Human Resources: Classification Focus: Poll Workers

Every election year cycle brings out a small army of election officials who oversee the voting and make sure there are no irregularities. Whether making sure voters are registered, counting "hanging chads" or dealing with voting machine problems, these workers are the unsung soldiers of democracy, without whom there could be no election.

Typically, state and local governments organize the voting in their precincts, using a combination of full-time regular employees and election-day-only employees to perform the job. Both types of workers raise issues under the Fair Labor Standards Act (FLSA). Are workers who clock in only every two years "employees" covered by the FLSA? Do they qualify for any FLSA exemption? And are public employees who volunteer to work at the polls eligible for premium pay if the combination of their regular work hours and their voting assistance exceeds 40 hours in a week?

The FLSA stipulates that "the term ´employee´ does not include any individual who volunteers to perform services for a public agency which is a . . . governmental agency, if:

"(i) the individual receives no compensation [except nominal fees or expenses] . . . and

"(ii) such services are not the same type of services which the individual is employed to perform for such public agency."

U.S. Department of Labor (DOL) regulations that implement the FLSA further clarify what it means to be a public employee volunteer. FLSA regulations explain that in making a determination of whether a public employee may volunteer without violating the FLSA, DOL will take into consideration such criteria as "the facts and circumstances in a particular case, including whether the volunteer service is closely related to the actual duties performed by or responsibilities assigned to the employee."

The DOL has reviewed the status of various election workers at least twice. In a May 7, 1986, Wage and Hour Opinion Letter addressing a group of county-appointed poll workers for each election, DOL said:

[DOL] has taken no position as to whether persons serving as election judges, officials, or poll workers on election days are employees of the public agency which receives their services and, thus, subject to the monetary requirements of FLSA. This policy was adopted subsequent to the 1974 FLSA amendments which extended FLSA coverage to most state and local government employees. This long-standing position will not be changed at this time pending further clarification of the issue or upon guidance by the courts. We regret any misunderstanding [that] may have occurred with respect to this issue.

DOL has left this quasi-nonenforcement policy in place to the present time. Thus, the department has left it unclear whether poll workers on these one-day assignments form an employment relationship with a public agency, and thus must be compensated as required by the FLSA. They could be deemed "volunteers" of a sort, rather then employees, and the FLSA does not apply to bona fide volunteers.

In the one reported court decision dealing with this issue, Evers v. Tart, 48 F.3d 319 (8th Cir. 1995), the 8th U.S. Circuit Court of Appeals examined poll workers who "volunteered" as election clerks for $35 per day, and as election judges for $50 per day. The election judges also received travel reimbursement of 25 cents per mile.

The poll workers were engaged to work no more than eight days per year. They received no vacation or sick leave or other benefits. The 8th Circuit concluded that they were volunteers within the meaning of the FLSA, noting that volunteers in the public sector can be paid only a nominal fee and expenses.

Even if poll workers are employees, some of them might qualify as exempt. The individuals in charge of each election site might qualify as executive or administrative employees, and election judges could be deemed to exercise discretion and independent judgment.

The staff poll workers, however, are unlikely to be exempt, since they are supposed to apply precise election laws and rules, not make subjective determinations. They follow standard procedures, and exercise little or no discretion and judgment. Thus, they are unlikely to be administratively exempt.

Of course, many of these workers only work a single day every two years - Election Day. It may be a long day, but they would be unlikely to be entitled to overtime, since under the FLSA premium pay is not generally due until after more than 40 working hours per week.

It must be noted, however, that there are two criteria relevant to establishing FLSA exemptions: the duties tests and the salary tests. While it is possible for an employee to meet the administrative or the professional (although not the executive) exemptions if he or she is compensated on a fee basis, as poll workers may be, fee payments must amount to at least $155 per week (for the administrative exemption, under the long test) in order for the exemption to apply. This would seldom if ever be the case with a poll worker, unless he or she were otherwise employed with the board of elections.

The FLSA describes the "fee basis" as "payment of an agreed[-upon] sum for a single job regardless of the time required for its completion."

Thus, when it comes to classifying poll workers, the minimum wage is not the only issue. DOL takes no position on the subject and at least one court has found that poll workers are not employees. In some jurisdictions, poll workers may already be earning the minimum wage. If not, there may not be enough money at stake for aggrieved plaintiffs to aggressively and successfully assert FLSA back wage claims.

This article appeared in the Public Employer´s Guide to FLSA Classification by Thompson Publishing Group, http://www.thompson.com/libraries/wagehour/jobs/index.html.