U.S., Dept. of Labor, Employment Standards Admin. Wage and Hour Div. v. Elledge

• Citation: 614 F.2d 247
• Decision Date: 21 January 1980
• Docket Number: No. 79-1164,79-1164
• Parties: 24 Wage & Hour Cas. (BN 524, 87 Lab.Cas. P 33,876 UNITED STATES of America, DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION WAGE AND HOUR DIVISION, Defendant-Appellant, v. Jackie ELLEDGE, d/b/a Young Sooners Day Care Center, Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 247

614 F.2d 247

24 Wage & Hour Cas. (BN 524, 87 Lab.Cas. P 33,876

UNITED STATES of America, DEPARTMENT OF LABOR, EMPLOYMENT STANDARDS ADMINISTRATION WAGE AND HOUR DIVISION Defendant-Appellant, v. Jackie ELLEDGE, d/b/a Young Sooners Day Care Center Plaintiff-Appellee.

No. 79-1164.

United States Court of Appeals Tenth Circuit.

Argued Nov. 26, 1979.

Decided Jan. 21, 1980.

David N. Adair, Jr., Kansas City, Mo. (Carin Ann Clauss, Sol. of Labor, James E. White, Regional Sol., Dallas, Tex., Donald S. Shire, Associate Sol., and Lois G. Williams, U. S. Dept. of Labor, Washington, D.C., with him on brief), for defendant-appellant.

George H. Ramey, Yukon, Okl., for plaintiff-appellee.

Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The issue is whether an enterprise operated by plaintiff-appellee Elledge is a preschool within the coverage of the Fair Labor Standards Act, FLSA, 29 U.S.C. § 203(s)(5). Elledge sought, in a declaratory judgment action, a ruling that she did not operate a preschool. The Secretary of Labor answered that the FLSA applied and counterclaimed for enforcement. The parties stipulated that, if the enterprise were a preschool, plaintiff had violated FLSA. The trial court held that the enterprise was not a preschool and, hence, was beyond FLSA coverage. We reverse.

Plaintiff operates the "Young Sooners Day Care Center" (the Center), in Yukon, Oklahoma. It is open from 6:00 a. m. to 6:00 p. m., Monday through Friday and accepts children ranging in age from infancy to 12 years, with 62% Being three to five years. Children are accepted on a regular, occasional, or drop-in basis and charges are for weekly, daily, or hourly periods. Most of the children are brought to the facility by working parents.

The Center is in a one-story building located within a fenced yard. One room is used as an office and another contains kitchen facilities. The other rooms are equipped with cribs, cots, tables, chairs, pictures, television, and a great variety of toys, books, and games. Playground equipment is in the yard. The Center posts a schedule of activities, generally designating time periods for breakfast, morning activities, lunch, naps, snacks, and outdoor play. Occasionally children are taken on field trips. Children of school age are transported from the Center to their school and back. The plaintiff employs no certified teachers at the Center and has no written lesson plans, achievement records or progress reports.

Section 203(s)(5), 29 U.S.C., defines "enterprises" as including:

"a hospital, an institution primarily engaged in the care of the sick, * * * a school for mentally or physically handicapped or gifted children, a preschool, elementary, or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit) * * *."

The word "preschool" was added in 1972 by the following amendment, P.L. 92-318, Sec. 906(b)(2), (3), 86 Stat. 375:

"Section 3(s)(4) of such Act (29 U.S.C. 203(s)(4)) is amended by deleting 'an elementary or secondary school' and inserting in lieu thereof 'a preschool, elementary or secondary school.' "

P.L. 92-318 contains the 1972 amendments to various acts pertaining to education. 86 Stat. 235 et seq.

We find no legislative history of any help or significance. Apparently the only reference is in H.R. 92-1085, 92nd Cong. 2d Sess., 2 U.S.Cong. & Admin.News 1972, pp. 2462, 2567, which says:

"Section 1009 amends section 3(r)(1) of the Fair Labor Standards Act of 1938, relating to the definition of the term 'enterprise' for the purposes of the Act, by adding 'preschool' to the existing listing of 'an elementary or secondary school' as types of activities performed for business purposes."

The change in § 203(r)(1) is the same as that in § 203(s)(5), the provision which is here pertinent.

The 1972 amendments did not change the definitions of elementary and secondary schools found in § 203(v) and (w) which read:

"(v) 'Elementary school' means a day or residential school which provides elementary education, as determined under State law.

(w) 'Secondary school' means a day or residential school which provides secondary education, as determined under State law."

The Center is licensed by Oklahoma as a day care center which is defined as a "facility which provides care and protection of six or more children for a part of the twenty-four hour day." 10 O.S. § 402(d). The statute excludes from the definition "nursery schools, kindergartens, or other facilities of which the purpose is primarily educational, recreational, or medical treatment." Id. The State Board of Education is authorized to regulate the accreditation of "all public nursery, kindergarten, elementary and secondary schools in the state," 70 O.S. § 3-104(10). Accreditation of private schools may be made on application. 70 O.S. § 21-101. Plaintiff's Center is not accredited.

Marshall v. Rosemont, Inc., 9 Cir., 584 F.2d 319, considered whether certain Arizona enterprises were preschools within the meaning of § 203(s)(5). The court recognized the trial court's finding that the operators "were primarily engaged in the provision of day care services for infants of working mothers," Id. at 321, said that the operations were "essentially custodial in nature," and were not regulated by Arizona as part of its school system. Id. The court held that the activities were not preschools and that FLSA did not apply.

In applying and following the Ninth Circuit, the trial court found that the Center was "essentially custodial in nature", was not certified by the Oklahoma Board of Education as a preschool, and was "primarily engaged in the provision of day care services for infants of working mothers."

We are not impressed by the reference in the Ninth Circuit decision, and in that of the trial court, to state law. Oklahoma law does not define or regulate preschools as such. In McComb v. Farmers Reservoir & Irrigation Co., 10 Cir., 167 F.2d 911, 915, modified and affirmed, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672, we said that FLSA "is not expanded to include some employees and limited to exclude others engaged in the same work, depending upon local statutory or judicial concepts." This principle controls unless Congress makes state law applicable. The statute before us specifically refers to state law as determinative of "elementary" and "secondary" schools. Congress treated preschools differently by not referring to state law as determinative.

The plaintiff and the trial court emphasize the difference between custodial and educational purposes. The statute does not make the distinction. Section 203(s)(5) lists hospitals, institutions for the care of the sick, the aged, the mentally ill or defective. This list is followed by reference to a school for the handicapped, and "a preschool, elementary or secondary school." Thus the section covers both custodial and educational operations. On the record presented a preschool is both custodial and educational. The fact that it is both does not relieve it of its FLSA responsibilities.

Because the statute does not define "preschool," and because of the absence of legislative history, "it is...