Pike County State's Attorney stating that his office has not
employed twenty or more employees at any time during the years
Plaintiff does not contest Defendants' claim regarding the
number of employees in the Pike County State's Attorney's
Office. Rather, Plaintiff asserts that the State's Attorney is
a county official and therefore a co-employer with the county.
Plaintiff alleges that she was paid by Pike County and covered
under the county retirement benefit plan. Further, Plaintiff
states that she was told before she was hired that the County
Board had to approve her hiring. Consequently, Plaintiff argues
the ADEA's definition of an "employer" is met because the
county employs more than twenty employees.
In opposition to the Defendants' suggestion that Pike County
is not a proper party, Plaintiff argues that the State's
Attorney's Office acted as an agent of Pike County when it
The key issue before the Court is whether Pike County and the
Pike County State's Attorney's office should be considered a
single employer for the purpose of determining whether the
ADEA's twenty employee jurisdictional requirement has been met.
The State's Attorney for a county has been held to be an
officer of that county and not of the State. See Santiago v.
Daley, 726 F. Supp. 198, 199 (N.D.Ill.1989). This, however, is
insufficient to make Pike County and the Pike County State's
Attorney's office a single employer.
Most cases discussing whether two employers should be
considered as a single employer for ADEA purposes have dealt
with corporations, but the same considerations are pertinent
when considering government entities. "[T]he appropriate
standard for determining whether nominally separate [employers]
are to be considered a single employer is whether they comprise
an integrated enterprise." Brown-Riske v. Household Int'l,
Inc., 1990 WL 37657, 1990 U.S. Dist. LEXIS 3176 (N.D.Ill.1990).
Criteria to be considered in determining whether two entities
should be considered a single employer include (1) the
interrelation of operations, including such things as common
offices, common record keeping, common bank accounts and common
equipment; (2) common management, directors and boards; (3)
centralized control of labor relations and personnel; and (4)
common ownership or financial control. See Kelly v. Sharon
Sales, Inc., 1987 WL 11633, 1987 U.S. Dist. LEXIS 4273
(N.D.Ill.1987); Skriba v. Capitol Federal Savings and Loan
Ass'n, No. 80 C 4083, slip op. (N.D.Ill. January 20, 1981).
In addition to these factors, when the employers in question
are government entities, additional criteria come into play. In
Orenic v. Illinois State Labor Relations Bd., 127 Ill.2d 453,
130 Ill.Dec. 455, 537 N.E.2d 784 (1989), constitutional
separation of powers concerns were one factor that led the
Illinois Supreme Court to hold that the Illinois circuit courts
could not be co-employers with the counties in which they sat,
even though the counties set and paid the salaries of
Plaintiff relies heavily on County of Kane v. Illinois State
Labor Relations Bd., 165 Ill.App.3d 614, 116 Ill.Dec. 359,
518 N.E.2d 1339 (1988), where it was held that the Kane County
Sheriff's office and Kane County were co-employers even though
Sheriff had control over internal operations, since he had to
operate within the county board's budgetary authority. The
basis for this decision was that "the County is a necessary
party to the creation of an effective bargaining relationship.
. . ." County of Kane, 165 Ill.App.3d at 623, 116 Ill.Dec. 359,
518 N.E.2d 1339.
This case falls somewhere between Orenic and County of Kane.
As was true of the county sheriff's office in County of Kane,
the State's Attorney's office operates within a budget approved
by the County Board, the employees are paid by the county, and
the State's Attorney has control over the internal operations
of his office.
However, while the county State's Attorney is a county
official, he is also a constitutional officer who is part of
the executive branch of state government and who exercises
executive powers. See People v. Thompson, 88 Ill.App.3d 375, 43
Ill.Dec. 600, 410 N.E.2d 600 (4th Dist.1980). This is reflected
in the fact that unlike the salary of the county sheriff, the
salary of the county state's attorney is set by the state
legislature. Ill.Const.1970, Art. VI, § 18; Ill.Rev.Stat., ch.
34, ¶ 4-2001.
More importantly, both Orenic and County of Kane focused on
who should be considered the employer for purposes of
bargaining with the union. Although it is also adopted from
labor law, the four factor single employer test herein
discussed is much more relevant to an employer determination
under the ADEA than is the determination of what constitutes an
effective bargaining unit. In an ADEA suit the focus is on
whether the personnel actions were taken for illegal reasons;
the criteria that determine who should be considered an
employer should focus on who has control over the employee.
Considering the four criteria set forth in Brown-Riske v.
Household Int'l, Inc., 1990 WL 37657, 1990 U.S. Dist. LEXIS
3176 (N.D.Ill.1990), the Court finds that:
(1) the interrelation of operations is limited to
the county writing the paychecks for the
employees of the State's Attorney's office;
(2) there is no common management between the
State's Attorney's office and other county
(3) control over labor relations and personnel was
(4) the county's financial control was limited to
making a budget appropriation for the State's
The balance of these four criteria and the traditional and
beneficial autonomy of the State's Attorney's office lead the
Court to conclude that Pike County and its State's Attorney's
office do not "comprise an integrated enterprise" and should
not be considered a single employer under the ADEA.
The limited connection between the Plaintiff and Pike County
is insufficient to make Pike County a co-employer of the
Plaintiff. Plaintiff's suggestion that Pike County and the Pike
County State's Attorney's office be considered co-employers for
the purposes of determining whether the "employer" has enough
employees to be subject to the ADEA is rejected.
Since the Pike County State's Attorney's Office does not
employ a sufficient number of employees to be considered an
"employer" under the ADEA, the question of whether Pike County
is a proper party is moot.
Ergo, Defendants' Motion to Dismiss the Complaint and/or for
Summary Judgment is ALLOWED.
Summary Judgment is entered for the Defendants.