevant comprehensive discussion on the issue of independent contractor versus employee status of special deputy sheriffs.