FMLA-28 — Office of the Legislative Auditor of the State of Louisiana and definition of "employee"

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

January 31, 1994 FMLA-28

Dear
Name*,

This is in response to your request for an opinion concerning the status of employees of the office of the
Legislative Auditor of the State of Louisiana under the Family and Medical Leave Act of 1993 (FMLA).

Section 101(3) of the FMLA (29 U.S.C. § 2611(3)) defines the term "employee" for FMLA purposes as
having the same meaning given that term in section 3(e) of the Fair Labor Standards Act (FLSA) (29
U.S.C. § 203(e)). Section 3(e)(2)(C)(i) and (ii)(V) of the FLSA exclude from the definition of employee" ...
any individual employed by a State... who is not subject to the civil service laws of the State... and ... who
... is an employee in the legislative branch or legislative body of that State ... and is not employed by the
legislative library of such State ..." The implementing FMLA regulations, 29 CFR Part 825, incorporate
these statutory definitions in § 825.800 (
see definition of "employee" included therein).

You indicate that the Office of the Legislative Auditor of the State of Louisiana is an agency of the
legislative branch of the State, and that its employees are not subject to the civil service regulations of the
State. Accordingly, based on FMLA's statutory provisions, employees of the Office of the Legislative
Auditor would not be considered eligible "employees" within the meaning of the FMLA and would,
therefore, not be subject to the provisions of the FMLA.

Sincerely,

J. DEAN SPEER
Director, Division of Policy and Analysis

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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