Atlanta Employment Attorneys Blog
Domestic workers (like nannies and housekeepers) are a diverse group. Even fictional depictions range from Julie Andrews’ Mary Poppins to Robin Williams’ Mrs. Doubtfire. In real life, these workers often put in long hours, working more than 40 hours a week. Those facts may mean that a nanny or housekeeper may be entitled to substantial overtime compensation if they qualify as a non-exempt employee. If you have questions about the Fair Labor Standards Act’s overtime requirement or the domestic service exemption, consult an experienced Atlanta wage and hour lawyer.
A South Florida nanny’s recent unpaid overtime case clarified the breadth/narrowness of the domestic service exemption in federal cases in Georgia and two surrounding states.
The worker began as a full-time nanny and housekeeper for two South Florida parents in 2019. The nanny worked overnight shifts for five consecutive nights, totaling 79 hours per week. The parents paid the nanny a flat rate of between $800 and $880 weekly.
The nanny eventually sued the parents for unpaid overtime in violation of the FLSA. Her case alleged that the parents illegally failed to pay her time-and-a-half for the 39 overtime hours she put in each week.
The parents contended that the woman was a full-time, live-in domestic employee, which made her exempt under the FLSA and not entitled to time-and-a-half overtime pay.
Section 213 of the FLSA only exempts an “(1) employee who is employed in domestic service,” (2) “in a household,” and (3) “who resides in such household.” This nanny’s case, in which the employer ultimately was unsuccessful, is important for both domestic workers and their employers in analyzing the parameters of “resides.”
The trial court sided with the parents, noting that the U.S. Department of Labor issued a Final Rule in 2013 that said that “reside” can mean residing for “extended periods of time,” which could be satisfied by the worker spending “five consecutive days or nights” “working and sleeping on the employer’s premises.” The court found that the nanny met these criteria and was exempt.
The 11th Circuit Court of Appeals, whose rulings guide federal cases in Florida, Georgia, and Alabama, determined this was incorrect.
The ‘Plain Meaning’ of ‘Resides’
The nanny lived off-site in an apartment she shared with her aunt, she spent no time at the parents’ house except those hours for which she was scheduled to work, she had no key to the home, and her sleeping place at the home was a community bed used by whichever nanny was on duty at the time and situated in a room shared with the parents’ two smallest children. She also did not keep her possessions at the residence, instead bringing an overnight bag for each shift. Using the “plain meaning” of the term “resides” from the statute, the appeals court found that the nanny clearly didn’t live in the parents’ home.
The appeals court also said that the bare facts that the nanny spent substantial time at the parents’ home and slept overnight there for many nights in a row were not proof of “residing,” comparing the nanny’s schedule and accommodations to “firefighters who sleep in fire-station dormitories while on duty.”
The ‘5 Consecutive Nights’ Guidance is Not Statutory Law
The Final Rule from 2013 did not impact the outcome of this worker’s case because the statutory language of the FLSA was clear and dictated a ruling in favor of the nanny, the court said, so the rule did not guide the court’s analysis at all.
This decision should send a clear message to domestic workers and their employers that unless the worker genuinely lives at the employer’s home, the nanny very possibly is a non-exempt employee and entitled to overtime compensation.
Whether you’re an employee or an employer, if you have questions about overtime compensation and exempt versus non-exempt determinations, it is wise to consult experienced legal counsel as classification errors can be very costly. The knowledgeable Atlanta wage and hour attorneys at the law firm of Parks, Chesin & Walbert are here to provide you with knowledgeable advice upon which you can confidently rely and powerful advocacy both in and out of court. Contact us today at 404-873-8048 or through this website to schedule a consultation.