Attorney General's Opinion

Attorney General Richard Blumenthal

April 19, 1996

Sheriff Gerry Egan

Chairman

County Sheriffs/Sheriffs Advisory Board

84 Wadsworth Street

Hartford, CT 06106

Dear Sheriff Egan:

Your agency forwarded the findings of the U. S. Department of Labor, Employment Standards Administration, Wage and Hour Division audit investigation of Connecticut's employment and compensation of special deputy sheriffs pursuant to the Fair Labor Standards Act (FLSA),1 seeking our advice.

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 Connecticut and resulted in an assessment of $122,149.03 as back wages due and owing to 168 special deputies for the two years immediately preceding the audit.  Your agency confirmed that the hours worked by the special deputy sheriffs, upon which the assessment is made, are correct.  You forwarded the results of the audit and the U.S. Department of Labor's assessment to this office seeking our advice, specifically questioning whether such special deputy sheriffs are within the definition of the term "employee," as that term is defined and applied for the purposes of the FLSA.

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

I.

Covered "Employee" or Exempt "Member of Personal Staff."

The first question is whether special deputy sheriffs in Connecticut are "employees" covered by the FLSA or are in an exempt category, not covered by the Act.

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

(ii) who

(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,

(III) is appointed by such an officeholder to serve on a policymaking level,

(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.  Conn. Gen. Stat. § 6-43 (Rev. to 1995).  Special deputy sheriffs in general, and those involved in this case in particular, are engaged in duties involving prisoner transportation and courthouse security.  It has not been suggested, and there would appear to be no basis to suggest, that special deputy sheriffs are appointed to serve at a policy making level or as legal advisors to the sheriffs.  Special deputy sheriffs are not in the legislative branch.  The remaining category, member of personal staff, deserves additional attention.

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 Connecticut is an elected public official.  Conn. Const. art.  IV, § 25.  Special deputy sheriffs are appointed by the sheriff to serve "when needed for attendance at court ... so long as the sheriff ... deems necessary but not longer than the term of (the sheriff's) office."  Conn. Gen. Stat. § 6-43 (Rev. to 1995).3   Special deputy sheriffs are not in the civil service of the State.

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 Leflore County and McIntosh County, Oklahoma were found to be members of the elected county sheriff's "personal staff" and, thus, excluded from the provisions of the Fair Labor Standards Act.  Nichols v. Hurley, 921 F.2d 1101 (10th Cir. 1990).  The case, however, is factually and legally distinct from the circumstance in Connecticut.  There, seven deputy sheriffs in one county and three in the other brought suit against the elected county sheriff and the county commissioners seeking overtime compensation under the FLSA.  The respective defendants moved for summary judgment, claiming the personal staff exemption, citing Oklahoma statutes and submitting affidavits that showed that the sheriff had plenary power of appointment and removal, that the plaintiff deputies were hired to carry out the duties of the sheriff within a particular geographic portion of the county; that the sheriff was liable for the conduct of the deputies; that the deputies were accountable to and reported directly to the sheriff; and that the deputies were viewed by the public as representing the sheriff.  More recently, a federal district court declined to hold, as a matter of law, that a deputy sheriff was not an employee as defined by the FLSA, and indicated that a determination of employment relationship must be made on an individual basis based on the relationship with the sheriff and the actual duties performed.  Oliver v. Layrisson, Sheriff, Tangpahoa Parish, 1995 WL 250450 (E.D. La., April 27, 1995).

Although the relevant statute in Connecticut also gives the sheriff plenary power of appointment and removal and gives special deputy sheriffs "all the powers of the sheriff as provided by law, except as to service of civil process," Conn.  Gen. Stat. § 6-43, you confirm that the special deputy sheriffs under consideration here are specially appointed to serve specifically as courthouse security officers, prisoner detention custody officers and prisoner transportation officers.4   In the Oklahoma case, uncontroverted evidence was produced that the deputy sheriffs at issue were accountable to and reported directly to the sheriff and, further, were viewed by the public as representing the sheriff.  You confirm that, while the special deputy sheriffs here are, ultimately, accountable to the sheriff, there is a chain of command and the special deputy sheriffs the subject of this inquiry do not report directly to the sheriff or have regular official contact with the sheriff.5

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.

II.

Covered "Employee" or Exempt "Independent Contractor."

The authority for compensation of special deputy sheriffs is provided by Conn.  Gen. Stat. § 6-41 (Rev. to 1995).6   You have informed us that special deputy sheriffs are paid "fees" as "vendors" of services and question whether special deputy sheriffs might be properly viewed as "independent contractors" rather than "employees," and, thus, exempt from the provisions of the Fair Labor Standards Act.  By its assessment, the U.S. Department of Labor has taken the position that special deputy sheriffs are "employees," at least for the purpose of enforcing the provisions of the FLSA.  The concern is whether that determination is correct and whether it has consequences for the State of Connecticut beyond compliance with the Fair Labor Standards Act.

Under Connecticut law, special deputy sheriffs are treated as contractors or vendors of services specifically to avoid the so-called "fringe benefits" associated with the employment of a "regular" state employee.

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, Sec. 3(f).  If the obvious meaning of those words were not enough, the legislative history clearly shows that the "court security officers," a "subclass" of special deputy sheriff, would not be regular state employees. 23 S. Proc., pt. 10, 1980 General Assembly, pp. 3169-70; 23 H.R. Proc., pt. 17, 1980 General Assembly, pp. 4923 and 4926.

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.  Gen. Stat. § 6-43 by providing, in part:

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."  Connecticut compensates special deputy sheriffs employed in prisoner transportation and courthouse security by a per diem fee for attendance at court.  Special deputy sheriffs:

1.  Do not participate in the state retirement plans for state employees, Conn.  Gen. Stat.  <st2:country-region>Ch.</st2:country-region> 66, Conn.  Gen. Stat. § 5-152, et seq.;

2.  Are not subject to the provisions of the State Personnel Act, Conn.  Gen. Stat.  <st2:country-region>Ch.</st2:country-region> 67, Conn.  Gen. Stat. § 5-193, et seq., and are not entitled to, among other things, with respect to compensation:

         

      a.  Annual salary increases, Conn.  Gen. Stat. § 5-210;

      b. Longevity payments, Conn.  Gen. Stat. § 5-213;

      c. Paid sick leave, Conn.  Gen. Stat. § 5-247;

      d. Paid vacation or personal leave, Conn.  Gen. Stat. § 5-250;

      e.  Paid holidays, Conn.  Gen. Stat. § 5-254;

      f. Life insurance, Conn.  Gen. Stat. § 5-257;

      g. Medical/dental insurance, Conn.  Gen. Stat.§ 5-259.

 

3. Do not have the right to bargain collectively with the state, Conn.  Gen. Stat., <st2:country-region>Ch.</st2:country-region> 68, § 5-270.

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 Connecticut, Fairfield County Sheriff's Office and International Union of Police Associations (Special Deputy Sheriffs), Case No. SE-14,213, State Board of Labor Relations.  Similarly, the Superior Court has ruled that 1992 Public Acts No. 92-61 was intended only to clarify Conn.  Gen. Stat. § 5-270(b) and to confirm that special deputy sheriffs were not employees subject to the Act Concerning Collective Bargaining for State Employees, Conn.  Gen. Stat. § 5-270 through 5-280, prior to the enactment of Public Act 92-61.  State of Connecticut v. Connecticut State Board of Labor Relations, No. CV 94-053361, Superior Court, Judicial District of Hartford (May 4, 1995, Munro, J.)7

Although Connecticut pays special deputy sheriffs a per diem "fee,"8 rather than a "wage" or a "salary," that circumstance is only one factor in determining whether the relationship is that of independent contractors or that of employer-employee for the purpose of determining the obligations of the parties pursuant to the Fair Labor Standards Act.

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.  IRS private letter ruling, CCH LTR 9028036, April 9, 1990 to Sheriff George R. Zeeb, County Sheriff's Agency.10

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>U.S.</st2:country-region> 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); Bartels v. Birmingham, 332 <st2:country-region>U.S.</st2:country-region> 126, 67 S.Ct. 1547, 91 L.Ed. 1947 (1947)(Social Security Act); Goldberg v. Whitaker House Cooperative, Inc., 366 <st2:country-region>U.S.</st2:country-region> 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961)(FLSA); Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748 (9th Cir. 1979)(FLSA); Brock v. Lauritzen, 624 F.Supp. 966 (E.D. Wisc. 1985)(FLSA).  The presence or absence of any individual factor is not necessarily dispositive.  The determination depends "upon the circumstances of the whole activity."  Rutherford Food Corp. v. McComb, supra;

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.

  

Conn. Gen. Stat. §§ 6-32b, 6-32d.

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 Connecticut.

(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".

Pursuant to Conn.  Gen. Stat. § 6-32b,

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 Connecticut, has complete control over the work performed; planning, establishing, directing and controlling all aspects of the work of moving prisoners to and from courthouses, guarding prisoners at courthouses and providing courthouse security.

(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 (E.D. Wisc. 1985), 649 F.Supp. 16 (E.D. Wisc. 1986), aff'd, 835 F.2d 1529 (7th Cir., 1988), cert. denied, 488 U.S. 898, 109 S.Ct. 243, 102 L.Ed.2d 232 (1988), reh. denied, 488 U.S. 987, 109 S.Ct. 544, 102 L.Ed.2d 574 (1988).  The only "risk" of loss by a special deputy sheriff is that he or she will not be called to "attend court" on a given day when he or she would hope or expect to work.  That is not the type of investment-related risk subject to deterioration or amelioration by application of the individual's managerial or entrepreneurial skills.  Id. The economic reality of the circumstance is that special deputy sheriffs are not operating independent businesses but rather are performing personal labor.  Mitchell v. John R. Crowley & Bro., Inc., 292 F.2d 105 (5th Cir. 1961)(night watchman).

(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.  Conn. Gen. Stat. § 6-43.  As a practical matter, given the recurring need for prisoner transportation and detention and courthouse security, and the fact that only special deputies perform such functions, those appointed special deputy sheriffs, trained and experienced in the work, are routinely scheduled "to attend court" on a regular basis.

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 Connecticut are independent contractors not subject to the provisions of the FLSA.

III

Conclusion

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.

IV.

Prospective Compliance

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.  Gen. Stat.  Chapter 558, § 31-58 through § 31-76k, and your own authorizing legislation.  If special deputy sheriffs' hours of employment exceed the regular hour maximum provided by the FLSA, you must comply with the overtime compensation requirements of that Act, subject to the exemptions for law enforcement activity, provided by 29 U.S.C. § 207(k), and the possible availability of compensatory time off in lieu of overtime pay for public employees, provided by 28 U.S.C. § 207(o), unless the state overtime laws preempt the FLSA.

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>U.S.</st2:country-region> 180, 192-93, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); Machinists v. Wisconsin Employment Relations Commission, 427 <st2:country-region>U.S.</st2:country-region> 132, 138-43, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976); Pettis Moving Co., Inc. v. Roberts, 784 F.2d 439, 441 (2d Cir. 1986); French v. Amalgamated Local Union 376, 203 Conn. 624, 526 A.2d 861 (1987).  However, if a state's labor laws are "more stringent" than the federal government's, then the state's laws would apply. 29 USCS § 218(a); Smith v. United Parcel Service, Inc., 890 F.Supp. 523 (S.D. W.Va. 1995); LaGrimas v. Gossel, 24 Fed.  R. Serv. 3d 1373, 1 BNA WH Cas 2d 385, 1993 WL 18951 (D. Md. 1993).  Put another way, "(29 U.S.C. § 218) allows state laws to apply to that part of interstate commerce covered by the FLSA only where the state hour and wage provisions are more beneficial to the laborer than those in the federal act."  Davenport Taxi, Inc. v.. State Labor Commissioner, 164 Conn. 233, 319 A.2d 386 (1973).  It remains for the Connecticut Commissioner of Labor to determine whether state overtime law provides greater benefits than the federal FLSA.  Such determinations are required in view of the potential conflict between Conn.  Gen. Stat. § 31-76c, the general overtime provision, and Conn.  Gen. Stat. § 6-41, providing for per diem compensation for special deputy sheriffs, and, if § 31-76c applies, whether that statute and others which make up Connecticut's fair labor laws provide "more stringent" regulation of the employer or are "more beneficial" for the employee than comparable provisions of the FLSA.

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 Conn.  Gen. Stat. § 6-41.  The per diem compensation scheme provided by Conn.  Gen. Stat. § 6-41, the requirement to calculate overtime compensation on an hourly basis, and the practical difficulties in restricting the hours of employment of special deputy sheriffs raise financial and policy issues regarding the numbers of special deputy sheriffs and the scheduling flexibility needed to conduct the operations of the agency effectively.  These are all issues to discuss and consult with budget analysts in the Office of Policy and Management, payroll administrators in the Office of the Comptroller, personnel administrators in the Department of Administrative Services, and labor regulation personnel in both the Connecticut Department of Labor and the U.S. Department of Labor, in order to determine the requirements of a compliant wage and hour employment and compensation system for special deputy sheriffs. If additional legal questions arise in the planning and implementation of such a system, please call.

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