A 'Narrow Exception' Run Amok: How Courts have Misconstrued Employee-Rights Laws’ Exclusion of 'Policymaking' Appointees
University of Washington School of Law
December 1, 2011
Washington Law Review, Vol. 86, p. 875, 2011
The civil rights and workplace protections afforded some government workers vary vastly nationwide because federal circuit courts disagree over how to interpret an exemption common to five landmark employment statutes. Each statute defines “employee” for its purposes to exclude politicians and certain categories of politicians’ appointees — including government employees appointed by elected officials to serve at “the policymaking level.” Neither Congress nor the United States Supreme Court has defined who belongs to the “policymaking-level” class. Consequently, lower federal courts across the country have adopted their own standards to fill the gap, creating a wide circuit split. At stake in this employment law vagary are basic worker rights guaranteed by major federal statutes. The U.S. Supreme Court or Congress should articulate a lucid definition for the exception for appointees on the “policymaking level” that honors Congress’s intent for a narrow exception: the exemption should apply only to positions characterized by both a direct working relationship with the appointer and an explicit duty to make substantive policy.
Number of Pages in PDF File: 29
Keywords: employee, worker, civil rights, rights, discrimination, workplace, labor, policy-making, FLSA, FMLA, Title VII, ADEA, EPA
JEL Classification: K31Accepted Paper Series
Date posted: January 7, 2012
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