                                                                               May 9, 1977


77-25        MEMORANDUM OPINION FOR THE
             GENERAL COUNSEL, DEPARTMENT OF
             DEFENSE

             Status of Baggers as Federal Employees—Fair Labor
             Standards Act


   This is in response to the request of the General Counsel concerning
a disagreement between the Department of Defense (DOD) and the
Civil Service Commission (CSC) regarding the interpretation of the
Fair Labor Standards A ct of 1938 (FLSA), as amended in 1974, 29
U.S.C. §§ 201 et seq. The CSC has determined that individuals who,
w ith the permission of the commissary, bag and transport DOD com­
missary patrons’ purchases in return for tips (“baggers”) are employees
within the scope of the FLSA . It is D O D ’s view that this interpretation
“conflicts with statutory and traditional concepts of Federal employ­
ment.” F o r the reasons that follow, we conclude that such concepts are
not controlling under the FLSA and that CSC’s application of the
“economic realities” test1 to determine questions of employment, even
in the Federal sector, is proper.

                                               I
   D O D ’s main objection to CSC’s determination lies in its resort to the
“economic realities” test in determining whether an individual is an
employee for purposes o f the FLSA, and the view that the statute
“expressly excepted from the general definition of ‘employees’ ” indi­
viduals employed by the U.S. Government. This line of reasoning, it is
argued, renders the “economic realities” standard inoperative as a test
o f Federal employment. It is further contended that the coverage of the
FL S A is restricted to those who conform to the statutory criteria of
Federal employment set forth in 5 U.S.C. § 2105.

   1 T h e “econom ic realities” test, as generally applied by th e courts, simply refers to an
analysis o f a c o n tro v e rte d em ploym ent situation based not on isolated factors but rather
“ upon the circum stances of the w h o le activity.” Rutherford Food Corp. v. McComb, 331
U.S. 722, 730 (1947).

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   We cannot agree that the statutory framework here leads to such
conclusion. The pertinent parts of the FLSA definition of “employee”
in 29 U.S.C. § 203(e) read as follows:
        (1) Except as provided in paragraphs (2) and (3), the term
      “employee” means any individual employed by an employer.
        (2) In the case of an individual employed by a public agency,
      such term means—
             (A) any individual employed by the Government of the
           United States—
                  (i) as a civilian in the military departments (as defined
               in section 102 of Title 5),
                  (ii) in any executive agency (as defined in section 105 of
               such title),
                  (iii) in any unit of the legislative or judicial branch of
               the Government which has positions in the competitive
               service,
                  (iv) in a nonappropriated fund instrumentality under the
               jurisdiction of the Armed Forces, or
                  (v) in the Library of Congress.
It is clear that Federal employees are not deemed employees subject to
the FLSA by virtue of the “general” definition of employee set forth in
§ 203(a)(1). It is not at all clear, however, how this fact gives rise to a
conclusion that the “economic realities” test is to be inapplicable to all
individuals working in the Federal sector. The “exception” in
§ 203(e)(1) does not purport to exclude Federal employees from the
scope o f the statute or create different standards as to them, but merely
refers to § 203(e)(2). This latter provision, except for the kind of em­
ployer to which it relates, adheres strictly to the structure of the
“general” definition in § 203(e)(1)—that is, the provision defines “em­
ployee” as “any individual employed by” the pertinent employer. Be­
cause the “economic realities” test applies to determine whether this
requirement is [fulfilled with respect to the “general” definition, it
would seem equally applicable to determine whether this same require­
ment is] satisfied with respect to the question of the FLSA’s coverage
in the Federal sector.
   While the “economic realities” test may have been applicable only
with respect to the “general” definition prior to the 1974 amendments,
it does not follow that it should remain so limited today. The “general”
definition was the only one in existence prior to 1974, and as such the
“economic realities” standard was applicable in every case where the
question of coverage under the definition of “employee” arose. Absent
some contrary indication in the amendments themselves or in their
legislative history, we would expect that the same approach would hold
true today in ariy case where the issue was whether an individual was
an employee under the FLSA—whether the individual was associated
with the Government or a private employer.
                                    103
   There is no such contrary indication here; in fact, all indications are
that the “economic realities” test should be applied in the Federal
sector and that formal criteria are not to be determinative. Most funda­
mentally, if Congress had intended that formal criteria were to prevail,
it would have explicitly so stated. Instead, Congress chose a more
expansive approach. An employee is defined by the FLSA as “any
individual employed by the Government of the United States,” 29
U.S.C. § 203(e)(2)(A). [Emphasis added.] In turn, the definition of
“employ” “includes to suffer or permit to work.” 29 U.S.C. § 203(g).2
The use o f this broadly defined term with reference to the Federal
Government must thus mean that the Government could “employ” an
individual even if formal statutory criteria were not met. All that need
be done is that the Government “suffer or permit” that individual to
work in one of the areas specified in § 203(e)(2)(A)(i)-(v).
   The legislative history of the provisions at issue here bolsters this
view. That history shows that Congress intended that coverage under
the FLSA “should be interpreted broadly,” S. Rep. No. 690, 93d
Cong., 2d Sess. 56 (1974). Strict adherence to formal criteria of employ­
ment would hardly comport with this general mandate. More specifical­
ly, the legislative history is clear that the reason for extending the
FLSA to Federal employees was to subject the Federal Government
and private employers to the “same standards.” See 120 Cong. Rec.
4702 (remarks of Senator Williams). While this expression of intent
could be viewed as limited to the payment of similar minimum and
overtime wages, we believe that Congress meant for the “same stand­
ard”—including the “economic realities” test with respect to the scope
of the A ct—to apply across the board. Any doubt about this point was
resolved by the committee’s statement:
     It is the intent of the Committee that the Commission will adminis­
     ter the provisions of the law in such a manner as to assure consist­
     ency with the meaning, scope, and application established by the
     rulings, regulations, interpretations, and opinions of the Secretary
     o f Labor which are applicable in other sectors of the economy. S.
     Rep. No. 690, 93d Cong., 2d Sess. 23 (1974). [Emphasis added.] See
     also H.R. Rep. No. 913, 93d Cong., 2d Sess. 23 (1974).
The standards previously established by the Secretary of Labor with
respect to the scope and application o f the FLSA would, of course,
include the “economic realities” approach. The above statement thus
makes it quite clear that this same approach is to be applied to the

  2 Significantly, the Supreme C o u rt had previously acknow ledged the broad scope o f
the A c t under such definitions:
     In determ ining w h o are “em ployees” under the A ct, com m on law em ployee catego­
     ries o r employer-employee classifications under other statutes are not o f controlling
    significance . . . . This A ct contains its ow n definitions, com prehensive enough to
     require its application to m any persons and w orking relationships w hich, prior to this
     A ct, w ere not deem ed to fall w ithin an em ployer-em ployee category. Walling v.
    Portland Terminal Co., 330 U .S. 148, 150-51 (1947). [Emphasis added.]

                                            104
question whether an individual working for the Federal Government is
an employee under the FLSA.
   Moreover, the suggested approach of resorting to 5 U.S.C §2105
seems particularly inappropriate in this case. A resort to that section
would ignore completely the definitions of Government employees set
forth in the FLSA itself. It seems clear that the coverage of the FLSA
must be determined by reference to the definitions contained within it,
and not by criteria set forth in an unrelated title. Nothing is said to
indicate that the FLSA definitions are not sufficient in themselves; and,
more specifically, no reference is made to the definition set forth in 5
U.S.C. §2105. In fact, Congress indicated its awareness of the rel­
evance of several provisions of Title 5 by referring to them in § 203
itself (i.e., 5 U.S.C. §§ 102, 105). The absence of any similar reference to
5 U.S.C. §2105 could suggest that Congress did not intend that provi­
sion to be applicable here.3 We believe that to resort to 5 U.S.C. § 2105
would disregard the definitions that Congress carefully framed for
purposes of the FLSA and made determinative a set of criteria that
Congress gave no indication were to be relevant.4
                                               II
   The D O D also points out that, if baggers are regarded as employees
within the FLSA, problems arise with respect to other statutes—for
example, the conflict-of-interest laws, 18 U.S.C. §§201 et seq., and the
Federal T ort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. We do not
believe that CSC’s conclusion here is determinative of the question
whether a bagger is an employee for purposes of these other provisions.
The problems adverted to, therefore, may not exist. Even if problems
arise, it will not be due to CSC’s determination with respect to the
FLSA, but rather by reason of the language of these other provisions
and Congress’ purpose in enacting them.
   The D O D might argue that Congress’ failure to provide for baggers
in some respects—such as appropriations or manpower ceilings—indi­
cates that Congress did not intend to allow baggers to be paid out of
Federal funds and, therefore, by implication, did not intend that bag­
gers be regarded as employees within the FLSA. We think, however,

   3 N or is there any indication in 5 U .S.C. §2105 to the contrary. By its ow n term s, that
provision exists “ for the purpose o f this title” ; the legislative history also indicates that
the section is designed only for the purposes o f T itle 5. See S. Rep. No. 1380, 89th Cong.,
2d Sess. 47 (1966).
   4 In fact, if 5 U.S.C. § 2105 w ere to be determ inative here, it w ould not only ignore but
also com pletely nullify some o f the provisions explicity set forth in § 203. F o r exam ple,
§ 203 includes those em ployed “in a nonappropriated fund instrum entality under the
jurisdiction o f the A rm ed Forces.” 29 U.S.C. § 203(e)(2)(A)(iv). A resort to the standards
o f 5 U.S.C. §2105, how ever, w ould exclude from the definition o f em ployee (for p u r­
poses o f law s adm inistered by the C SC ) “an em ployee paid from nonappropriated funds”
o f m ilitary exchanges and other instrum entalities o f the United States under the ju risd ic ­
tion o f the A rm ed Forces. 5 U.S.C. § 2105(c). W e cannot believe that C ongress m eant, on
the one hand, to set forth certain criteria and, on the other, intended th at a m andated
resort to another statutory provision w ould abrogate those criteria.

                                              105
that this argument reads too much into Congress’ silence. In view of
the broad language of the FLSA and Congress’ aims underlying it, it is
our opinion that, in order for other provisions of law to create an
exception, they must do so specifically and clearly. Morton v. Mancari,
417 U.S. 535, 551 (1974). We therefore conclude that possible inconsis­
tency with appropriation authorization cannot be deemed to create an
exception to the usual standards by which the FLSA is to be applied.5

                                             Ill
   The D O D also argues that, even if the “economic realities” test does
apply, the most important factor to be considered is whether the indi­
vidual involved has met the formalities required by statute. If this is
meant to imply that the statutory criteria of Title 5 are to be determina­
tive, it is merely a restatement of your primary argument and must fail
for the reasons discussed above.
   M oreover, we doubt whether it is even proper to regard a failure to
satisfy statutory criteria as o f great, rather than controlling, importance.
The courts have made clear that the test of an employment relationship
is not to depend on technical or isolated factors, but rather “upon the
circumstances of the whole activity.” Rutherford Food Corp. v.
McComb, supra, at 730; Goldberg v. Whitaker House Cooperative, Inc.,
366 U.S. 28, 33 (1961); Hodgson v. Griffin and Brand o f McAllen, Inc.,
471 F. 2d 235, 237 (5th Cir. 1973). Thus CSC might quite properly
accord more weight to other factors more indicative of the economic
realities o f the situation.
   W e do not read your request for our opinion as asking for our views
generally as to CSC’s application of the “economic realities” test to the
facts of this particular case. Nor do we believe that such as assessment
is within our province, because such determinations are lodged by law
in the Commission. 29 U.S.C. 204(f). Additionally, insofar as the appli­
cation of the “economic realities” test involves an examination of all the
relevant facts and circumstances, we think that the Commission is
better suited than this Office to make such a determination. In fact, to




   5 T h e fact th at C ongress has d irected D O D to reduce com m issary personnel and the
co st o f com m issary operations, is not so specifically o r explicitly addressed to the
situation here as to allow for an exception to C ongress’ expansive approach in the 1974
am endm ents. R ather, the mandate to cut costs m ust be view ed in light o f the usual rule
th a t congressional enactm ents are to be read in harm ony, see, Morton v. Mancari, supra,
and w e thus believe th at this directive m ust be applied w ithin the constraints imposed by
o th e r congressional enactments.


                                            106
the extent that such an evaluation is a mixed question of law and fact,6
it is beyond the authority of this Office. 28 U.S.C. §512. See 20 Op.
A.G. 240, 242 (1891); 20 Op. A.G. 711 (1894); 19 Op. A.G. 676 (1890).
   The decision to apply the FLSA concept of employment to the
Federal sector was made by Congress, and in our opinion any other
view would depart from the broad language of the statute and Con­
gress’ underlying purpose. We accordingly conclude that the criteria of
Title 5 are not controlling and that CSC’s application of the “economic
realities” test to determine the question of the applicability of the
FLSA in the Federal sector is proper.
                                                       John M. H      arm on
                                           Acting Assistant Attorney General
                                                          Office o f Legal Counsel




   •W hile the courts have adopted different approaches to this problem , compare, Walling
v. General Industries Co., 330 U.S. 545, 550 (1947), Wirtz v. Lone Star Steel Company, 405
F. 2d 663, 669-70 (5th Cir. 1968) (applying the clearly erroneous rule to a question
involving the application o f the FL SA ), with Rutherford Food Corp. v. McComb, supra,
Shultz v. Hinojasa, 432 F. 2d 259, 264 (5th Cir. 1970) (regarding the question o f F L S A
coverage as one o f law), the question here, involving the application o f a standard to all
the circum stances o f a given situation, presents a mixed question o f law and fact. T his
appears particularly true w here, as here, inferences that are draw n from the facts and are
factors in the ultim ate determ ination are subject to conflicting interpretations; yo u r
D epartm ent’s and the Com mission’s differences on the question o f supervision o r co n tro l
are one such example.

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