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Supreme Court takes on FLSA case
January 06, 2007 by Ross Runkel at LawMemo
Must a court defer to Department of Labor regulations interpreting the Fair Labor Standards Act (FLSA) as excluding domestic employees employed by a home care agency?
This is the second time the Supreme Court has taken a look at this case.
The case: Long Island Care at Home Ltd v. Coke [Details, decisions, etc.] Certiorari granted January 5, 2007.
Coke sued her employer under the Fair Labor Standards Act (FLSA) claiming entitlement to minimum wage and overtime. The trial court granted the employer's motion for judgment on the pleadings. The 2nd Circuit reversed in part; the US Supreme Court remanded for reconsideration in light of Department of Labor's December 2005 Wage and Hour Advisory Memorandum; the 2nd Circuit adhered to its original decision. The US Supreme Court granted certiorari to review the 10th Circuit decision.
FLSA Section 213(a)(15) exempts employees engaged in "babysitting services" and "companionship services." The exemption applies to "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary [of Labor]) ...." Department of Labor (DOL) regulation 29 CFR Section 552.109(a) applies the exemption to "[e]mployees who are engaged in providing companionship services, as defined in Section 552.6, and who are employed by an employer or agency other than the family or household using their services."
The 2nd Circuit held that this regulation is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), because it is an interpretive rather than a legislative regulation. The 2nd Circuit also held that this regulation is not entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), because it was inconsistent with Congress' purpose and with other regulations and with previous DOL positions, and insufficiently explained by DOL.
The formal Questions Presented in the Supreme Court are:
1. Whether the Second Circuit erred in refusing to give deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), to a thirty-year-old Department of Labor regulation - a regulation that has twice been upheld by the Tenth Circuit - on the ground that, even though it was promulgated under express grants of legislative authority and after full notice-and-comment rulemaking, the regulation was contained in a subpart headed “Interpretations.”
2. Whether, in holding that a longstanding Department of Labor regulation was not persuasive and thus undeserving of any deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), the Second Circuit erred by failing to address the governing provisions of the Fair Labor Standards Act and by declining to give any weight to the Department’s interpretation of its own regulations.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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