Full opinion text
ORDER WHIPPLE, District Judge. Plaintiffs have brought a wage and hour claim against Defendants under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. Plaintiffs are current and former sheriffs deputies, dispatchers, and jailers with the Stone County; Missouri Sheriffs Department. These Plaintiffs have sued the Stone County Commission, current Commissioners Tony DeLong and Alden Hembree, former Commissioner Duane Clark, Stone County Clerk Carolyn Dean, current Stone County Sheriff Richard Hill and former Stone County Sheriff Lonnie Mease. Plaintiffs claim is for unpaid overtime pursuant to the FLSA. Starting April 29, 1998, the Court conducted a three day bench trial on these claims. For the following reasons, the Court finds that Plaintiffs’ rights under the FLSA have been violated. I.FINDINGS OF FACT A. Plaintiffs 1. Plaintiff Baker was hired on March 6, 1995, as a sheriffs deputy and is still employed in that capacity by the Sheriffs Department. During his employment with the Sheriffs Department, Plaintiff Baker has earned the following hourly wages: 2. Plaintiff Janie Beck was employed by the Stone County Sheriffs Department on March 23, 1993, and is still employed. Plaintiff Beck was employed as a dispatcher until January, 1997, at which time she was promoted to Dispatch Supervisor. During her employment with the Sheriffs Department, Plaintiff Beck has earned the following hourly wages: 3. Plaintiff Jimmy Beck was hired by the Stone County Sheriffs Department on January 26, 1993, and is still employed. Plaintiff was initially employed as a correctional officer and was transferred to the position of Sheriffs deputy on September 22, 1995. During his employment with the Sheriffs Department, Plaintiff Jimmy Beck has earned the following hourly wages: 4. Plaintiff Greg Bolin was hired by the Sheriffs Department on or about January 8, 1995, as a jailer. He became a deputy sheriff on or about October 17, 1995. Plaintiff Bolin’s employment with the Sheriffs Department terminated on or about December 31, 1996. During his employment with the Sheriffs Department, Plaintiff Bolin earned the following hourly wages: Upon his termination from employment with the Sheriffs Department, Bolin accepted payment equal to 23.50 hours of accrued compensatory time and signed a written receipt. 5.Plaintiff Paul Branstetter was hired by the Sheriffs Department on or about March 23, 1993, as a jailer. He became a dispatcher on or about October 31, 1994, and a deputy sheriff on or about January 1, 1995. He is still employed by the Sheriffs Department as a deputy sheriff. During his employment with the Sheriffs Department, Plaintiff Branstetter earned the following hourly wages: 6. Plaintiff Gary Max Carr was hired by the Sheriffs Department on or about April 1, 1993, as a deputy sheriff, and he is still employed in that capacity. During his employment with the Sheriffs Department, Plaintiff Carr has earned the following hourly wages: 7. Plaintiff Gary Kent Doucey was hired by the Sheriffs Department on or about August 8, 1991, as a dispatcher. He became a deputy sheriff on or about February 7, 1994. His employment with the Sheriffs Department terminated on or about April 12, 1997. During his employment with the Sheriffs Department, Plaintiff Doucey earned the following hourly wages: 8.Plaintiff Tim Gideon was hired by the Sheriffs Department on or about February 8, 1994, as a deputy sheriff and he is still employed in that capacity. During his employment with the Sheriffs Department, Plaintiff Gideon has earned the following hourly wages: 9.Plaintiff William Heagerty was hired by the Sheriffs Department on or about November 16, 1994, as a jailer. In April, 1996, he became jail administrator. His employment with the Sheriffs Department terminated on December 31,1996. During his employment with the Sheriffs Department, Plaintiff Heagerty earned the following hourly wages: At his termination, Plaintiff Heagerty received payment for 64.49 hours which were his “comp time hours that [were] left.” 10. Plaintiff William Heinzl was hired by the Sheriffs Department on or about February 1, 1990, as a deputy sheriff and he is still employed in that capacity. During his employment with the Sheriffs Department, Plaintiff Heinzl has earned the following hourly wages: 11. Plaintiff A1 Kinser was hired by the Sheriffs Department on or about January 1, 1991, as a deputy sheriff. His employment terminated October 10, 1997. During his employment with the Sheriffs Department, Plaintiff Kinser earned the following hourly wages: 12.Plaintiff Alan Miller was hired by the Sheriffs Department on or about April 1, 1994, as a deputy sheriff. His employment terminated on or about November 27, 1996. During his employment with the Sheriffs Department, Plaintiff Miller earned the following hourly wages: At the time of his termination, Plaintiff Miller was paid for 262 hours of accrued compensatory and holiday time 13. Plaintiff Jeff Myers was hired by the Sheriffs Department on or about February 8, 1995, as a dispatcher. He became a jailer on or about January 1, 1996, and a deputy sheriff on or about November 1, 1996. He is still employed. During his employment with the Sheriffs Department, Plaintiff Myers has earned the following hourly wages: 14. Plaintiff Alan Outhouse was hired by the Sheriffs Department on or about January 1, 1989, as a deputy sheriff. His employment terminated on December 11, 1996. During his employment with the Sheriffs Department, Plaintiff Outhouse earned the following hourly wages: 15. Plaintiff Tim Rinehart was hired by the Sheriffs Department on or about June 1, 1995, as a dispatcher. He became a deputy sheriff on or about August 29,1996, and is still employed. During his employment, Plaintiff Rinehart has earned the following hourly wages: 16. Plaintiff Alan Stuart was hired by the Sheriffs Department on or about April 6, 1996. Plaintiff Stuart was a dispatcher/]'ailer for three months and then a dispatcher. His employment terminated in April 1997. During his employment with the Sheriffs Department, Plaintiff Stuart earned the following wages: 17. Plaintiff Nina Stults was hired by the Sheriffs Department on or about June 26, 1989, as a dispatcher. Her employment terminated December 31, 1996. During her employment with the Sheriffs Department, Plaintiff Stults earned the following hourly wages: At the time of her termination, Plaintiff Stults received payment for 13.50 compensatory hours which were “all comp hours that are left.” 18. Plaintiff Forrest Thompson was hired by the Sheriffs Department on or about June 6, 1994, as a deputy sheriff. His employment terminated on or about October 14,1996. During his employment with the Sheriffs Department, Plaintiff Thompson earned the following hourly wages: 19. Plaintiff Hazel Turner was hired by the Sheriffs Department on or about June 25, 1988, as a dispatcher, and is still employed. During her employment with the Sheriffs Department, Plaintiff Turner has earned the following hourly wages: 20. Plaintiff Vernon Warren was hired by the Sheriffs Department on or about January 1, 1989, as a deputy sheriff. His employment terminated February 28, 1997. During his employment with the Sheriffs Department, Plaintiff Warren earned the following hourly wages: B. Defendants 21. Defendant Stone County, Missouri is a county in the third class. Rev.Mo.Stat. § 48.020. 22. The County Commission is composed of three members, styled “commissioners.” Rev.Mo.Stat. § 49.010. The presiding commissioner is elected to four-year terms. Rev.Mo.Stat. § 49.020. Prior to 1996, associate commissioners were elected to two-year terms. As of the general election in 1996, associate commissioners are also elected to four-year terms. Id. 23. Defendant Tony DeLong was elected to the position of Associate Commissioner of Stone County, Missouri in November, 1992, and has served as a Commissioner since. Since January, 1995, DeLong has held the position of Presiding Commissioner. 24. Defendant Alden Hembree was elected to the position of Associate Commissioner of Stone County, Missouri in November, 1988, and has been continuously reelected since. 25. Defendant Duane Clark was elected to the position of Associate Commissioner of Stone County, Missouri in November, 1994, and held the position for one two-year term. 26. Each county elects a county clerk every four years. Rev.Mo.Stat. § 51.020. The county clerk keeps an accurate record of commission proceedings. Rev.Mo.Stat. § 51.120. The clerk is also required by law to keep the necessary records and collect contributions from county employees for social security purposes. Rev.Mo.Stat. § 51.165. 27. Defendant Carolyn Dean was elected to the office of County Clerk of Stone County, Missouri in November, 1986, and has been continuously reelected since. 28. A county sheriff is elected every four years. Rev.Mo.Stat. § 57.010. 29. Defendant Lonnie Mease was elected to the position of Sheriff of Stone County, Missouri in 1988, and held that position for two terms until December 31,1996. 30. Defendant Richard Hill was elected to the position of Sheriff of Stone County, Missouri in November, 1996. He took office on December 31, 1996, and currently holds that office. He had previously worked for the Stone County Sheriffs Department as Chief Deputy beginning February 7,1994. 31. The Stone County Sheriffs Department is a small department. It currently employs 35 employees — nineteen sheriffs deputies, six dispatchers, a jail administrator, and nine correctional officers. 32. As County Clerk, Defendant Dean does not have the authority to do, and has not done, any of the following acts with regard to deputy sheriffs or other Sheriffs Department employees: a. appoint; b. evaluate or otherwise review job performance; c. discipline; d. discharge; e. transfer; f. schedule; g. set wage rates; h. grant pay increases or decreases; i. change job duties; or j. grant days off for sickness, holidays or use of compensatory time. 33 As County Clerk, Defendant Dean does not have the authority to affect the working terms or conditions of any deputy sheriff or Sheriffs Department employee. 34. As County Clerk, Defendant Dean has absolutely no control over the scheduling of overtime for sheriffs deputies and other Sheriffs Department employees. C. Employment of Deputy Sheriffs and Other Sheriffs Department Employees 35. The fiscal year of a county commences on January first and terminates on the thirty-first day of December in each year. Rev.Mo.Stat. § 50.010. 36. The county clerk is the budget officer in class three counties. Rev.Mo.Stat. § 50.530(2) 37 On or before January 15th of each year, each county office holder must prepare and submit to the budget officer an estimated budget. Rev.Mo.Stat. § 50.540. 38. The budget officer then prepares the budget and transmits it to the .County Commission no later than February first. Rev.Mo.Stat. § 50.540. 39. The County Commission may revise the budget submitted by the budget officer. Rev.Mo.Stat. § 50.740. 40. Missouri law requires a County Commission to balance its budget; the County may not run a deficit. Missouri Revised Statute § 50.610 requires: After the budget hearings, the county commission may revise, alter, increase or decrease the items contained in the budget arid may eliminate any item or add new items. If it increases the total proposed expenditures from any fund so that the total proposed expenditures exceed the total estimated income, it shall also make provision for the necessary additional income so that the budget adopted shall provide revenue at least equal to expenditures for each fund.... At the same time, the county commission shall tentatively fix the tax rate necessary to balance the budget. • The budgetary requests of all county officials, including Sheriff, are subject to the final authority of the county commission and its responsibility to balance the budget. 41. As part of the budget process, the County Commission meets with each county officeholder regarding his or her budget. Under Missouri law, it is the duty of Stone County to pay the salaries of Sheriffs deputies. Missouri Revised Statute § 57.230 provides: The County shall pay the salaries, in the amount approved by a majority of the circuit judges of the circuit court, of each deputy appointed by the sheriff and approved by a majority of the circuit judges of the court. 42. Pursuant to Rev.Mo.Stat. § 57.250, the Circuit Judge of the county determines the number of sheriffs deputies and other Sheriffs Department employees. The Circuit Judge also determines the compensation of sheriffs deputies and other Sheriffs Department employees. Missouri Revised Statute § 57.250 provides: The sheriff ... shall be entitled to. such number or deputies and assistants, to be appointed by such official, with the approval of a majority of the circuit judges of the circuit court, as such judges shall deem necessary.... Such judges of the circuit court, in their order permitting the sheriff to appoint deputies or assistants, shall fix the compensation of such deputies or assistants. 43. As part of the budget process, the Stone County Commission sets wage guidelines for sheriffs deputies and other Sheriffs Department employees. If the Sheriff contests the wage guidelines set by the County Commission, the Circuit Judge for Stone County sets the wages. The Circuit Judge has final authority to set wages for all Sheriffs Department employees. 44. In practice, through at least the 1995 fiscal year, the Stone County Commission set the salaries for each deputy, dispatcher, and jailer. During this period the Commission also determined how many deputies, dispatchers, and jailers were hired. 45. The Commission had told Sheriffs Mease and Hill that it would not pay employees of the Sheriffs Department overtime. Mease and Hill have both petitioned the Commission to change this policy several times. 46. The Stone County Sheriff does not control the funds with which deputies are paid nor can the Sheriff force the County to pay overtime. It is also beyond the Sheriffs authority to order the Circuit Judge or the Commission to pay deputies overtime. 47. During the budget process for 1998, Sheriff Richard Hill rejected the wage guidelines recommended by the County Commission for Sheriffs Department employees. The wages for 1998 were set by Judge Ed Sweeney, Circuit Judge for Stone County, Missouri. Judge Sweeney set some rates higher than those proposed by the County Commission. 48. The time cards of Sheriffs Department employees are provided to the Sheriff who directs the preparation of pay vouchers which show the total number of hours worked in the pay period. The time cards and pay vouchers are signed by the Sheriff and transmitted to the County Clerk’s office. 49. The County Clerk’s office reviews the time cards and pay vouchers of Sheriffs Department employees only to determine if hours have been accurately accounted as holiday leave, sick leave or compensatory time and if the addition is correct. The County Clerk’s office then prepares paychecks for the Sheriffs Department employees, as well as all other county employees, with the appropriate deductions. 50. The time cards and pay vouchers are maintained in the County Clerk’s office. 51. Without consulting the Sheriff, the County unilaterally: changed the pay period for the Plaintiffs from two weeks to foui* weeks; attempted to enforce new lunch hour regulations; and altered its holiday policy. 52. During the tenures of Sheriff Mease and Sheriff Hill, the Stone County Commission and the individual commissioners have not had the authority to do any of the following acts with regard to deputy sheriffs or other Sheriffs Department employees: a. appoint; b. evaluate or otherwise review job performance; c. discipline; d. discharge; e. transfer; f. schedule; g. set final wage rates; h. grant pay increases or decreases; i. change job duties; j. schedule days off for sickness, holidays or use of compensatory time. 53. During the tenures of Sheriff Mease and Sheriff Hill, the Stone County Commission and its individual members have had absolutely no control over the scheduling of overtime for sheriffs deputies and other Sheriffs Department employees. 54. Sheriffs have statutory authority to appoint deputy sheriffs and assistants. Mo.Rev.Stat. § 57.250. The Sheriff “may at any time discharge any deputy or assistant and may regulate the time of such person’s employment.” 55. The Sheriff has sole authority to hire Sheriffs Department employees. 56. The Sheriff has sole authority to fire Sheriffs Department employees. When Sheriff Hill took office in December, 1996, he discharged some personnel. 57. The Sheriff has sole authority to discipline Sheriffs Department employees. 58. The Sheriff has sole authority to transfer employees from one position. 59. All scheduling of Sheriffs Department employees is done by the chief deputy and sergeants. No one outside the department is responsible for scheduling. 60. No one outside the Sheriffs Department is responsible for scheduling overtime. 61. The sheriffs deputies can perform any duty of the Sheriff subject to the Sheriffs direction. 62. A Sheriff is often considered responsible for anything a deputy does. 63. Sheriffs Mease and Hill did not personally supervise the activities of these Plaintiff employees. 64. Hill’s Chief Deputy, Wayne Neeley, attends to the day to day supervision of the office. Hill, prior to be elected Sheriff, was the Chief Deputy for Mease and attended to these same duties. 65. In the Sheriffs office it was the Chief Deputies responsibility to schedule the employees work shifts, to take their grievances, and to make adjustments to their schedules. Employees also directed then-requests for overtime, compensatory time, and time off to the Chief Deputy. 66. Sheriffs Mease and Hill never scheduled meetings with them deputies to discuss official office policy or practice. The Plaintiffs were not part of the Sheriffs’ command staffs. Nor did the Sheriffs ever request that any of the Plaintiffs represent them before the County Commission or in any other official capacity. 67. All of the Plaintiffs testified that if a question arose regarding the performance of their duties they consulted the Chief Deputy and not the Sheriff. With the exception of Bill Heinz, who works in Internal Affairs, none of the Plaintiffs saw or were exposed to confidential materials about the setting of office policies or discipline. Heinz may see discipline complaints and occasionally performs an investigation on these complaints, but he does not recommend or take part in decisions concerning the discipline of other officers. 68. Plaintiffs Janie Beck, Stults, Heinzl, and Heagerty have all held supervisory positions within the Sheriffs Department. 69. While Mease was Sheriff, many of the Plaintiffs who worked for the Sheriffs Department would not see or have contact with him for weeks at a time. 70. The Plaintiffs who worked the night shifts as dispatchers, deputies, and jailers had very little contact with either Mease or Hill and often would not see them for weeks at a time. 71. On April 27, 1989, Stone County adopted personnel policies and provisions for all county employees including the Sheriffs Department. These regulations set holidays, .the number of sick days, various benefits, provisions for a forty-hour work week for all employees, and a paid lunch time for all employees of the County. The 1989 policy required all full-time employees of the County to work a forty-hour week. Compensatory time was awarded for each hour worked in excess of forty hours a week. The 1989 policy was followed by the County. 72. In 1991, the Stone County Commission was sued in the Circuit Court of Stone County, Missouri for unpaid overtime by a Stone County deputy sheriff in a case styled Ronald F. Weber v. Stone County, et at, Case No. CV591-18CC. The plaintiff alleged that the personnel policy in effect at that time allowed all personnel, including law enforcement personnel, to receive overtime for hours worked in excess of 40 hours per week. The lawsuit was settled. 73. During 1991, the Sheriffs Department was also investigated by the United States Department of Labor, Wage and Hour Division, for FLSA violations. The Wage and Hour Division concluded that overtime violations had occurred with respect to eight Sheriffs Department employees. 74. As a direct result of the lawsuit and investigation, the Stone County Commission and Sheriff Mease sought expert advice regarding overtime policies for the Sheriffs Department. They were advised that the FLSA allows employers of law enforcement personnel to adopt a policy whereby overtime for those employees is incurred only for hours worked in excess of 171 hours in a 28-day work period. See 29 U.S.C. § 207(k). 75. Eager to put this policy into place, the Stone County Commission issued the Stone County Personnel Policies in 1991. The Stone County Personnel Policies were adopted by Sheriff Mease, and copies were provided to all current employees. Copies have also been provided to new hires. 76. The Policies contained an Addendum applicable to the Sheriffs Department of Stone County, which provided: The work period/pay period for emergency service personnel of the Stone County Sheriffs Department is 28 days. An employee must work more than 171 hours within the 28 day period to be eligible for compensatory time or overtime pay. All hours worked beyond the 171 hours will be compiled at 1.5 times the number of hours worked beyond the limit. The Sheriff and the Stone County Commission retain the right to determine how hours worked beyond the limit of 171 hours will be compensated (by either being paid compensation or compensatory time off). Employees can accrue a maximum of 480 hours of compensatory time. This provision will be referred to as the “Section 207(k) Policy.” 77. Following his election, Sheriff Hill continued the Section 207(k) Policy. 78. Since 1991, the County Clerk has calculated overtime for law enforcement personnel based on the Section 207(k) policy. 79. Since 1991, the Clerk of Stone County has kept all employee records, including all records required to pay employees of the Sheriffs department. Even if the Sheriff or deputy request payment for overtime the Commission Clerk would not issue such a check. 80. Plaintiffs Janie Beck, Jimmy Beck, Bolin, Branstetter, Carr, Doucey, Gideon, Heagerty, Kinser, Miller, Outhouse, Stuart, Stults, Thompson, Turner, and Warren signed acknowledgments that they received the Stone County Personnel Policies. Plaintiffs testified they did not recall whether they received the Addendum but there is no reason to believe they did not. 81. Since 1991, the Stone County Sheriffs Department has had in place a valid Section 207(k) Policy for its law enforcement personnel 82. With the Section 207(k) Policy in place, Plaintiffs had an understanding they would receive compensatory time for overtime hours rather than pay. The Policy as written gave the Sheriff and Commission discretion to decide how overtime would be compensated. The practice for years has been that compensatory time is awarded for overtime and none of the Plaintiffs complained about the system to Defendants County or Dean. Finally, there is evidence that Plaintiffs were advised at hiring that they would receive comp time for overtime hours worked. 83. With regard to calculating overtime, all Sheriffs Department employees are paid for 160 hours in a 28-day work period. If they work less than 160 hours, they must use accrued time off or holiday time to make up the difference. If they work more than 160 hours, the extra time is allocated to a “bank”. 84. For dispatchers, who are the only non-law enforcement Plaintiffs, overtime is allocated to a “comp bank” at time-and-a-half. Dispatchers earn compensatory time for each hour worked in excess of 40 hours per week. 85. Since jailers and sheriffs deputies are law enforcement personnel subject to the Section 207(k) Policy, hours worked in excess of 171 are allocated to a comp bank at time-and-a-half. Hours worked between 160 and 171 are allocated to a “straight time bank” one for one. 86. Additionally, all Sheriffs Department employees are awarded 96 holiday hours each year to be used at their discretion. These hours are kept in a “holiday bank”. 87. When a law enforcement officer works less than 160 hours in a 28-day work period or a dispatcher works less then 40 hours in a 7-day work period, the difference is subtracted from one of his or her time banks. The time can be subtracted from the officers straight time bank, compensatory time bank, or holiday time bank. 88. Based on calculations performed by Defendant Dean, which the court finds to be credible, none of the Plaintiffs whom are currently employed have comp time hours exceeding 480, which is the maximum number allowed by law. 89. In this case, the sheriffs deputies and jailers are in a “public safety activity,” 29 C.F.R. § 553.24(C), and the dispatchers perform “emergency response activities,” 29 C.F.R. § 553.24(d). Such employees may accrue up to 480 hours of compensatory time. 29 U.S.C. § 207(o)(3)(A). 90. It is creditable that Officer Gary Carr spends an average of 5 .5 hours per week on activities relating to the care of the County’s drug dog. II. CONCLUSIONS OF LAW This case raises a variety of issues concerning compensation for overtime work and the FLSA. First, the Court must determine whether the Plaintiffs are covered by the FLSA. The Defendants argue that they do not qualify as “employers” under the FLSA and that the Plaintiffs do not qualify as “employees” under the Act because they serve as personal staff to the Stone County Sheriff. Second, if the Plaintiffs are covered by the FLSA the Court must determine if they have been properly compensated for overtime hours works. This issue contains three sub-issues: (1) when do the Plaintiffs accrue overtime hour (does § 207(k) of the FLSA apply to the Plaintiffs); (2) how must Plaintiffs be compensated for overtime hours worked (does § 207(o) of the FLSA apply to the Plaintiffs); and (3) if Plaintiffs are entitled to compensatory time for overtime hours worked, how' should the Plaintiffs total compensatory time banks be calculated. This case also present»4he related issues of whether the FLSA’s two or three year statute of limitation should be applied and whether the Defendants willfully violated the FLSA. Finally, this case raises the issues of qualified immunity as it applies to officials acting in their individual capacity. The Court addresses these issues in turn. A. Threshold Issues Under FLSA Plaintiffs hold the initial burden of proving that an employer-employee relationship existed between them and the Defendants. See Reich v. ConAgra, Inc., 987 F.2d 1357, 1360 (8th Cir.1993) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946); Marshall v. Truman Arnold Distrib. Co., Inc., 640 F.2d 906, 911 (8th Cir.1981)). As a practical matter, Defendants do not dispute that the Plaintiffs worked for the Stone County Sheriffs Department. The FLSA, however, uses specific definitions of employer and employee. Consequently, the Court begins by considering whether the Defendants were “employers” of the Plaintiffs as defined by the FLSA. Second, if the Defendants were employers of the Plaintiffs the Court must consider whether the Plaintiffs meet the FLSA’s definition of “employees.” 1. Whether Defendants are “Employers” Under the FLSA The FLSA itself is the starting point for the analysis. Under the FLSA, an employer “includes any person acting directly or indirectly in the interest of an employer in.relation to an employee and includes a public agency.” 29' U.S.C. § 203(d). An employee is “any individual employed by an employer,” 29 U.S.C. § 203(e)(1) and, “[i]n the case of an individual employed by a public agency,” employee means any “individual employed by a State, a political subdivision of a State, or an interstate government agency.” 29 U.S.C. § 203(e)(2)(C). “Employ” is defined under the FLSA as “to suffer or permit to work,” 29 U.S.C. § 203(g), and the FLSA contemplates that an employee may have more than one employer responsible for its provisions. E.E.O.C. v. State of Missouri, Department of Soc. Serv., 617 F.Supp. 1152, 1158 (E.D.Mo.1985) (citing Donovan v. Agnew, 712 F.2d 1509, 1509-10 (1st Cir.1983); Bonnette v. California Health and Welfare Agency, 704 F.2d 1465, 1469 (9th Cir.1983)). Courts are to construe the terms “employee” and “employer” expansively. See e.g. Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 112 S.Ct. 1344, 1350, 117 L.Ed.2d 581 (1992); Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 296, 105 S.Ct. 1953, 1959, 85 L.Ed.2d 278 (1985); United States v. Rosenwasser, 323 U.S. 360, 65 S.Ct. 295, 89 L.Ed. 301 (1945) (“[a] broader or more comprehensive coverage of employees within the stated categories would be difficult to frame”). Courts have worked to add substance to the FLSA’s vague terms to ensure that an employment relationship exists in fact before the FLSA applies. Brickey v. County of Smyth, Virginia, 944 F.Supp. 1310, 1315 (WD.Va.1996). The Supreme Court has indicated that courts should apply an “economic realities” test to determine whether an employment relationship exists. Tony & Susan Alamo, 471 U.S. at 301, 105 S.Ct. at 1961; Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 33, 81 S.Ct. 933, 936, 6 L.Ed.2d 100 (1961). Merely labeling the individual as employee or independent contractor is not dispositive. Donovan v. Tehco, Inc., 642 F.2d 141, 143 (5th Cir. 1981). Although courts do not apply the traditional common law analysis to distinguish between “employees,” to whom the Act applies, and “independent contractors,” to whom it does not, Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1534 (7th Cir.1987), cert. denied, 488 U.S. 898, 109 S.Ct. 243, 102 L.Ed.2d 232 (1988); Brock v. Mr. W Fireworks, Inc., 814 F.2d 1042, 1043 (5th Cir.), cert. denied, 484 U.S. 924, 108 S.Ct. 286, 98 L.Ed.2d 246 (1987), courts have derived different multi-factor tests to determine whether defendants are employers under the FLSA. Whether counties or municipal subdivisions are “employers” of sheriffs’ deputies presents somewhat of a difficult question for FLSA analysis. Sheriffs’ deputies are not independent contractors. They are employees. The question remains, however, who is their employer: the sheriff, the county, or the State? Courts have borrowed from independent contractor analysis to determine whether a sufficient employment relationship exists between county and deputies. See Barfield v. Madison County, Miss., 984 F.Supp. 491, 497 (S.D.Miss.1997); Brickey, 944 F.Supp. at 1315; Keenan v. Allan, 889 F.Supp. 1320, 1381 (E.D.Wash.1995), aff'd, 91 F.3d 1275 (9th Cir.1996). An employer under the Act is someone who (1) has the power to hire and fire the employee, (2) supervises and controls the employee’s work schedule or conditions of employment, (3) determines the rate and method of payment, and (4) maintains employment records. Id. The Eighth Circuit has adopted similar standards for determining whether an employment relationship exists. “Courts have looked to factors such as the control of hiring and firing of employees, control of the manner in which work is performed, and the fixing of employee wages in determining who is the ‘employer.’ ” Dole v. Continental Cuisine, Inc., 751 F.Supp. 799, 802-03 (E.D.Ark.1990) (citing Wirbz v. Pure Ice Company, 322 F.2d 259 (8th Cir.1963); Fruco Const. Co. v. McClelland, 192 F.2d 241 (8th Cir.1951)). Consistent with the purpose of the four factor test, no one factor is dispositive, but instead a court must consider the economic realities and the circumstances of the whole activity. Brickey, 944 F.Supp. at 1315 (citations omitted). Accordingly, the Court applies these four factors to this case. a.Power to hire and fire The Sheriff of Stone County has the sole authority to hire and fire deputies, dispatchers, jailers, and all other Sheriffs Department personal. Mo.Rev.Stat. § 57.250. The Sheriff does not have the authority to simply hire any number of deputies he or she desires. The Circuit Judge in Stone County must approve the number of deputies which the Sheriff may hire. Once the number of deputies is determined, or once it is determined that the Sheriff may hire an additional deputy, the decision of who to hire is left solely to Sheriff. b.Supervises and controls the employee’s work schedule and conditions of employment The Sheriff of Stone County also controls, or is ultimately responsible for, the day to day activities and duties of the deputies, dispatchers, jailers, and other Sheriffs Department personal. The evidence presented at trial demonstrates that the Sheriff directs the manner in which the Plaintiffs perform their daily activities. The Sheriff is also responsible for scheduling when the Plaintiffs worked, although this activity is frequently performed by the Chief Deputy. The Stone County Commission, however, does influence the scheduling of deputies. Barfield, 984 F.Supp. at 497 (finding that “although Madison County lacks the power to hire and fire, the County has some control in this area by allocating funds to the Sheriff to operate his department.”). Evidence was presented at trial that Sheriffs Mease and Hill repeatedly requested authorization from the Stone County Commission to pay their deputies for overtime. This request was repeatedly denied. Such behavior on the part of the County Commission certainly had an impact on the scheduling of Sheriffs Department employees and the conditions under which they worked. c.Determines rate and method of payment Pursuant to Missouri Revised Statute § 57.230: “The county shall pay the salaries, in the amount approved by a majority of the circuit judges of the circuit court, of each deputy appointed by the sheriff and approved by a majority of the circuit judges of the court.” Consequently, while the Stone County Commission is ultimately responsible for paying the Sheriffs Department employees, it is the Stone County Circuit Judge who has the final say on the deputies rate of pay. The Stone County Commission sets wage guidelines for deputies and other Sheriffs Department employees. If the Sheriff contests the wage guidelines set by the County Commission, the Circuit Judge for Stone County sets the wages. During the budget process for 1998, Sheriff Richard Hill rejected the wage guidelines recommended by the County Commission for Sheriffs Department employees. The wages for 1998 were set by Judge Ed Sweeney, Circuit Judge for Stone County Missouri. In practice, at least through the 1997 fiscal year, the Stone County Commission set the salaries for each deputy, dispatcher, and jailer. During this period the Commission also determined how many deputies, dispatchers, and jailers were hired. The Commission had told Sheriffs Mease and Hill that it would not pay employees of the Sheriffs Department overtime. Mease and Hill have both petitioned the Commission to change this policy several times. The Stone County Sheriff does not control the funds with which deputies are paid nor can the Sheriff force the County to pay overtime. It is also beyond the Sheriffs authority to order the Circuit Judge or the Commission to pay deputies overtime. From the evidence presented at trial it is evident that the Stone County Commission has played a significant part in setting the Sheriffs Department budget in Stone County. It is also clear that in most years the Commission has had the final word on what the budget would be. d. Maintains employment records The Clerk of the Stone County Commission kept track of all employee time sheets and payment records. The time cards of the Sheriffs Department employees are provided to the Sheriff by the Clerk of the County Commission. The Sheriff directs the preparation of pay vouchers which show the total number of hours worked in the pay period. The time cards and pay vouchers are signed by the Sheriff and transmitted to the County Clerk’s office. The County Clerk reviews the time cards. The Clerks determines if the hours have been accurately accounted for including time worked, holiday leave, sick leave, and compensatory time. The Clerk has also made the determination, in the past, that the County would not reimburse employees for certain recorded time. The Clerk determined that deputies would not be reimbursed for certain lunch breaks taken. This determination was made without consultation of the Sheriff and the policy was later abandoned. Also without consulting the Sheriff, the County changed the Sheriff’s Department’s pay period from two weeks to four and altered its holiday policy. The Clerk’s office prepares paychecks for all Sheriffs Department employees and makes all appropriate deductions. The time cards, pay vouchers, and all time records are maintained by the Clerk’s office. e. Conclusion: Defendants Stone County Commission and Sheriffs Mease and Hill are Co-employers of Plaintiffs In conclusion, the Court finds that the Stone County Commission and Sheriff are joint employers of the Plaintiffs in this ease. See Barfield, 984 F.Supp. at 499 (concluding that both Sheriff and County were co-employers of Sheriffs deputies under similar facts). Although this case has resulted in the Stone County Commission and the Stone County Sheriff being named as co-defendants, it is clear that these parties have been antagonistic for years. The County complains that only the Sheriff is responsible for scheduling the Plaintiffs, and the Sheriff complains that the County requires the Sheriff to perform specific duties and then limits the number of personal which can be hired and the number of hours which those personal can work by refusing to pay overtime. Under Missouri law each county commission is required to operate the county with the revenue available to them. Mo. Rev.Stat. § 50.610. The county budget “shall provide revenue at least equal to expenditures for each fund.” Id. In Missouri neither the state nor counties may operate with budget deficits. It is not practical or feasible under Missouri’s system of government to allow any office holder to spend any amount of money he or she deems necessary to run his or her office. • It would not be wise to allow county sheriffs or other office holders to operate without requiring the county commission to approve their budget. The Commission can tie the hands of the Sheriff with the purse strings of the County, which only it can control. Moreover, the evidence shows that the Commission convinced Sheriff Mease that he had to adopt their 1991 employment policy. Consequently, the Court concludes that due to its budgetary authority and ability to virtually “shut down” the Sheriffs Department, the members of the Stone County Commission, in their respective official capacities, are employers of the Plaintiffs. The Court, however, also concludes that the Stone County Sheriff, due to his or her ability to exercises almost exclusive control over the daily activities and schedules of the Plaintiffs, is an employer of the Plaintiffs. Therefore, Stone County is potentially liable for the payment of overtime as the employer of the Plaintiffs (1) due to the status of the Sheriff in his official capacity as their employer, and (2) due to the status of the members of the Commission in their official capacities as the employers of the Plaintiffs. 2. Whether Plaintiffs are “Employees” Under the FLSA The second threshold issue is whether the Plaintiffs are “employees” under the FLSA. Section 203(e)(1) states that “Except as provided in paragraphs (2), (3), and (4) the term ‘employee’ means any individual employed by an employer.” Courts are to construe the term “employee” expansively. Nationwide Mutual Insurance Co. v. Darden, 503 U.S. at 318, 112 S.Ct. at 1350. As noted above, the Court has concluded that the Plaintiffs are employed by the County Commission and the Sheriff of Stone County, Missouri. While the Defendants do not dispute that the Plaintiffs fall within the general definition of “employee” under the § 203(e)(1), they do contend that the Plaintiffs fall within one of the exceptions to this definition. The term “employee” as used in the FLSA does not include individuals selected by an officeholder to be “a member of his personal staff.” 29 U.S.C. § 203(e)(2)(C)(II). Defendants argue that the Plaintiffs were all members of Sheriffs Mease and Hill’s personal staffs and, therefore, the Plaintiffs are not employees covered by the FLSA. a. Guidance from the Department of Labor The FLSA does not define the term “personal staff,” but the Secretary of Labor promulgated a regulation which provides: The statutory term “member of personal staff’ generally includes only persons who are under the direct supervision of the selecting official and have regular contact with such official. The term typically does not include individuals who are directly supervised by someone other than the elected official even though they may have been selected by the official. 29 C.F.R. § 553.11(b). Moreover, the Secretary of Labor has consistently argued that sheriffs’ deputies are not the personal staff of the elected sheriff. See Nichols v. Hurley, 921 F.2d 1101 (10th Cir.1990) (Secretary of Labor filed amicus curiae brief on behalf of plaintiff deputies). Specifically, in interpreting the FLSA, the Department of Labor (DOL) has rejected the view that sheriffs’ deputies are the personal staff of Sheriffs. In an opinion letter written in July 1985, the DOL specifically addressed this issue. The DOL expressed the view that deputy sheriffs preforming law enforcement activities were clearly performing functions of an established unit of local government and did not qualify as the personal staff of the elected sheriff. 6 Wage and Hour Manual (BNA) ¶ 91:404 (citing WH Adm.Op. July 12, 1985). The following year the DOL broadened its opinion. The department found that appointees (specifically, sheriffs deputies) who serve as functional employees of an office holder (the sheriff) in discharging “official” duties of the office are not personal staff. 6 Wage and Hour Manual (BNA) ¶ 91:404 (citing WH Adm. Op. March 10,1986). b. Relevant case law The case law is not as one-sided in its support that sheriffs’ deputies are not the personal staff of the elected sheriff. Courts, however, have consistently recognized that the personal staff exception to the FLSA should be construed narrowly against the employer. See, e.g., Reich v. State of New York, 3 F.3d 581, 586 (2d Cir.1993), cert. denied, 510 U.S. 1163, 114 S.Ct. 1187, 127 L.Ed.2d 537 (1994); Nichols, 921 F.2d at 1103. The personal staff exception is a question of federal law, with state law only relevant as it defines the plaintiffs position and duties. Calderon v. Martin County, 639 F.2d 271, 273 (5th Cir.1981). This Court’s research and the parties’ briefs indicate that only the Fourth Circuit and the Tenth Circuit have considered whether sheriffs’ deputies fall within the personal staff exception of the FLSA. Both Circuits have refused to state as a matter of law that sheriffs’ deputies are always part of a sheriffs’ personal staff or are never part of a sheriffs’ personal staff. These courts agree that one must look to the “nature and circumstances” of each employment relation to determine whether the personal staff exception applies. The Circuits, however, are otherwise split in their approach to the issue. In a series of three cases the Fourth Circuit considered whether sheriffs department employees were the personal staff of the sheriff. The first case involved a female deputy sheriff who worked as a dispatcher-matron, then a records clerk, and then a secretary. She sought and was denied positions as a road deputy and a detective, and later was fired. Curl v. Reavis, 740 F.2d 1323, 1325 (4th Cir.1984). The plaintiff brought suit for sex discrimination under Title VII, and the court, after a trial to the bench, entered judgment in her favor. The defendants appealed, asserting that the plaintiff was not an “employee” under Title VII. Id. at 1324-25. The court began its analysis by noting that the only exception to the definition of an employee at issue was that for personal staff “[sjince a North Carolina deputy sheriff is not an elected official, and there is no evidence whatsoever that plaintiff was ever called upon to make policy for the Sheriffs Department or to act as an immediate adviser to the Sheriff with respect to his constitutional or legal powers.” Id. at 1328. The court continued: Whether Curl is to be treated as a member of the Sheriffs personal staff requires a careful examination of the nature and circumstances of her role in the Sheriffs Department. Though Curl, like all deputies, served at the pleasure of the Sheriff, her position was created and her compensation paid by the county pursuant to state law. There is no evidence that her working relationship with Sheriff Reavis was “highly intimate and sensitive.” She was not under his personal direction, and she brought her promotion requests before his subordinate. Curl did not occupy a high position within the chain of command, and her duties were primarily clerical and secretarial.... We cannot conclude that Curl was a member of the Sheriffs personal staff.... Id. (citations omitted). In the next two cases, the Fourth Circuit mixed into its analysis of the personal staff exception elements from two of the other exceptions: people appointed by an officeholder to serve on a policymaking level and immediate advisers to an officeholder with respect to the constitutional or legal powers of his office. In Brewster v. Barnes, the plaintiff brought claims under Title VII and the Equal Pay Act, as well as 42 U.S.C. § 1983. The district court ruled in favor of defendants under Title VII on the ground that they were not guilty of intentional discrimination, and ruled that the plaintiff could not recover under the Equal Pay Act because she was a member of the sheriffs personal staff and, therefore, not an “employee” under that act. Brewster, 788 F.2d at 989. The Fourth Circuit noted that statutorily, there was no significant difference between the relationship of sheriffs and deputies in Brewster and in Curl: the sheriff had the authority to hire, fire, and supervise his deputies; the deputies could “discharge any of the official duties of their principal;” and state courts had described the deputies as “one and the same as the sheriff.” Id. at 990 (citations omitted). The court evaluated the application of the personal staff exception as follows: From 1975 to 1979 Brewster ... did not occupy an intimate or high level position in the Sheriffs Department, nor did she make policy decisions. Rather, she performed the same functions as the other correctional officers at the jail: handling, transporting, and supervising prisoners; searching visitors; and various jobs such as recordkeeping, cooking, and cleaning. In short, under the rationale of Curl, Brewster was not a member of [the Sheriffs] personal staff. Id. at 990-91. In United States v. Gregory, 818 F.2d 1114 (4th Cir.), cert. denied, 484 U.S. 847, 108 S.Ct. 143, 98 L.Ed.2d 99 (1987), the government brought suit against the Sheriff of Patrick County, Virginia for violating Title VII by failing to employ women in certain deputy positions. “Patrick County is a sparsely populated, rural county, with a relatively large land area. The sheriff is elected, and his department consist of twenty-three individuals, including ‘sworn officers’ or deputies.” Id. at 1115. The eighteen deputies in the department were divided into seven different classes: supervisor (2); investigator (2); road deputy (4); court security officer (2); correctional officer (5); process server (1); and “clerk-steno” matron (2). Id. The district court had concluded that the road deputy position was a personal staff position but that the correctional officer and courtroom security officer positions were not. Id. at 1116. The basis for the district court’s ruling with respect to the road deputy position was that a road deputy “is the ‘alterego and personification of the .sheriff in the geographical area to which he is assigned.... They are the eyes and ears of the sheriff, not only for matters which fall within their official sphere but also as to matters political.’” Id. In evaluating the district court’s conclusion with respect to road deputies, the Fourth Circuit looked at its earlier precedent in Curl and Brewster. Of its decision in Curl, the court said: The opinion lists many reasons for the finding [that the plaintiff was not on the personal staff]: (1) the plaintiff was not called upon to make policy for the sheriffs department, nor to act as an immediate advisor to the sheriff with respect to his constitutional or legal powers; (2) Congress intended for the exemption to be construed narrowly, to apply only to those individuals who are in highly intimate and sensitive positions of responsibility on the staff of the elected official; (3) the plaintiffs position was created and compensated by the county pursuant, to state law; (4) her working relationship with the sheriff was never ‘highly intimate or sensitive;’ (5) she did not occupy a high position within the chain of command, and her duties were primarily clerical and secretarial; and (6) she was not under the sheriffs direction. Id. at 1117. The court also commented on its decision in Brewster, saying: We concluded that the close relationship which had formerly existed had ended once the plaintiff assumed the position at the jail. Thus, because the plaintiff did not occupy an intimate or high level position, and because she did not render advice in formulating policy decisions, she was not a member of the sheriffs personal staff. Id. at 1117. Applying the rationale of these two cases to the one before it, the Fourth Circuit concluded: [W]e cannot say as a matter of law that the deputy position falls within the personal staff exception to the coverage of Title VII. The road deputies in Patrick County function primarily as typical policeman [sic] who administer the laws and ‘policies’ of their supervisors. There is no evidence that the road deputies are called upon to render advice to the sheriff respecting his policy decisions or the proper exercise of his powers. The road deputy position in Patrick County is not one high within the chain of command, nor do these road deputies occupy a highly intimate and sensitive status vis-avis the sheriff. The fact that Patrick County is rural and concomitantly employs a rather small police staff does not by itself render the position of road deputy within the sheriffs personal staff. Although we could assume that, with a small deputy contingent, the relationship between the deputies and the sheriff might be close, the appellee has simply failed to show that that closeness has engendered a highly intimate relationship which influences the making of policy. Id. Consequently, the Fourth Circuit has developed a test which focuses on the closeness and the intimacy of the relationship between the elected official and the employee in determining whether that person is a member of the official’s personal staff. The Fourth Circuit’s test has also blurred the lines between the personal staff exception of § 203(e)(2)(C)(ii)(II) and the exceptions listed in § 203(e)(2)(c)(ii)(III) and (IV). Because of this, the Tenth Circuit has developed a different approach to determining whether deputies are the personal staff of a sheriff. In Nichols a split panel of the Tenth Circuit declined to adopt the Fourth Circuit’s reasoning in Gregory. Nichols, 921 F.2d at 1108. The Tenth Circuit concluded that the Fourth Circuit had considered factors that concern two other exceptions to the definition of employee; not the personal staff exception. The Court noted: With respect to employees of states or political subdivisions thereof, four separate categories of people are not covered by Title VII or the FLSA: (1) people who are elected officials; (2) people who are chosen by an elected official to be on his personal staff; (3) people who are appointed by an elected official on a policymaking level; and (4) people who are immediate advisers to an elected official regarding his constitutional or legal powers. Thus, a person can be a member of an elected official’s personal staff and not be either a policymaker or an immediate adviser with respect to the constitutional and legal powers of the elected official. Id. Accordingly, the Tenth Circuit declined to consider the facts that the deputies did not participate in policy making decisions with the sheriff nor were hired as immediate advisers regarding the sheriffs constitutional or legal powers. Instead, the Tenth Circuit focused on a list of factors which excluded policy making and advice giving. The Tenth Circuit concluded that the nonexhaustive list of factors to be considered in evaluating the “personal staff’ exception was well articulated in Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th Cir.1985). In Teneyuca, the plaintiff, an assistant criminal district attorney, brought a Title VII claim against the Bex-ar County Criminal District Attorney. In determining whether the plaintiff was an employee as defined by Title VII, the court considered whether the plaintiff was a member of the district attorney’s personal staff. The personal staff exception listed in Title VII is the same as the one listed in the FLSA. The Fifth Circuit applied the following six factors in determining whether the plaintiff was a member of the defendant’s personal staff: (1) whether the elected official has plenary powers of appointment and removal, (2) whether the person in the position at issue is personally accountable to only the elected official, (3) whether the person in the position at issue represents the elected official in the eyes of the public, (4) whether the elected official exercises a considerable amount of control over the position, (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 person filling the position.' Teneyuca, 767 F.2d at 151. This Court agrees with the Tenth Circuit and the Fifth Circuit that one should consider the Teneyuca factors in determining whether plaintiffs are part of an elected official’s personal staff. It is inappropriate to consider whether a sheriffs employees make policy decisions or advise him or her on constitutional or legal powers. This Court, however, places a greater emphasis upon the sixth Teneyuca factor then the Tenth Circuit did in Nichols. Specifically, this Court rejects the assumption that, as a matter of law, “one can assume a certain level of intimacy from the nature of a deputy sheriffs role in a small county.” Nichols, 921 F.2d at 1111. Other courts have agreed that the last factor is the most important. Johnson v. Board of County Comm’rs for County of Fremont, 859 F.Supp. 438, 443 (D.Colo.1994). In Anderson v. City of Albuquerque, the court held the personal staff exception required an “immediate and personal relationship.” Anderson, 690 F.2d 796, 801 (10th Cir.1982); Gregory, 818 F.2d at 1117 (finding that closeness must engender a “highly intimate relationship”); Curl, 740 F.2d at 1328 (noting that position was funded by the county and finding no evidence plaintiff had a highly sensitive or intimate relationship with sheriff); but see Nichols, 921 F.2d at 1111 (assuming employment intimacy from nature of deputy sheriffs role in small county). In James Owens v. Rush, 654 F.2d 1370, 1375 (10th Cir.1981), the court observed that Congress wanted the exception “to apply only to those individuals who are in highly intimate and sensitive positions of responsibility on the staff of the elected official.” The court found an undersheriff, second in authority to the sheriff, to be a member of the sheriffs personal staff. The undersheriff admitted he had “a very close working relationship with the sheriff.” Id. at 1376. The “nature and circumstances” of the employment relationship determine whether the personal staff exception applies. Id. The Commission fails to show how Plaintiffs, as dispatchers, deputy sheriffs, and jailers had intimate employment relationships with Mease or Hill. It is undeniable that the Sheriff exercised considerable control over the Plaintiffs, but the mere fact that the Sheriff had the exclusive power to hire and fire Plaintiffs does not establish the necessary intimate and personal employment relationship which must exist between an elected official and his employees for them to be considered personal staff. Johnson, 859 F.Supp. at 448. Sheriffs Mease and Hill did not personally supervise the activities of these Plaintiff employees. Hill’s Chief Deputy, Wayne Neeley, attends to the day to day supervision of the office. Hill, prior to being elected Sheriff, was the Chief Deputy for Mease and attended to these same duties. In the Sheriffs office it was the Chief Deputy’s responsibility to schedule the employees work shifts, to take their grievances, and to make adjustments to their schedules. Plaintiffs also direct their requests for overtime, comp, time, and time off to the Chief Deputy. Sheriffs Mease and Hill never scheduled meetings with their deputies to discuss official office policy or practice. The Plaintiffs were not part of the Sheriffs’ command staffs. Nor did the Sheriffs ever request that any of the Plaintiffs represent them before the County Commission or in any other official capacity. With the exception of Plaintiffs Janie Beck, Stults, Heinzl, and Heagerty, who have all held minor supervisory positions, all of the Plaintiffs are located at that bottom the Sheriffs Department chain of command. All of the Plaintiffs testified that if a question arose regarding the performance of their duties they consulted the Chief Deputy and not the Sheriff. With the exception, of Bill Heinz, who works in Internal Affairs, none of the Plaintiffs saw or were exposed to confidential materials about the setting of office policies or discipline. Heinz may see discipline complaints and occasionally performs an investigation on these complaints, but he does not recommend or take part in decisions concerning the discipline of other officers. While Mease was Sheriff, many of the Plaintiffs who worked for the Sheriffs department during that time would not see or have contact with him for weeks at a time. Furthermore, there is no indication that Plaintiffs represented either Mease or Hill in the eyes of the public. Finally, the Court concludes that the actual intimacy of the working relationship between the Stone County Sheriff and the Plaintiffs is insufficient to qualify these Plaintiffs as the personal staff of the Sheriff. Accordingly, Plaintiffs do not fall within the personal staff exception of § 20S(e)(2)(c)(ii)(II) and they qualify as “employees” under the FLSA. B. Overtime Issues Under the FLSA Since the Court has determined that the Plaintiffs are covered by the FLSA, it must determine how the Act affects the employment relationship between the Plaintiffs and Defendants. With the passage of the FLSA in 1938, Congress established a comprehensive remedial scheme requiring a minimum wage and limiting the maximum number of hours worked, absent payment of an overtime wage for all hours worked in excess of the specified maximum number. Lamon v. City of Shawnee, Kansas, 972 F.2d 1145, 1149 (10th Cir.1992), cert. denied, 507 U.S. 972, 113 S.Ct. 1414, 122 L.Ed.2