McCune v. Oregon Sr. Services Div.
| Decision Date | 26 January 1990 |
| Docket Number | No. 88-3843,88-3843 |
| Citation | 894 F.2d 1107 |
| Parties | 29 Wage & Hour Cas. (BN 1187, 114 Lab.Cas. P 35,305 Jay McCUNE; Alden Carlson; Robert Knee; Ralph L. Shafer; Steven Eldon Jones; Glen Kimble, et al., Plaintiffs-Appellants, v. OREGON SENIOR SERVICES DIVISION; Richard Ladd; Dexter Henderson; Oregon Adult & Family Services Division; Keith Putman; Oregon Department of Human Resources; Leo Hegstrom, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before PREGERSON, TROTT and RYMER, Circuit Judges.
SUMMARY
Appellants are live-in attendants for elderly and disabled persons. Clients pay for their services with federal and state assistance disbursed by appellees. This action was brought by appellants pursuant to the Fair Labor Standards Act ("FLSA") as amended, 29 U.S.C. Sec. 201, et seq. (1982 & Supp.1989), seeking minimum wage for all hours worked. The district court granted appellees' motion for summary judgment, 643 F.Supp. 1444 (1986), finding that services performed by appellants were specifically exempted from the Act. We affirm.
Appellants are full-time, live-in attendants for elderly and infirm individuals unable to care for themselves. Appellants' clients are recipients of federal and state funds under programs administered by appellees, various agencies, and administrators of the State of Oregon. Appellants provide a wide variety of daily services to their clients, including cleaning, cooking, and hygiene and medical care. Such services fall within the general "domestic service" portion of the FLSA, and appellants would thus be entitled to minimum wage protection unless specifically excluded by another of its provisions.
The district court held that appellants performed "companionship services" within the meaning of the FLSA exemption found at 29 U.S.C. Sec. 213(a)(15). The court held accordingly that appellants were excluded from minimum wage protection unless they qualified as "trained personnel" or provided "general household work," the only two exceptions from the "companionship services" exclusion. The district court then held that appellants' training as certified nursing assistants (CNAs) did not qualify them as "trained personnel," and that household work related to the care of the disabled individuals would not be considered "general household work."
Finally, the district court held that, notwithstanding its general analysis, any particular appellant who could prove coverage
under FLSA minimum wage protection could recover payment for (1) those hours of work that appellees had authorized, and (2) those hours worked in excess of authorization of which appellees were aware. The court further held, however, that although defendants and the disabled recipients were joint employers, knowledge of hours worked would not be imputed from the disabled recipients to the defendants.
In Walling v. General Indus. Co., 330 U.S. 545, 67 S.Ct. 883, 91 L.Ed. 1088 (1947), the Court held that questions regarding an employee's inclusion within one of the exemptions of the FLSA are questions of fact and should not be overturned unless clearly erroneous. We followed this standard in Hoyt v. General Insurance Company of America, 249 F.2d 589, 590 (9th Cir.1957), and Wainscoat v. Reynolds Electrical & Engineering Co., 471 F.2d 1157, 1161-62 (9th Cir.1973). In the instant case, however, the district court treated the question as one that did not involve a genuine issue of material fact and granted summary judgment as a matter of law in favor of the appellees. We review a grant of summary judgment based upon statutory construction de novo. Turner v. McMahon, 830 F.2d 1003 (9th Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988).
Appellants argue that the district court erred in holding that the companionship services exemption applied to them. Appellants, (quoting 29 C.F.R. Sec. 552.3), argue they are domestic service employees as the Secretary defines that term because their jobs include acting as:
cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, footmen, grooms, and chauffeurs of automobiles.
They correctly point out that all exceptions to the FLSA must be narrowly construed. A.H. Phillips, Inc. v. Walling, 324 U.S. 490, (1945). Nevertheless, the legislative history of the FLSA and the statutory language of the exemption demonstrate that Congress clearly recognized that companions would be an exempt sub-category of domestic service workers. The language of the FLSA exempts:
(15) any employee employed on a casual basis in domestic service employment to provide babysitting services or any 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 regulations of the Secretary).
29 U.S.C. Sec. 213(a)(15); see also H.R.Rep. No. 913, 93d Cong., 2d Sess. 120, reprinted in 1974 U.S.Code Cong. & Admin.News 2811, 2821, 2842 () (hereinafter H.R.Rep. No. 913). The Secretary has determined that companionship services are
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.... 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.
Appellants urge us to ignore the Secretary's definition because of what they perceive as an inequitable result that follows from focusing on the recipients of these services as the determinative factor in applying the exception. They point out that individuals providing services to the elderly and infirm have a much less attractive job than those domestic service workers providing services to other clients. We are not without sympathy for this argument. Appellants provide a wide variety of critical services under very unattractive conditions. They live with their clients at a near poverty level providing around-the-clock care. We cannot say, however, that the Secretary's definition of "companionship services" is unreasonable in light of his congressional mandate. Where Congress has delegated authority to an agency to elucidate a specific provision of a statute by regulation, such regulations are to be given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). As long as the agency's construction is reasonable, it must be upheld. See Connecticut Dept. of Income Maintenance v. Heckler, 471 U.S. 524, 532, 105 S.Ct. 2210, 2214, 85 L.Ed.2d 577 (1985). While we do not find fault with the strong policy arguments made by appellants, we note that there are also sound policy reasons for applying the exemption to companions as defined by the Secretary. We are informed that these critical services reach more elderly or infirm individuals than they otherwise would precisely because the care-providers are exempt from the FLSA. We also note that many private individuals, who do not benefit from federal and state assistance, may also be forced to forego the option of receiving these services in their homes if the cost of the services increases. The only alternative for these individuals may be institutionalization.
This argument is not properly addressed to the judiciary. Appellants must petition the Secretary or Congress for the remedy they seek.
The FLSA exception under scrutiny applies to "any employee employed on a casual basis in domestic service employment to provide baby-sitting services or any employee employed in domestic service employment to provide companionship services...." 29 U.S.C. Sec. 213(a)(15) (emphasis added). Appellants argue that the "casual" qualification was intended to apply to companions as well as baby-sitters. The Secretary's regulation defining companionship services provides, "[T]he 'casual' limitation does not apply to companionship services." 29 C.F.R. Sec. 552.106. As noted above, we must uphold the Secretary's interpretation of a statute he is charged with administering if that interpretation is reasonable. Heckler, 471 U.S. at 533, 105 S.Ct. at 2215. In light of the plain language of the statute, we cannot say that this is an unreasonable interpretation.
Appellants point to legislative history in which the committee stated that one reason the exemption applied to babysitters and companions was that these workers "are not regular breadwinners or responsible for their families' support." H.R.Rep. No. 913, 1974 U.S.Code Cong. & Admin.News at 2845. Appellants argue that, while they are companions, they are also breadwinners, and thus Congress did not intend that the provision apply to them.
However, the statements included in the legislative history are merely policy justifications for the exception. The plain language of the statute does not make this "breadwinner/nonbreadwinner" distinction, and we decline to fashion one. The proposal for such a change to the FLSA is more appropriately...
To continue reading
Request your trial
-
Guerrero v. Superior Court of Sonoma Cnty.
... ... ; Jo Weber, as Director, Sonoma County Department of Human Services et al., Real Parties in Interest. A133202 Court of Appeal, First ... (29 U.S.C. § 552.6.) In McCune v. Oregon Senior Services Div. (9th Cir.1990) 894 F.2d 1107 ( McCune ), ... ...
-
Coke v. Long Island Care at Home, Ltd.
... ... of Labor ("DOL") that define and interpret the "companionship services" exemption in the Fair Labor Standards Act ("FLSA" or "the Act"), 29 ... See, e.g., Johnston, 213 F.3d at 565; Salyer, 83 F.3d at 787; McCune, 894 F.2d at 1110. Only Harris, 2001 WL 78448, at *5, 2001 U.S. Dist ... Or. Senior Servs. Div., 894 F.2d 1107 (9th Cir.1990); Cox v. Acme Health Servs., Inc., 55 ... ...
-
Gay v. Extended Family Concepts
... ... to pay overtime because the homemakers provided "companionship services" to the residents. See 29 U.S.C. § 213(a)(15) ... On ... her exempt for performing "companionship services." See, e.g., McCune v. Oregon Senior Services Div., 894 F.2d 1107, 1109 (9th Cir.1990) ... ...
-
Coke v. Long Island Care at Home, Ltd.
... ... basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide ... McCune v. Oregon Senior Services Division, 894 F.2d 1107, 1110 (1990) ... ...