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FLSA at the Supreme Court
March 30, 2007 by Ross Runkel at LawMemo
The Supreme Court will decide the validity of a DOL regulation exempting certain home care workers from the Fair Labor Standards Act (FLSA).
Long Island Care at Home Ltd v. Coke will be argued at the US Supreme Court April 16, 2007. [Details]
Employee: Evelyn Coke. Her job was to provide "companionship services" for individuals who were not able to care for themselves. She worked in private homes.
Employer: Long Island Care at Home Ltd, which hires employees like Coke and assigns them to work in private homes.
Statute: The FLSA has an exemption for employees engaged in "companionship services." If Coke had been paid by the families, then she clearly would not get FLSA coverage.
Regulation adopted by Department of Labor: A 30-year-old regulation says that the statutory exemption applies even if Coke is paid by an outside agency.
2nd Circuit decision: The circuit court held that DOL's regulation cannot be enforced because it was not entitled to deference under the rules of Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), or Skidmore v. Swift & Co., 323 U.S. 134 (1944).
My prediction: Coke will lose; the DOL regulation will be enforced.
The legal issue is whether the courts must defer to the DOL's regulation. The 2nd Circuit held that the 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.
I think that's legally wrong. The statute left a gap, DOL had authority to fill the gap, and DOL filled it after notice-and-hearing procedures. The 2nd Circuit made a big deal out of where this regulation was positioned - under the heading "Interpretation" - but that misses the point. The real question is whether DOL intended the regulation to govern the conduct of private parties as opposed to being merely guidance for its own internal purposes. This was not a mere guideline for DOL employees; it was intended to regulate private conduct. Therefore, courts must defer to DOL under Chevron even if the regulation is inconsistent with other DOL regulations (which it is).
If I'm wrong on Chevron deference and the Court applies Skidmore v. Swift & Co. instead, then Coke should win because DOL's explanation of the regulation is not persuasive at all.
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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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