Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “11th Circ. Offers Rare Look at Definition of Live-In Nanny” by Daniela Porat. (Read the full version – subscription required.)
Following is an excerpt:
An 11th Circuit opinion ruling that a nanny was entitled to overtime pay offers a rare deep dive into the contours of the Fair Labor Standards Act's live-in domestic worker overtime exemption and shows the challenges of enforcing wage protections for household workers, attorneys say.
Under the FLSA, a worker "who is employed in domestic service in a household and who resides in such household" is not entitled to overtime pay. What it means to "reside" in a household while employed as a housekeeper and nanny was the central question before the 11th Circuit.
These questions do not often make their way to court, let alone become the focus of an appellate decision, because the dollar amounts at issue make costly litigation unattractive and domestic workers may fear speaking up….
In the published and unanimous opinion, the three-judge panel evaluated the realities of nanny and housekeeper Maria Blanco's work, ruling that she was, effectively, a "night-shift worker who treated the parents' house as her place of employment."
The panel pointed to how Blanco lived in a separate apartment with her aunt and worked as a nanny at the household "for less than half of the week (79 out of 168 hours)." She also didn't have her own key to the house, according to the decision.
"To put an even finer point on it, the bed Blanco sometimes slept in — which, as we've noted, wasn't in her own space but in the same room as two of the children — wasn't even hers," wrote U.S. Circuit Judge Robin S. Rosenbaum. "She shared it with the two or three other nannies."
The case presented an interesting look at what it means to reside in a household, and the court took a "fairly pragmatic view," said Paul DeCamp, a member of management-side firm Epstein Becker & Green PC and former administrator of the U.S. Department of Labor's Wage and Hour Division.
"People [who] want to rely on the live-in domestic service exemption [need] to make sure that what's going on is truly a bonafide live-in arrangement," he said. "I would encourage employers that want to … rely on this exemption to make sure that somebody, for example, has his or her own bedroom, his or her own bed, that the individual understands that they're welcome to stay seven days a week and actually treat it like they live there, maybe even receive mail there."…
People
Member of the Firm
