[PUBLISH]
FILED
IN THE UNITED STATES COURT OF APPEALS
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FOR THE ELEVENTH CIRCUIT June 22, 2007
________________________ THOMAS K. KAHN
CLERK
No. 06-11032
________________________
D. C. Docket No. 05-00422-CV-FTM-29-DNF
TAMMY BUCKNER, on her own behalf
and others similarly situated,
Defendant-Appellee,
versus
FLORIDA HABILITATION NETWORK, INC.,
a Florida corporation,
Plaintiff-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 22, 2007)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:
I.
This appeal presents two related issues under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et. seq.: (1) whether a domestic service employee,
employed by a third party employer rather than directly by the family of the person
receiving care, is exempt from the overtime requirements of the FLSA pursuant to
the companion services exemption, and (2) what level of deference is due to
Department of Labor (“DOL”) provisions 29 C.F.R. §§ 552.3 and 552.109(a).1
Consistent with the Supreme Court’s recent holding in Coke v. Long Island
Care at Home, Ltd., No. 06-593, slip op. at 1 (S.Ct. June 11, 2007) (“Coke III”),
we conclude that both §§ 552.3 and 552.109(a) are enforceable regulations, and
§ 552.109(a) controls on the issue of third party employment. Therefore, pursuant
to § 552.109(a), a domestic service employee, employed by a third party employer
rather than directly by the family of the person receiving care, is exempt from the
overtime requirements of the FLSA.
II.
Appellee, Tammy Buckner, was an employee of Florida Habilitation
Network, Inc (“FHN”), which employs care-givers to provide services in
customers’ homes. Buckner provided such services as taking mentally disabled
1
The issues were certified for our review by the district court under 28 U.S.C. § 1292(b).
2
patients on field trips and other outings, and she was paid by FHN, and not directly
by the customers or the customers’ families, on an hourly basis for her services.
Buckner regularly worked in excess of forty (40) hours per work week, for which
she was paid “straight time,” rather than one and one-half times her regular hourly
pay. Buckner filed a complaint against FHN, alleging that she and other similarly
situated individuals should have been paid overtime compensation as required by
the FLSA for all work over forty (40) hours per week. See 29 U.S.C. §§ 207 and
216(b). FHN responded that Buckner and the other employees fell within the
FLSA’s “companion services” exemption and, as such, did not qualify for overtime
pay. FHN, therefore, filed a motion for summary judgment. The district court
denied the motion and, pursuant to FHN’s alternative Motion to Certify
Controlling Question of Law, certified the two questions above for review under
28 U.S.C. § 1292(b). FHN also appeals the district court’s denial of its motion for
summary judgment.
III.
We review a district court’s order on a motion for summary judgment de
novo. Nunnally v. Equifax Info. Servs., LLC, 451 F.3d 768, 771 (11th Cir. 2006);
Cater v. Galloway, 352 F.3d 1346, 1348 (11th Cir. 2003). A determination
regarding the appropriate level of deference accorded to an agency regulation is a
3
question of law, and questions of law are reviewed de novo. See Craven v. United
States, 215 F.3d 1201, 1204 (11th Cir. 2000).
IV.
The FLSA, enacted by Congress in 1938, requires employers to pay
employees not less than one and one-half times the hourly rate for all hours worked
in excess of forty hours in a work week. See 29 U.S.C. § 207(a)(1). In 1974,
Congress extended the coverage of the FLSA to apply to “domestic services,”
which was understood to mean those employed within the home in various
capacities. At the same time, Congress exempted from this new requirement any
employee “employed in domestic service employment to provide companion
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).” 2 29 U.S.C. § 213(a)(15).
Shortly thereafter, the DOL promulgated regulations through a process of
notice and comment rule-making, in Part 552, Subpart A, titled “General
Regulations,” defining the terms “domestic service employment” and “companion
services.” “Domestic service employment” was defined to mean “services of a
household nature performed by an employee in or about a private home (permanent
2
This provision also included an exemption for babysitting services. 29 U.S.C.
§ 213(a)(15).
4
or temporary) of the person by whom he or she is employed.” 29 C.F.R § 552.3.
In Subpart B, titled “Interpretations,” the DOL promulgated other provisions
through notice and comment rule-making, including § 552.109(a) (“third party
employer regulation”), which states, “Employees who are engaged in providing
companionship services . . . and who are employed by an employer or agency other
than the family or household using their services, are exempt from the Act’s
minimum wage and overtime pay requirements . . . .” Like all other exemptions to
the FLSA, the companionship exemption must be “narrowly construed.” Mitchell
v. Ky. Fin. Co., 359 U.S. 290, 295 (1959). Although the DOL has at times
suggested amendments to § 552.109, the regulation, along with § 552.3, has
remained unchanged by the DOL and Congress since 1974.
Federal regulations are subject to one of two levels of deference, described
as either Chevron or Skidmore deference. Under the Chevron analysis, if Congress
expressly delegates authority to the agency to make rules carrying the force of law
and the agency promulgates such rules pursuant to that authority, courts give
controlling weight to the regulations unless they are “arbitrary, capricious, or
manifestly contrary to the statute.” Chevron U.S.A. Inc. v. Natural Res. Defense
Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L. Ed. 2d 694 (1984);
see also United States v. Mead, 533 U.S. 218, 226-27, 121 S.Ct. 2164, 2171, 150
5
L. Ed. 2d 292 (2001) (Chevron applies “when it appears that Congress delegated
authority to the agency generally to make rules carrying the force of law, and that
the agency interpretation claiming deference was promulgated in the exercise of
that authority.”). Although a delegation of authority from Congress to an agency
may be explicit, the Supreme Court also has recognized that such delegations may
be “implicit.” See Mead, 533 U.S. at 229; Chevron, 467 U.S. at 844.
In other situations, where a regulation fails to meet Chevron, the
Skidmore analysis applies. Under Skidmore, an agency’s interpretation may merit
some deference depending upon the “thoroughness evident in its consideration, the
validity of its reasoning, its consistency with earlier and later pronouncements, and
all those factors which give it power to persuade, if lacking power to control.”
Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L. Ed. 124
(1944); see also Mead, 533 U.S. at 234-35.
The issues of what level of deference to afford §§ 552.3 and 552.109(a) are
ones of first impression for the Eleventh Circuit. The appropriateness of granting
Chevron deference to the DOL regulation defining “domestic service
employment,” § 552.3, has not been a contentious issue. In comparison, several
circuit courts have reached different conclusions regarding whether the third party
employer regulation, § 552.109(a), should be granted Chevron deference and
6
whether it is enforceable. See Coke v. Long Island Care at Home, Ltd., 462 F.3d
48 (2d Cir. 2006) (“Coke II”), vacated, No. 06-593 (S.Ct. June 11, 2007); Coke v.
Long Island Care at Home, Ltd., 376 F.3d 118 (2d Cir. 2004) (“Coke I”), vacated,
546 U.S. 1147 (2006); Johnston v. Volunteers of Am., Inc., 213 F.3d 559 (10th
Cir. 2000). On June 11, 2007, the United States Supreme Court resolved this
circuit split and ruled that § 552.109(a) is entitled to Chevron deference and is
enforceable. See Coke III, slip op. at 1.3 The Court in Coke III also addressed the
relevance of § 552.3, and concluded that, although the regulation is valid,
§ 552.109(a) is controlling on the issue of third party employment. Coke III, slip
op. at 9.
In reaching its decision, the Supreme Court in Coke III first concluded that
Congress intended to grant the DOL broad definitional authority, including the
authority to decide whether to include workers paid by third parties within the
3
In Coke I, the Second Circuit held that § 552.109(a) deserves only Skidmore deference
because it is an interpretive regulation rather than a legislative regulation promulgated pursuant
to Congress’s express delegation of authority. Coke v. Long Island Care at Home, Ltd., 376
F.3d 118, 121 (2d Cir. 2004). After the Second Circuit’s decision, the DOL issued an Advisory
Memorandum (“DOL memorandum”) stating that “the Department has always treated the third
party employment regulations as legally binding legislative rules, and it will continue to do so on
an ongoing basis [outside the Second Circuit].” Department of Labor Wage and Hour Advisory
Memorandum No. 2005-1 (Dec. 1, 2005). On appeal to the Supreme Court, the Coke I decision
was vacated and remanded for further consideration in light of the DOL memorandum. Long
Island Care at Home, Ltd. v. Coke, 546 U.S. 1147 (2006). Upon reconsideration of the issue, the
Second Circuit adhered to its original position. Coke v. Long Island Care at Home, Ltd., 462
F.3d 48 (2d Cir. 2006) (“Coke II”). The Supreme Court then granted Long Island Care at Home,
Ltd.’s petition for writ of certiorari.
7
scope of the definitions of “domestic service employment” and “companionship
services.” Id. at 7. Second, the Court considered the respondent’s argument that
§§ 552.3 and 552.109(a) are inconsistent, and, therefore, § 552.3 should control.
Id. at 8. Although the Supreme Court conceded that the two regulations are
inconsistent because one limits the definition of “domestic service employee” for
purposes of the 29 U.S.C. § 213(a)(15) exemption to workers employed by the
household, but the other includes workers who are not employed by the household,
it concluded that § 552.109(a) is controlling on the issue of third party
employment. Id. at 8-9. In so doing, the Court considered the serious problems
that would be created by granting controlling authority to § 552.3, the policy of the
specific governing the general, and the DOL’s “considered views” on the matter as
explained in the DOL memorandum.4 Id. at 9-11. Third, the Court determined that
§ 552.109(a) was not merely an “interpretive” regulation entitled only to Skidmore
deference, as argued by the petitioner. Rather, the Court concluded that the Court
should defer to the DOL’s rule. Id. at 13-14. Finally, the Court concluded that the
1974 agency notice-and-comment procedures were sufficient. Id. at 14.
Consistent with the Supreme Court’s decision in Coke III, we hold that both
4
The Court also noted that the DOL has interpreted these regulations differently at
different times, but concluded that “as long as interpretive changes create no unfair surprise . . .
the change in interpretation alone presents no separate ground for disregarding the Department’s
present interpretation.” Coke III, slip op. at 10.
8
§§ 552.3 and 552.109(a) are enforceable regulations, and § 552.109(a) controls on
the issue of third party employment. Therefore, pursuant to § 552.109(a), a
domestic service employee, employed by a third party employer rather than
directly by the family of the person receiving care, is exempt from the overtime
requirements of the FLSA.
For the foregoing reasons, we REVERSE the district court’s denial of
FHN’s motion for summary judgment and REMAND for further proceedings
consistent with this opinion.
9