; (ii) includes any person who acts, directly or indirectly, in the interest of such an employer to any of the employees (described in paragraph (9)(A)) of such employer; (iii) includes any successor in interest of such an employer; and (iv) includes an agency described in subparagraph (A)(iii) of section 101(4) of the Family and Medical Leave Act of 1993 ( 29 U.S.C. 2611(4) ), to which subparagraph (B) of such section shall apply. (B) Rule For purposes of determining the number of employees who work for a person described in subparagraph (A)(i), all employees (described in paragraph (9)(A)) performing work for compensation on a full-time, part-time, or temporary basis shall be counted, except that if the number of such employees who perform work for such a person for compensation fluctuates, the number may be determined for a calendar year based upon the average number of such employees who performed work for the person for compensation during the preceding calendar year. (C) Person In this paragraph, the term person has the meaning given the term in section 3 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203 ). (7) Domestic partner The term domestic partner means the individual recognized as being in a relationship with an employee under any domestic partnership, civil union, or similar law of the State or political subdivision of a State in which the employee resides. (8) Employ The term employ has the meaning given the term in section 3 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203 ). (9) Employee The term employee means an individual who is— (A) an employee, as defined in section 3(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 203(e) ), who is not described in any of subparagraphs (B) through (G); (B) a State employee described in section 304(a) of the Government Employee Rights Act of 1991 (42 U.S.C. 2000e–16c(a)); (C) a covered employee, as defined in section 101 of the Congressional Accountability Act of 1995 ( 2 U.S.C. 1301 ), other than an applicant for employment