Cox v. Acme Health Services, Inc.
| Decision Date | 24 May 1995 |
| Docket Number | No. 94-3218,94-3218 |
| Parties | , 130 Lab.Cas. P 33,244, 2 Wage & Hour Cas.2d (BNA) 1249 Carol COX, Plaintiff-Appellant, v. ACME HEALTH SERVICES, INCORPORATED, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert S. Rifkin (argued), Maurer, Rifkin & Hill, Indianapolis, IN, for plaintiff-appellant.
Arthur R. Welling, Jr., Danville, IN, John C. Gilliland, II, Elizabeth A. Zink-Pearson (argued), The Law Offices of John C. Gilliland, II, Crestview Hills, KY, for defendant-appellee.
Before COFFEY and KANNE, Circuit Judges, and MORAN, District Judge. *
Carol Cox appeals from the entry of summary judgment granted in favor of her former employer, Acme Health Services, Inc. ("Acme"), a home health agency in Indianapolis, Indiana. In March of 1993, Cox, who worked for Acme from August, 1990 through February, 1993 as a home health aide, brought suit against Acme seeking unpaid overtime compensation, liquidated damages, as well as costs and attorneys' fees, claiming that Acme wrongfully refused to pay her overtime wages for the hours she worked in excess of forty per week in violation of Sec. 7(a)(1) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sec. 207(a)(1). The district court granted Acme's motion for summary judgment, finding that the services Cox performed were "companionship services" within the meaning of an exemption to the FLSA's general overtime pay requirements. See id. at Sec. 213(a)(15); 29 C.F.R. Sec. 552.6 (1994). We affirm.
The FLSA requires employers to pay domestic service employees overtime pay at the rate of one and one-half times the regular wage for hours worked in excess of forty in any single work week. 29 U.S.C. Sec. 207(a)(1). 1 However, this overtime pay requirement does not apply to an "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 the regulations of the Secretary [of Labor]." Id. at Sec. 213(a)(15). The regulation promulgated pursuant to this section defines the term "companionship services" as:
those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, That such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. The term "companionship services" does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse. While such trained personnel do not qualify as companions, this fact does not remove them from the category of covered domestic service employees when employed in or about a private household.
29 C.F.R. Sec. 552.6 (1994) (emphasis in original).
Within this federal statutory and regulatory framework, we must analyze the role of a home health aide working for a home health agency in the State of Indiana. The nature of a home health aide's training and duties lies at the crux of this dispute. See Alex v. Chicago, 29 F.3d 1235, 1237 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 665, 130 L.Ed.2d 599 (1994) (). Home health aides provide basic personal health care services to the aged or infirm who can no longer care for themselves, and, under the direction of registered nurses, assist other medical care providers, including therapists, in carrying out various assignments related to patient care:
The home health aide shall be assigned to a particular patient by a registered nurse. Written instructions for patient care shall be prepared by a registered nurse or therapist as appropriate. Duties may include the performance of simple procedures as an extension of therapy services or nursing service, personal care, ambulation and exercise, household services essential to health care at home, assistance with medications that are ordinarily self-administered, reporting changes in the patient's conditions and needs, and completing appropriate records.
410 Ind.Admin.Code Sec. 17-6-1(i).
Although home health aides work under the close supervision of registered nurses, federal and state regulations require home health aides to have successfully completed seventy-five hours of general training, 2 including sixteen hours of practical training in the following areas:
(1) Communication skills.
(2) Observation, reporting, and documentation of patient status and the care or service furnished.
(3) Reading and recording temperature, pulse, and respiration.
(4) Basic infection control procedures.
(5) Basic elements of body functioning and changes in body function that must be reported to an aide's supervisor.
(6) Maintenance of a clean, safe, and healthy environment.
(7) Recognizing emergencies and knowledge of emergency procedures.
(8) The physical, emotional, and developmental needs of and ways to work with the populations served by the home health agency, including the need for respect for the patient, the patient's privacy, and the patient's property.
(9) Appropriate and safe techniques in personal hygiene and grooming that include the following:
(A) Bed bath, sponge, tub, or shower bath.
(B) Shampoo, sink, tub, or bed.
(C) Nail and skin care.
(D) Oral hygiene.
(E) Toileting and elimination.
(10) Safe transfer techniques and ambulation.
(11) Normal range of motion and positioning.
(12) Adequate nutrition and food intake.
(13) Any other task that the home health agency may choose to have the home health aide perform.
410 Ind.Admin.Code Sec. 17-6-1(e); 42 C.F.R. Sec. 484.36(a) (1994). Home health aides must also receive at least twelve hours of in-service training each year. 410 Ind.Admin.Code Sec. 17-6-1(h)(1)(B); 42 C.F.R. Sec. 484.36. Federal and state regulations require a registered nurse to conduct home health aide training and testing to ensure each home health aide's competency in the specified skill areas at least once a year. 410 Ind.Admin.Code Sec. 17-6-1(g); 42 C.F.R. Sec. 484.36(a)(2)(ii) (1994); see also 410 Ind.Admin.Code Sec. 17-6-1(h) (). 3
Carol Cox was employed by Acme as a certified nursing assistant ("CNA") and home health aide from August, 1990, through February, 1993, when she voluntarily terminated her employment for reasons undisclosed in the record. In 1985, Cox trained for and was certified as a CNA by the State of Indiana. For this certification, Cox completed a total of 105 hours of classroom instruction and practical training. 4 Prior to her employment with Acme, she had also fulfilled the formal state mandated training for home health aides and had passed the competency evaluations in each required skill area. 5 Cox worked for approximately two years as a CNA and home health aide for other Indiana home health agencies prior to her employment with Acme.
At the beginning of her employment with Acme, Cox worked exclusively in nursing home facilities as a CNA. Later, at her request, Cox was assigned to private home duty as a home health aide. At each of her patients' homes, and as required by state and federal regulations, Cox worked under the direction of a registered nurse and performed duties which all fell within the range of duties set forth in Acme's formal job description for home health aides, which included, among other things, performing patient care as assigned by a registered nurse or therapist, assisting the patient with personal care, assisting the patient with rehabilitative activities, assisting the patient with taking self-administered medications, and assisting the registered nurse with specific assigned procedures, including the taking of vital signs and skin care. 6
Between August, 1990, and December, 1992, Cox received an hourly wage ranging from $7.00 to $8.50 per hour, depending upon the assignment. Although she was regularly employed in excess of forty hours per work week, she did not receive overtime compensation. On February 26 and 27, 1993, Cox failed to report to work and on February 29, 1993, Cox called Acme's offices and stated that she was resigning from her position.
Previously, in 1989, an auditor from the Wage and Hour Division of the Department of Labor informed Acme that home health aides fell within the "companionship services" exemption to the FLSA's general overtime pay requirements. During a subsequent audit in December, 1992, a representative from the Wage and Hour Division advised Acme's president that the rules pertaining to the "companionship services" exemption under the FLSA had changed and recommended payment of overtime compensation (at the rate of one and one-half times the regular wage) to home health aides. Based on the advice of the Wage and Hour Division auditor, Acme began compensating home health aides for overtime in December, 1992.
On March 18, 1993, Cox filed suit under Sec. 16(b) of the FLSA, 29 U.S.C. Sec. 216(b) alleging that Acme violated Sec. 7(a)(1) of the FLSA, id. at Sec. 207(a)(1), when it refused to pay overtime wages for the hours she worked in excess of forty hours in any given work period. Cox sought unpaid overtime compensation and...
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