Someone who works in the home of their employer as a nanny or in another domestic service role is exempt from the Fair Labor Standards Act (FLSA) wage requirements, right? Not according to Blanco v. Samuel, a recent 11th Circuit opinion that reversed the district court’s ruling that a live-in employee was exempt. The opinion provides insight into the 11th Circuit’s plain language approach to evaluating FLSA exemptions, particularly for the domestic service exemption.
Background
Maria Blanco worked for three years as a nanny and housekeeper for the Parents (they have real names, but the opinion just referred to them as “Parents” so we will stick with that). For much of that time she worked 79 hours per week, with one 23-hour shift and four 14-hour overnight shifts. The Parents paid Blanco for all 79 hours but did not pay her the time and half rate for the hours over 40. The Parents asserted that Blanco fell under the live-in service exemption to the FLSA.
Both Blanco and the Parents filed for summary judgment. The district court agreed with the Parents that Blanco fell within the exemption as she resided in the Parents’ house, granting summary judgment to the defendants. The court denied Blanco’s motion for summary judgment, and she appealed.
The Live-In Service Exemption
The FLSA exempts “any employee who is employed in domestic service in a household and who resides in such household”. The live-in service exemption applies where the employee:
- Works in domestic service,
- Works in a household, and
- Resides in that household.
The only point of contention in the case was point 3 – whether Blanco resided in the household. The district court relied on a Department of Labor (DOL) regulation on what it means to “reside” in a household and found that Blanco resided in the Parents’ house. Given that conclusion, the district court found Blanco was exempt from the FLSA overtime requirements.
11th Circuit Ruling
The 11th Circuit disagreed with the district court and found that Blanco did not reside with the Parents. The court determined that Blanco was a night-shift worker who treated the Parents’ house as a place of employment, not her residence. It found the following facts significant:
- She maintained a separate abode that she would go to between her shifts.
- She did not spend any leisure time at the house.
- She did not have her own key to the residence.
- She was always on duty for the entirety of the 79 hours each week even though she would occasionally sleep in the same room while the children slept (but was still paid for those hours that she may have slept).
- The bed in which Blanco slept was not her own but was shared “tag-team” style with the other nannies that the Parents employed, which was “hardly a typical arrangement at one’s own residence.”
As the court noted, “[n]o doubt Blanco worked at the house and spent significant time there. But that alone does not mean she ‘reside[d]’ there any more than fire-fighters who sleep in fire-station dormitories while on duty reside at a fire station.”
The DOL regulation on which the district court relied suggested that an employee may “reside” on the premises if they spend “five consecutive days or nights.” The 11th Circuit found that the regulation was not entitled to any deference as the statutory text was clear enough and the language cited by the Parents about “five consecutive days or nights” was contained only in the preamble, not the regulation itself. The DOL’s amicus brief agreed with the 11th Circuit.
In a separate section of the opinion, the court found that there was an open fact question as to whether the Parents were Blanco’s employer. Apparently, the Parents hired an LLC that in turn engaged Blanco. The Parents testified that they did not control or supervise Blanco and outsourced all aspects of the nanny operation to the LLC. But the court found that there were disputed facts about the degree of control over the nannies and whether the Parents were the employer. Thus, the matter was remanded back to the district court for further proceedings.
Takeaway
If you have domestic, live-in service workers (to take care of children, elderly parents, or otherwise) take note of the exemption interpretation. Unless the domestic worker truly resides with the host family, overtime rates may apply.
