December 2018 - Parks & Recreation - 27

On January 4, 2016, " Westrick
approached Watts and asked him
why he was reporting more than
forty hours per week on his time
sheets. Watts informed Westrick
that he was merely documenting
the hours he worked every week
as originally instructed. According to Watts, Westrick then instructed him to keep track of any
hours in excess of forty 'in his
head' and to use those hours as
'comp time' rather than reporting
it on a time sheet. This confused
Watts, so he asked both Westrick
and his personal lawyer to further
explain the matter.
" After Watts sought clarification,
Westrick sent Watts a memorandum imposing new conditions of
employment on his Parks and Recreation position. The memorandum informed Watts 'that he had
no supervisory authority and, thus,
could no longer work over forty
hours per week without Westrick's
prior approval.' The new conditions also confined Watts to his office between the hours of 8:30 a.m.
and 4:30 p.m., to ensure he worked
only forty hours per week.
" Watts was also classified as an
hourly employee, rather than a salaried one, going forward. According to Westrick, these new conditions were imposed because of
Watts's lackluster performance as
parks and recreation director.
" Not long after the new conditions were imposed, Watts was
terminated from his employment
with Carroll County. Carroll County Fiscal Court officers informed
Watts that his position was no longer needed and that 'several issues'
led to his discharge.
" Following his termination,
Watts filed [a civil action in feder-

al district court] alleging various
violations of the Fair Labor Standards Act. " Watts claimed that
during his time as county parks
and recreation director, " he frequently worked in excess of forty
hours per week but was never paid
overtime compensation. "
In response, defendant Carroll County Fiscal Court (CCFC)
claimed " Watts was not an 'employee' for purposes of the Fair
Labor Standards Act (FLSA) and,
thus, not entitled to overtime compensation. " Even " if Watts was
considered an 'employee' under
the FLSA, " CCFC claimed Watts
" was an exempt employee who
still was not entitled to overtime
compensation. "

FLSA Policy
making Exception
CCFC claimed Watts was not entitled to any overtime compensation
because " his " position as Director
of Parks and Recreation fell within the policymaking exception " of
the FLSA.
As noted by the federal district
court, the policy exception to the
FLSA overtime requirement has
been interpreted in a variety of
ways by the federal courts to include " employees who merely implement policies or offer suggestions about policies " and limited
to " employees who work closely
with and are specifically held accountable to their appointers. "
Further, the court cited the following factors as relevant in determining the applicability of the FLSA
policy exception:
(1) whether the elected official
has plenary powers of appointment and removal or, put another
way, whether the appointee serves

Watts claimed that during his time as
county parks and recreation director,
" he frequently worked in excess of
forty hours per week but was never
paid overtime compensation. "
at the pleasure of the appointing
authority; (2) whether the appointee is personally accountable
to only that elected official; (3)
whether the appointee represents
the elected official in the eyes of
the public - i.e., whether the
appointee can speak on behalf of
the policymaker; (4) whether the
appointee has discretionary rather
than administrative powers; (5)
the level of the position within the
organization's chain of command;
and (6) the actual intimacy of the
working relationship between the
elected official and the appointee.
Applying these factors to Watts's
case, the federal district court
found itself " unable to grant summary judgment in favor of Carroll
County. " According to the federal
district court, the applicability of
the FLSA policy exception should
be " narrowly construed " because it
typically involves questions of fact
better left for a jury to consider at
trial, as opposed to being resolved
on a pretrial motion for summary
judgment. While acknowledging
that " some factors weigh in support of the policymaking exception, " based on the pretrial record,
the federal district court found
a reasonable jury could return a
verdict in favor of Watts's FLSA
claim to overtime as a non-exempt
employee.

Policymaking Authority?
In making its case for the policy ex-

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December 2018 - Parks & Recreation

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