There are many exemptions under the Fair Labor Standards Act and an interesting one, one that does not get a lot of attention or “play” is the domestic worker exemption.  This exemption applies to someone who works for someone, taking care of children (e.g., a nanny)  or performing domestic chores, such as cooking and cleaning.  A recent case, however, shows that there are wrinkles even in this straightforward exemption.  The case is entitled Blanco v. Samuel and issued from the Eleventh Circuit Court of Appeals.

The appellate court reversed the lower court which had held the worker was exempt.  The employee was a nanny and housekeeper for the Employer and worked close to eighty hours per week.  The employer paid her straight time but no overtime, relying upon the domestic exemption under the FLSA.  The lower court sided with the defendants and dismissed the case on a summary judgment motion.

For an employee to fit within this exemption, she must: 1) work in domestic service; 2) work in a household; and 3) reside in the household.  The only disputed issue was the third one; the lower court found the employee did reside in the house.  The Eleventh Circuit disagreed.  The Court noted that the employee was a night-shift worker who thought of her nanny work as her employment.  She had her own home where she went after the shift, did not have a key, and did not spend any of her leisure time at her employer’s dwelling.  She was also on duty the entirety of her seventy-nine-hour work week and had no “personal” bed in the house.  She shared a bed (not at the same time) with other nannies employed by the employer which the appellate Court observed was “hardly a typical arrangement at one’s own residence.”

The Court stated that “no 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 Court also rejected reliance on the DOL regulation finding that it was not entitled to any deference; the statute was clear, and the language relied upon by the lower court was not in the regulation but rather in the preamble to the regulation.

The Takeaway

This is a quirky case but there are more important global lessons.  First, although FLSA regulations are very important and informative, they are not the actual law.  The actual statute always takes precedence over regulations, which are promulgated by the DOL, not by Congress.  Further, not everything in a regulation, i.e., the preamble, is a part of the regulation.  This may be a quirky case but the results to this employer are anything but quirky.

They are expensive…