Bonnette v. California Health and Welfare Agency

• Decision Date: 22 June 1983
• Docket Number: 82-4174,Nos. 81-4565,s. 81-4565
• Parties: 26 Wage & Hour Cas. (BN 152, 97 Lab.Cas. P 34,373 Eleanor BONNETTE, Faye Pryor, Vickie Young, Joanne R. Cardone, Wai Jin Wong Fong, Thet Poy Chung, Elizabeth Tears, Plaintiffs-Appellees, United States of America, 1 Intervenor, v. CALIFORNIA HEALTH AND WELFARE AGENCY and Mario Obledo; California Department of Health and Beverlee Myers; California Department of Social Services and Marion Woods; Solano County Public Welfare Department and Crawford Tucker; San Francisco County Department of Social Services and Edwin Sarsfield; Sacramento County Department of Social Welfare and William Redmond, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1465

704 F.2d 1465

26 Wage & Hour Cas. (BN 152, 97 Lab.Cas. P 34,373

Eleanor BONNETTE, Faye Pryor, Vickie Young, Joanne R.

Cardone, Wai Jin Wong Fong, Thet Poy Chung, Elizabeth Tears, Plaintiffs-Appellees, United States of America, ¹ Intervenor, v. CALIFORNIA HEALTH AND WELFARE AGENCY and Mario Obledo;

California Department of Health and Beverlee Myers;

California Department of Social Services and Marion Woods;

Solano County Public Welfare Department and Crawford Tucker;

San Francisco County Department of Social Services and

Edwin Sarsfield; Sacramento County Department of Social

Welfare and William Redmond, Defendants-Appellants.

Nos. 81-4565, 82-4174.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Dec. 14, 1982.

Decided May 5, 1983.

As Amended June 22, 1983.

Scott A. Fink, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for plaintiffs-appellees.

Joseph Woodward, Dept. of Labor, Washington, D.C., for intervenor.

Winifred Y. Smith, San Francisco, Cal., Thomas H. Gordinier, Fairfield, Cal., Gretchen Nicholson, San Francisco, Cal., for defendants-appellants.

Appeal from the United States District Court for the Northern District of California.

Before ANDERSON, HUG, and NORRIS, Circuit Judges.

HUG, Circuit Judge:

This action, alleging violation of the Fair Labor Standards Act's minimum wage provisions, was brought against state and county agencies by individuals who provided in-home care to disabled public assistance recipients. The district court, 525 F.Supp. 128, entered judgment for the plaintiffs-appellees. On appeal, the State and Counties argue that (1) they were not employers of the plaintiffs-appellees within the meaning of the Fair Labor Standards Act, (2) the tenth amendment exempts them from the Fair Labor Standards Act's provisions, and (3) the district court's award of attorneys' fees was an abuse of discretion. We affirm the judgment.

I BACKGROUND and FACTS

This is an action against welfare agencies of the State of California and three of its counties for back wages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Secs. 201-219. In 1974, Congress removed from the FLSA the exemption that had previously been afforded to states and their political subdivisions. Thus, under the terms of the FLSA, as amended in 1974, state employees were covered by its provisions.

California provides domestic in-home services to the aged, the blind, and the disabled through programs that were initiated by and funded in part by the federal government. Since 1974, these services have been provided under California's In-Home Supportive Services plan. Cal.Welf. & Inst.Code Secs. 12300-12308 (West 1980). These services enable aged, blind, and disabled public assistance recipients to remain in their own homes, thereby benefiting the recipients and reducing the need for costly institutional care.

The plaintiffs-appellees ("chore workers") were employed to provide these services to disabled public assistance recipients ("recipients") between May 1974 and October 1976. The chore workers performed a wide variety of domestic tasks for recipients who were unable to perform these tasks themselves. See Cal.Welf. & Inst.Code Sec. 12300 (West Supp.1982).

The chore worker program is funded in large part by the federal government pursuant to Title XX of the Social Security Act. During the period at issue, Title XX funds were available for 75% of the program's cost. In order to qualify for the federal funds, the state had to comply with various federal requirements and regulations, and had to submit and receive approval of its plan for in-home services. See 45 C.F.R. Secs. 1395.2-1396.93 (1980).

The California Legislature set eligibility standards and methods by which counties could provide in-home care. E.g., Cal.Welf. & Inst.Code Secs. 12302, 12304 (West 1980). The counties were responsible for the day-to-day operation of the programs. The legislature specified three methods by which the counties could deliver chore worker services: the counties could hire chore workers directly, contract with agencies or individuals for such services, or make direct payment to the recipients for the "purchase" of chore worker services. Cal.Welf. & Inst.Code Sec. 12302 (West 1980). All of the counties involved in this action chose the third method of delivery--the recipients Under this method of delivery, a county social worker would determine the recipient's financial eligibility and need for chore worker services. After consultation with the recipient and others, using a standard county form, the social worker would determine the tasks to be performed for the recipient by the chore worker and the hours per week required to perform the tasks.

"purchased" chore worker services with money provided by the county.

The recipient was responsible for hiring and firing the chore worker. Recipients were encouraged to select relatives or friends as chore workers. If the recipient had no one in mind, the county social worker would provide a list of potential chore workers. In some instances, where the recipient was unable or unwilling to do so, the social worker would hire the chore worker.

The recipient was responsible for the day-to-day supervision of the chore worker. The social worker would intervene if a problem arose which the recipient could not handle. Although the recipient was expected to fire the chore worker if it became necessary, in some instances this duty was performed by the social worker.

The chore workers were paid by the hour, but with a ceiling based on the recipient's maximum grant. In some cases, the total number of hours approved for the chore worker exceeded the capacity of the grant to pay out at the prevailing wage. Verification of the hours worked was required by the counties before payment was made. The counties would not approve payment for hours worked in excess of those authorized.

At different times the counties used various methods of payment, including two-party checks payable to the recipient and chore worker, checks payable directly to the recipient with the understanding that the recipient would pay the chore worker, and checks payable directly to the chore worker.

During the period at issue here, May 1974 to October 1976, the hourly rate of pay was established by the county. The recipient was not permitted to pay a higher rate than allowed by the county. The chore workers were sometimes paid at a rate below the federal minimum wage either because the county hourly rate was below the minimum wage or because the grants were not large enough to pay the chore workers the minimum wage for the hours worked. ²

Eight chore workers brought this action alleging that they had been paid less than the federal minimum wage in violation of the FLSA. The State and Counties denied that they employed the chore workers within the meaning of the FLSA, and in the alternative argued that the tenth amendment exempted them from the minimum wage requirements of the FLSA.

After a trial, and on the basis of the parties' stipulation of facts, the district court ruled for the chore workers and awarded $18,455 in damages and $100,000 for attorneys' fees. The State and Counties appeal.

II

"EMPLOYER" UNDER FLSA

In order for the minimum wage provisions of the FLSA to apply, the appellants must be "employers" of the chore workers within the meaning of the FLSA. The district court found that the appellants were the chore workers' employers. The appellants argue that this was error.

A. Standard of Review

Citing Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748 (9th Cir.1979), the chore workers argue that the district court's determination that the appellants are "employers" under the FLSA should be reviewed as a question of fact. In Real, we reversed the summary judgment because the record demonstrated "the existence of genuine factual issues concerning whether [defendant was] an 'employer' of the appellants, within the meaning of the FLSA." Id. at 755. The chore workers apparently The Supreme Court has referred to a similar question under the NLRA as "essentially a factual issue," but that was in the context of deferring to a determination by the NLRB, an administrative agency with a particular expertise, unlike the district courts. Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 898, 11 L.Ed.2d 849 (1964); see also NLRB v. Hearst Publications, Inc., 322 U.S. 111, 130-31, 64 S.Ct. 851, 860-861, 88 L.Ed. 1170 (1944). In FLSA cases, although it has not explicitly discussed the standard of review, the Supreme Court appears to treat the ultimate question of whether a party is an "employer" as a legal issue. See Goldberg v. Whitaker House Cooperative, Inc., 366 U.S. 28, 81 S.Ct. 933, 6 L.Ed.2d 100 (1961); Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947); see also Shultz v. Hinojosa, 432 F.2d 259, 264 (5th Cir.1970).

                interpret this as holding that the "employer" determination is a finding of fact.  Read in context, however, it is clear that the "genuine factual issues" were subsidiary factual questions and not the ultimate question of whether the defendant was an "employer."    See Id
                

The Eighth Circuit treats this determination as a legal one. Wirtz v. Barnes Grocer Co., 398 F.2d 718, 722 (8th Cir.1968). The Fifth Circuit also treats this as a legal question, although some earlier cases from that circuit considered it as a factual question. Compare Donovan v. Tehco, Inc., 642 F.2d 141, 143 n. 4 (5th Cir.1981); and Shultz v. Hinojosa, 432 F.2d at 264; with Hodgson v. Griffin and Brand of McAllen, Inc., 471 F.2d 235, 238 (5th Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973); and Wirtz v. Lone Star Steel Co., 405 F.2d 668, 669 (5th Cir.1968).

We agree with the Eighth Circuit and the most recent Fifth Circuit precedent. Although the underlying facts are reviewed under the clearly erroneous standard, the legal effect of those...