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March 29, 2007
Supreme Court to Hear FLSA Case on Home Care Aides
Thanks to Peggie Smith (Iowa) for reminding us that Supreme Court oral arguments in the case of Long Island Care at Home & Osborne v.
Coke are scheduled for April 16th. The case involves whether home care aide workers employed by third-party agencies should be considered exempt from the FLSA's minimum wage and overtime requirements. The Second Circuit in this case overturned Labor Department regulations that exempted
such home care aides.
Peggie, who has written much in the home health aide area, wrote an amici brief on behalf of a group of law professors and historians in support of the worker. The brief argues that when the FLSA was amended in 1974, Congress understood "domestic service employment," as that phrase is used in the Act’s companionship exemption, to refer to an individual and personal employment relationship, not a third-party relationship that involves an agency.
Peggie also points out that the New York Times ran a nice overview article on the case earlier this week.
Kudos to Peggie for her great work on this case!
Update: Ross Runkel predicts that the respondent Coke will lose:
This case turns on 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 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., 323 U.S. 134 (1944), instead, then Coke should win because DOL's explanation of the regulation is not persuasive at all.
PS
March 29, 2007 in Labor Law | Permalink
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Today, the SCOTUS hears argument in Long Island Care at Home v. Coke, No. 06-593. Although the legal issue is one of administrative law, Coke implicates the Department of Labor's Fair Labor Standards Act exemption for in-home health care services... [Read More]
Tracked on Apr 16, 2007 11:19:07 AM
Comments
Ross:
You've missed the point of the 2d Circuit decision. It was not interested in the labels per se. It was trying to follow Mead (2001). Mead instructed lower courts that certain kinds of regs do not get Chevron deference. The DOL specifically promulgated a reg that made absolutely clear that 552.109(a) was not issued pursuant to the rule-making authority given to it by Congress. That is determinative under Mead. That the conflicting reg itself (552.3) was promulgated under that rule-making authority is critical because it (rather than 552.109) is entitled to Chevron deference.
I'd also suggest that you take a more careful look at the so-called "notice-and-comment procedure" that preceded the issuance of 552.109. The DOL did not put the current reg out for notice and comment. They put out its opposite, one consistent with 552.3. So it is hard to accept the bootstrapping argument to give 552.109 deference on account of the notice-and-comment procedure.
Posted by: Ethan Leib | Apr 19, 2007 4:21:40 PM
Thank you for looking into this "Slave Labor" situation. You should see what is happening in California. The governor gave 32.6 million dollars to welfare departments throughout California and then passed legislation to do what they call Quality Assurance. It's a real "Witch Hunt" to intimidate home care workers, and hours the recipient they work for, are getting their hours of need cut. They have what they call "Time for Task" and it's next to impossible to get all needs of the recipient done in the time frames they have imposed on the workers. I'm a 79 year old widow caring for my 56 year old severely disabled son, in my home, with the help of 2 attendants. I'm his conservator and I do most of the unpaid In Home Supportive Services allowed time. We recently had to join a union due to legislation AB1682,that required it,so the union could negotiate better wages. We are still fighting for a livable wage considering the high costs of everything in California. This legislation and the Quality Assurance legislation has created nothing more than a huge bureaucracy that grows daily with investigators going to the homes and threatening FRAUD. There is nowhere recipients or their providers can go with their complaints. Home care workers have been "SLAVES" long enough. Can you help us here in California?
Posted by: Madelyn Amaral | Jun 10, 2007 12:05:50 PM
