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A 'Narrow Exception' Run Amok: How Courts have Misconstrued Employee-Rights Laws’ Exclusion of 'Policymaking' Appointees

29 Pages Posted: 7 Jan 2012  

Angela Galloway

University of Washington - School of Law

Date Written: December 1, 2011

Abstract

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.

Keywords: employee, worker, civil rights, rights, discrimination, workplace, labor, policy-making, FLSA, FMLA, Title VII, ADEA, EPA

JEL Classification: K31

Suggested Citation

Galloway, Angela, A 'Narrow Exception' Run Amok: How Courts have Misconstrued Employee-Rights Laws’ Exclusion of 'Policymaking' Appointees (December 1, 2011). Washington Law Review, Vol. 86, p. 875, 2011. Available at SSRN: https://ssrn.com/abstract=1980438

Angela Galloway (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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