The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6917

September 26, 1996

COUNTIES:

Application of the Family and Medical Leave Act of 1993 to Branch County employees

An employee of a county community mental health agency, a county public health department, a county medical care facility or a county 9-1-1 emergency telephone district in Branch County who meets the service requirements is covered under the Family and Medical Leave Act of 1993 unless the county employs less than 50 employees at or within 75 miles of that employee's worksite.

John L. Livesay

Branch County Prosecuting Attorney

31 Division Street

Coldwater, MI 49036

You have asked if employees of the county community mental health agency, the county public health department, the county medical care facility, the county 9-1-1 emergency telephone district, and employees of the circuit court, probate court and district court in Branch County are covered by the Family and Medical Leave Act of 1993, 29 USC 2601 et seq.

Congress enacted the Family and Medical Leave Act of 1993 "to promote national interests in preserving family integrity" and to permit employees to take "reasonable leave" for medical, family health and other family reasons under section 2601(b)(1) and (2). Section 2611(2)(A)(i) and (ii) defines the term "eligible employee" to mean a person who has been employed for at least 12 months for at least 1,250 hours of service in the past 12 month period by the employer from whom leave is requested. But, under section 2611(2)(B)(ii), the term "eligible employee" does not include "any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50."

Further, 29 CFR 825.108 provides, with regard to governmental employers, as follows:

(a) An "employer" under the FMLA includes any "public agency," as defined in section 3(x) of the Fair Labor Standards Act, 29 U.S.C. 203(x). Section 3(x) of the FLSA defines "public agency" as the government of the United States; the government of a State or political subdivision of a State; or an agency of the United States, a State, or a political subdivision of a State, or any interstate governmental agency. "State" is further defined in Section 3(c) of the FLSA to include any State of the United States, the District of Columbia, or any Territory or possession of the United States.

 

 

(c)(1) A State or a political subdivision of a State constitutes a single public agency and, therefore, a single employer for purposes of determining employee eligibility. For example, a State is a single employer; a county is a single employer; a city or town is a single employer ....

 

 

(d) All public agencies are covered by FMLA regardless of the number of employees; they are not subject to the coverage threshold of 50 employees carried on the payroll each day for 20 or more weeks in a year. However, employees of public agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g., State) employ 50 employees at the worksite or within 75-miles.

Thus, under the applicable federal regulations all public agencies are covered as employers by the Family and Medical Leave Act of 1993. However, the employees of a public agency are not covered unless the employer employs 50 or more employees at or within 75 miles of their worksite.

First, we examine the status of employees of the county community mental health agency under the Family and Medical Leave Act of 1993. A county may organize and operate a county community mental health agency authorized by the Legislature in Chapter 2 of 1974 PA 258, s 200 et seq, MCL 330.1200a et seq; MSA 14.800(200a) et seq, as last amended by 1995 PA 290. Under section 204(1) a county community mental health agency is "an official county agency." Its employees are employees of the county. OAG, 1977-1978, No 5269, p 362, 363 (February 23, 1978). The employing county is a public agency under the Family and Medical Leave Act of 1993.

Next, we address the status of employees of the county public health department under the Family and Medical Leave Act of 1993. Under section 2413 of Part 24 of 1978 PA 368, MCL 333.2401 et seq; MSA 14.15(2401) et seq, a county "shall provide for a county health department" unless it joins in a district health department. The governing body of a single county public health department is the county board of commissioners under section 2406(a) of Part 24 of 1978 PA 368. See, OAG, 1973-1974, No 4825, p 174 (August 14, 1974), which discusses the control of the board of county commissioners over the county public health department. A county public health department is a county agency. The employing county is a public agency under the Family and Medical Leave Act of 1993.

Turning to the status of employees of a county medical care facility under the Family and Medical Leave Act of 1993, a county may establish and operate, with the approval of the county board of commissioners, a county medical care facility. Monticello House, Inc v Calhoun County, 20 Mich App 169, 174-175; 173 NW2d 759 (1969). The medical care facility is a county agency and its employees are county employees. The employing county is a public agency under the Family and Medical Leave Act of 1993.

Employees of a county established 9-1-1 emergency telephone district are the remaining group of employees to be considered. A county board of commissioners may establish an emergency telephone district within the county for the implementation of 9-1-1 emergency telephone service, MCL 484.1301 et seq; MSA 22.1467(301) et seq, "to respond effectively to police emergencies, fires and particularly [to] medical emergencies" by providing a telephone number easy to remember and for dispatch of emergency services from a central answering point. Senate Legislative Analysis, SB 303, March 20, 1986. The county may enter into agreements with public safety agencies to serve as primary or secondary public safety answering points. MCL 484.1318; MSA 22.1467(318). However, if the county itself has hired employees to implement the final 9-1-1 service plan, the employing county would be a public agency under the Family and Medical Leave Act of 1993, supra.

It is my opinion, therefore, that an employee of a county community mental health agency, a county public health department, a county medical care facility or a county 9-1-1 emergency telephone district in Branch County who meets the service requirements is covered under the Family and Medical Leave Act of 1993 unless the county employs less than 50 employees at or within 75 miles of that employee's worksite.

Next, we turn to an analysis of whether the circuit court, probate court and district court employees are covered by the Family and Medical Leave Act of 1993. To answer that question, we must first determine which governmental entities are the public agency employers of these court personnel so that we may ascertain whether the public agency employers employ enough people for their employees to be eligible under section 2611(2)(B)(ii) of the Family and Medical Leave Act of 1993.

29 CFR 825.108(c)(1), which implements the Family and Medical Leave Act of 1993, provides:

Where there is any question about whether a public entity is a public agency, as distinguished from a part of another public agency, the U.S. Bureau of the Census' "Census of Governments" will be determinative, except for new entities formed since the most recent publication of the "Census."

Under Michigan case law, before recent statutory amendments, there was no question but that court personnel were employees of the courts. In Judges of the 74th Judicial Dist v Bay County, 385 Mich 710, 723; 190 NW2d 219 (1971), the Court squarely held:

Employees of the district court are employees of the judicial district, an administrative unit of the state's one district court, which in turn is a subdivision of Michigan's one court of justice. They are not employees of the county, city or other district control unit, even though they are paid by the district control unit. [ Emphasis added.]

In Livingston County v Livingston Circuit Judge, 393 Mich 265, 293; 225 NW2d 352 (1975), only Levin, J., joined by Thomas G. Kavanagh, C. J., Dissenting, would have held the county board of commissioners to be the employer of circuit court and probate court employees. The majority concluded that the respective courts were the employers to collectively bargain with their employees subject to review under Supreme Court Adm. Order No. 1971-6.

More recently, in Cameron v Monroe County Probate Court, 214 Mich App 681, 685; 543 NW2d 71 (1995), the court held that probate court personnel were employees of the county probate court, not the county, as follows:

The decision in Judges of the 74th Judicial Dist, supra, leads to the conclusion that Cindy Cameron was an employee of the Monroe County Probate Court, and not Monroe County. This conclusion is supported by OAG, 1979-1980, No 5553, p 372 (September 5, 1979), which held that the probate court, not the county, is the "public employer" of probate court employees for purposes of collective bargaining. [ Emphasis added.]

However, in 1996 PA 374, the Legislature amended the Revised Judicature Act of 1961, 1961 PA 236, MCL 600.101 et seq; MSA 27A.101 et seq, with regard to, among other things, the question of determining which public entities are the employers for various court personnel. In section 591(2)-(5) of the Revised Judicature Act of 1961, as amended, the Legislature has provided:

(2) In a single-county circuit, the county is the employer of the county-paid employees of the circuit court in that county. In a multicounty circuit, the employer of the county-paid employees of the circuit court shall be as follows:

(a) As determined pursuant to a contract entered into by the counties within the circuit under Act No. 8 of the Public Acts of the Extra Session of 1967, being sections 124.531 to 124.536 of the Michigan Compiled Laws.

(b) If the counties within the circuit do not enter into an agreement described in subdivision (a), each county is the employer of the county-paid employees who serve in that county or who are designated by agreement of the counties within the circuit as being employed by that county.

(3) The employer of county-paid employees of the circuit court designated under subsection (2), in concurrence with the chief judge of the circuit court, has the following authority:

(a) To establish personnel policies and procedures, including, but not limited to, policies and procedures relating to compensation, fringe benefits, pensions, holidays, leave, work schedules, discipline, grievances, personnel records, probation, and hiring and termination practices.

(b) To make and enter into collective bargaining agreements with representatives of the county-paid employees of the circuit court in that county or in the counties covered by a contract entered into under subsection (2)(a).

(4) If the employer of the county-paid employees of the circuit court and the chief judge of the circuit court are not able to concur on the exercise of their authority as to any matter described in subsection (3)(a), that authority shall be exercised by either the employer or the chief judge as follows:

(a) The employer has the authority to establish policies and procedures relating to compensation, fringe benefits, pensions, holidays, and leave.

(b) The chief judge has authority to establish policies and procedures relating to work schedules, discipline, grievances, personnel records, probation, hiring and termination practices, and other personnel matters not included in subdivision (a).

(5) The employer of the county-paid employees of the circuit court designated under subsection (2) and the chief judge of the circuit court each may appoint an agent for collective bargaining conducted under subsections (3) and (4). [ Emphasis added.]

In sections 837 and 8271 of the Revised Judicature Act of 1961, the Legislature has enacted similar provisions with regard to probate court and district court personnel. Under section 837(2)-(5) the county is the employer of county-paid employees of the probate court subject to the provisions on either concurrence by or the exercise of divided powers by the chief judge of the probate court. Under section 8271(2)-(7) the district funding unit is the employer for the locally-funded employees of the district court subject to the provisions on either concurrence by or the exercise of divided powers by the chief judge of the district court.

These statutory provisions purport to create a joint-employer arrangement regarding circuit court, probate court and district court employees. In Berrien County Probate Judges v AFSCME, 217 Mich App 205, 210-211; 550 NW2d 859 (1996), the Court of Appeals held that the application of the joint-employer doctrine to a county and a probate court with regard to probate court employees was a violation of separation of powers under Const 1963, art 3, s 2. In that case, an application for leave to appeal has been filed in the Michigan Supreme Court, Docket No. 106729. Thus, the question of which governmental entities in Michigan are the public agency employers of these court personnel is in pending litigation.

Consistent with my long-standing practice, I must decline to respond to that part of your question concerning the employment status of circuit court, probate court and district court personnel in Branch County under the Family and Medical Leave Act of 1993 because the subject matter of the request is involved in pending litigation. Once the litigation has been concluded, should there be a further need for an opinion, you are welcome to renew your request.

Frank J. Kelley

Attorney General