MARIA EUGENIA BLANCO, Plaintiff-Appellant, versus ANAND ADRIAN SAMUEL, LINDSEY ADAMS FINCH, Defendants-Appellees.
No. 22-13669
United States Court of Appeals For the Eleventh Circuit
January 24, 2024
Before JORDAN, ROSENBAUM, and HULL, Circuit Judges.
ROSENBAUM, Circuit Judge:
Say the word “nanny,” and any number of beloved fictional characters may pop into mind: Julie Andrews‘s Mary Poppins, Martin Lawrence‘s Big Momma, Fran Drescher‘s Nanny Fine, Robin Williams‘s Mrs. Doubtfire, or Vin Diesel‘s Shane Wolfe, to name just a few. But except for perhaps labor-law lovers, most people probably have never thought about whether any of these nannies would have been entitled to overtime pay in the real world. After all, none of these fictional nannies ever had a story line involving overtime pay.
In the real world, though, whether a nanny is entitled to overtime pay presents an important question for both nannies and their employers. The Fair Labor Standards Act (“FLSA“) governs the answer to this question. As it turns out, generally, employers must pay overtime to nannies who work fewer than 120 hours per week and “reside” off the premises where they work. This case requires us to construe what it means for a nanny to “reside” at her the house where she works.
Plaintiff Maria Blanco spent roughly three years working as a nanny and housekeeper for Defendants Anand Samuel and Dr. Lindsey Finch (together, the “Parents“). For much of that time, Blanco worked 79 hours each week, beginning with one 23-hour shift and followed by four 14-hour overnight shifts. At the end of each shift, Blanco left the Parents’ house until her next shift began. The Parents paid Blanco for all 79 hours she worked each week. But Blanco believes she is also entitled to overtime compensation for 39 hours of the 79 hours each week and filed this action to collect the extra wages. The Parents dispute Blanco‘s claim for overtime pay because, in their view, she falls under a provision of the FLSA that exempts “any employee who is employed in domestic service in a household and who resides in such household” from receiving overtime compensation.
We see things differently. Based on the ordinary meaning of the term “resides,” we conclude that Blanco did not “reside[]” in the Parents’ house. Blanco was a night-shift worker who treated the Parents’ house as her place of employment. She maintained a separate abode, she was on duty for the entirety of her 79 hours each week, and two or three other nannies worked the hours when Blanco didn‘t. In short, based on these and other facts we
Separately, the Parents contend that they individually were not Blanco‘s employer, so they weren‘t responsible for paying her overtime wages. Because we don‘t make credibility determinations at this stage, no matter our view of the evidence, we must agree with the district court that a genuine dispute of material fact exists. So we remand for a trial on this question.
After careful review of the record, and with the benefit of oral argument, we affirm in part and vacate in part the district court‘s order and remand for further proceedings.
I. Background
Blanco filed a motion for summary judgment under
The Parents did not separately move for summary judgment. Instead, in their reply to Blanco‘s motion, they urged the district court to sua sponte grant summary judgment in their favor, as
Blanco appeals both the district court‘s
A. Factual Background
1. Blanco‘s Tenure
Maria Blanco began working as a nanny and housekeeper for the Parents in 2018. During the time the Parents employed her, the Parents had four daughters, all of whom Blanco looked after when she was on duty.2 But Blanco wasn‘t the only nanny who worked for the Parents. Rather, at all times, Blanco was one of several nannies who split the hours of the children‘s care, so when Blanco was on duty, she worked by herself.
At the end of each of her five shifts during each week, Blanco almost always left the Parents’ house, and a different nanny took over the childcare duties. The Parents told Blanco that she was welcome to stay on the premises after her shifts, which she did on occasion. And sometimes, Blanco would invite friends over to the Parents’ house. Blanco earned $800–$880 per week.3
While Blanco worked for the Parents, the Parents briefly lived in a condominium but later moved into a 3-bedroom, 2-bathroom house. In that house, the Parents slept in the master bedroom, while two of their daughters slept in each of the other two bedrooms. During her shifts, Blanco stayed in the room with the two youngest girls.
Blanco‘s responsibilities included housekeeping and cleaning, doing the family‘s laundry, tending to the children and putting them to bed, feeding the babies at night, changing diapers, remaining alert to the children and addressing any issues they had overnight, and waking the children up each morning. According to Blanco‘s deposition testimony, the children woke up often overnight, and that kept Blanco awake for much of the night. Still, Blanco acknowledges that she slept for some periods during the night. And before Blanco rested, she said, she spent the late-night hours studying English on Duolingo while the girls slept.
For their part, the Parents testified in their depositions that Blanco slept every night. They knew that, they explained, because they could hear her snoring from outside the door when they passed by the bedroom. And Blanco was a heavy sleeper. On two or three occasions, after returning home late and finding himself locked out of the house, Samuel had to bang on Blanco‘s bedroom window to ask her to let him in because Blanco did not respond when Samuel rang the doorbell or called her on the phone.
When Blanco arrived for her shifts, she brought a change of clothes and an overnight bag. She usually showered at the Parents’ house after the children went to sleep. The room in which Blanco stayed with the girls was not big. So Blanco had only a small bed and a nightstand with a lamp, alarm clock, and Amazon Echo there. According to the Parents, Blanco kept a few clothes and books in the nightstand. Blanco and the girls’ father Samuel were both Catholic, and in the house, Blanco placed some religious symbols, such as an open Bible in the living room, a rosary in one bedroom, and an angel in another.
Importantly, when Blanco was not working, she lived with her aunt at an apartment in North Miami. Although no written lease memorialized that arrangement,
Blanco stopped working for the parents in August 2021. That happened, Blanco testified, because the Parents told her that, after the birth of their fifth child, they reassessed their childcare needs and no longer required her services. But according to Dr. Finch (the mother), Blanco‘s release stemmed from her abandonment of the job. Grace Trask, another nanny, fired Blanco.
2. Nanny Employment Structure
As we‘ve mentioned, along with Blanco, several other nannies worked in the Parents’ house during the relevant period. These other nannies were Isabella Toribio, Adrianna Gomez, Shane Tompkins, and Grace Trask. For most of that period, the Parents employed the nannies through one of two LLCs, each of which one of the nannies operated. The first entity was called Nannies with Love, LLC, and Toribio ran that operation. At some point, Nannies with Love exited the picture, and the second entity, Amazing Gracie, LLC, took over. Trask managed Amazing Gracie.
Although the parties dispute many facts surrounding the formation and structure of these entities, they do agree on some points. As relevant here, the Parents were each LLC‘s only client, the Parents paid the LLCs the exact amounts that corresponded with the nannies’ collective compensation, and the LLCs themselves made no profits.
Still, the parties disagree about some things. For example, Blanco alleges that the Parents directed Toribio and Trask to open and operate the LLCs, while the Parents deny all involvement in the formation of the LLCs.
Even more fundamentally, Blanco contends that the Parents controlled all aspects of her employment, including hiring and firing, scheduling, compensation, and responsibilities inside the house. Meanwhile, the Parents deny any involvement with the nannies’ employment in their house. They claim they “outsourced all aspects of the nanny operation” to the LLCs, “including scheduling, payroll[,] and regulatory compliance.” The Parents assert that they did not hire the nannies, did not control the nannies, and were not involved in setting any nanny‘s schedule, compensation, or responsibilities. Rather, the Parents insist, they told the LLCs only which hours they needed childcare coverage and paid the LLCs a weekly lump sum, while the LLCs filled in all the remaining details. Indeed, the Parents claimed, they “had no operational control over, and knew little about” the LLCs. In short, the Parents reject the notion that they knew anything about the nannies who worked in their household and cared for their children twenty-four hours a day, seven days a week.
That said, the Parents do acknowledge that, during an eight-week period in late 2018 through early 2019 after the Parents had an “acrimonious” separation with Toribio and Nannies with Love, the Parents were involved in the employment of the nannies “until another nanny agency was established.” This arrangement lasted until the Parents hired Trask and her new entity, Amazing Gracie, to serve as replacements.
B. Procedural History
Blanco filed a complaint in state court seeking payment of overtime wages under the FLSA. According to Blanco, she is entitled to $28,891.59 in overtime pay. So including the FLSA‘s liquidated-damages multiplier,4 Blanco seeks a total of $57,783.18, plus attorneys’ fees.
The Parents removed Blanco‘s suit to federal court. Primarily, they argued that she is statutorily exempt from receiving overtime pay under
After discovery, Blanco moved for summary judgment. She contended that the FLSA makes her a protected employee, does not exempt her from overtime pay, and entitles her to liquidated damages.
The Parents opposed the motion. In their view, Blanco was statutorily exempt from overtime pay, and “substantial evidence” showed that the Parents were not Blanco‘s employer. The Parents also urged the district court to grant summary judgment in their favor under
The district court first denied Blanco‘s motion for summary judgment. It concluded that Blanco was not entitled to overtime pay because the record evidence suggested that she was exempt from overtime pay under section
Besides reaching these conclusions, the district court gave notice that it would consider applying
After the hearing, the district court granted summary judgment for the Parents. It reiterated its conclusion that Blanco was exempt from overtime pay under section
Blanco timely appealed.6
Summary judgment is appropriate when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law.
On the other hand, even if a court “believes the evidence presented by one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility choices.” Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006). Indeed, the court cannot discount a party‘s testimony on summary judgment “unless it is blatantly contradicted by the record, blatantly inconsistent, or incredible as a matter of law, meaning that it relates to facts that could not have possibly been observed or events that are contrary to the laws of nature.” Feliciano, 707 F.3d at 1253. And we‘ve recognized that a nonmoving party can create a genuine dispute of material fact even if its evidence “consists primarily or solely of [its] own self-serving sworn statements or testimony.” Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1351 (11th Cir. 2022). “‘Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge,’ so they are not appropriate determinations to make at the summary judgment stage.” Butler v. Gualtieri, 41 F.4th 1329, 1334 (11th Cir. 2022) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
III. Discussion
Our discussion proceeds in two parts. We first consider whether the FLSA‘s exemption for live-in domestic service employees excludes Blanco from overtime-payment eligibility. Second, we assess whether the Parents have raised a genuine dispute of material fact as to whether they were Blanco‘s employer.
A. Blanco is not exempt from overtime pay.
1. Under the FLSA, Blanco did not reside at the Parents’ house.
The FLSA entitles many workers to overtime compensation—time-and-a-half pay—for each hour of work exceeding forty hours per week.
But not all workers are eligible for overtime compensation. The FLSA “exempts certain categories of workers from its protections, including the overtime-pay guarantee.” Id.;
Congress enacted the live-in service exemption in 1974 when it amended the FLSA “to include many ‘domestic service’ employees not previously subject to its minimum wage and maximum hour requirements.” Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 162 (2007); Fair Labor Standards Amendments of 1974, Pub. L. 93-259, § 7, 88 Stat. 55, 62 (1974). Though the amendments broadened FLSA‘s coverage of domestic service workers, they exempted certain workers from coverage, including through the live-in service exemption. Long Island Care, 551 U.S. at 162.
For the live-in service exemption to apply, the employee must (1) work in domestic service, (2) work in a household, and (3) reside in that household. See
The Supreme Court has provided instructions for how we should interpret the FLSA‘s exemptions. In the past, courts had construed the exemptions narrowly against the employers asserting them. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960). But we no longer do so after the Supreme Court‘s decision in Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018). In Encino Motorcars, the Court explained that “the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly,” so “there is no reason to give them anything other than a fair (rather than a ‘narrow‘) interpretation.” Id. (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 363 (2012)). After all, the Supreme Court reasoned, the exemptions in section
To construe the live-in service exemption, we begin (as we always do) with the statutory text. See Thompson, 67 F.4th at 1305. The FLSA does not define “resides.” Nor have the Supreme Court or we construed the FLSA‘s use of that term. So to determine the meaning of “resides,” we turn to its “plain meaning at the time of enactment.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020). Based on contemporaneous dictionary definitions, to “reside” means “to dwell permanently or continuously; have a settled abode for a time; have one‘s residence or domicile.” Reside, Webster‘s Third New Int‘l Dictionary, Unabridged 1971 (1971);8 see also United States v. Sabhnani, 599 F.3d 215, 256 (2d Cir. 2010)
(adopting a similar definition). In other words, to determine whether Blanco “reside[d]” at the Parents’ house, we must examine whether she lived there.
Applying that definition, the undisputed facts in the record show that Blanco did not “reside[]” at the Parents’ house. At all times, Blanco was one of three or four nannies who worked in shifts at the Parents’ house. Blanco arrived at the house on Sunday mornings, worked for 23 hours, and then worked four 14-hour shifts during the rest of the week. So she was generally at the Parents’ house for less than half of the week (79 out of 168 hours). In between her five shifts, Blanco usually left the Parents’ house and returned to the apartment she shared with her aunt to carry on with her own life.
And when she was at the Parents’ house, Blanco was always working and on duty. To be sure, Blanco slept at times during the night while she was on duty and the children in her room were fast asleep. But even so, Blanco remained on duty at those times. So if a child cried during the night, it was Blanco‘s job to immediately respond to that child. In other words, though Blanco may have slept sometimes while the children slept, her time was not hers. Indeed, the Parents paid Blanco to be on call for all the hours of her shift. See
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. She shared it with the two or three other nannies. Because the three or four nannies weren‘t all at the Parents’ house at the same time, they effectively tag-teamed the single bed, each using that same bed on their own shifts. That is hardly a typical arrangement at one‘s own residence. And if the Parents were right, that would mean that all three or four nannies who shared that single bed in the children‘s room lived at the Blanco house, merely because they sometimes slept there. So on this record, the fact that Blanco sometimes slept in the shared bed, while the children in her care also slept, does not help the Parents’ case that she “reside[d]” at their house.
Nor did Blanco spend any real leisure time at the house, and she kept few personal belongings there. So every time Blanco arrived for a shift, she had to bring an overnight bag and change of clothes with her.
From these facts, viewed in the Parents’ favor, we cannot conclude that Blanco “reside[d]” at the Parents’ house. No doubt Blanco worked at the house and spent significant time there. But that alone does not mean she “reside[d]” there any more than firefighters who sleep in fire-station dormitories while on duty reside at a fire station. The record contains no evidence that Blanco considered the Parents’ house to be her own home. She maintained a separate address and spent as much time away from the Parents’ house as she spent at the house. She also did not usually spend any time at the house between 9:00 a.m. and 7:00 p.m. on the days she was scheduled to work. Nor did she usually spend any time there on Fridays or Saturdays after her weekly shifts ended.9
The Parents emphasize certain parts of the record to support their argument that Blanco “reside[d]” in their house. We are not persuaded.
First, the Parents stress that Blanco sometimes slept when she tended to the children overnight. We‘ve already explained why that doesn‘t help the Parents here.
The Parents also contend that Blanco “treated [their] home as her residence” for three other reasons. The Parents note that Blanco (1) stored clothing, books, and papers in the nightstand, kept an alarm clock on the nightstand, placed an open Bible in the living room, and affixed religious paraphernalia around the house; (2) regularly made breakfast for herself after the school-aged children left for school; and (3) hosted guests from time to time.
To support the first aspect of their arguments, the Parents submitted a declaration from one of the other nannies, Adrianna Gomez. More specifically, Gomez said that Blanco kept religious books, cosmetics, slippers, and socks in the children‘s room with the nannies’ bed. Gomez also attested that the alarm clock in the bedroom belonged to Blanco. And Samuel said Blanco placed a fan and an air purifier by her bedside (though Blanco testified that the fan belonged to the Samuel family).
Blanco did not dispute that she placed certain items around the house. She testified at her deposition that she bought a protecting angel statute and gave it to the girls. She hung one rosary that belonged to her over the bed designated for her (and the other nannies) and another rosary that belonged to the family in the bedroom that the two older daughters shared. Blanco also opened a Bible to a particular verse to protect the home from illness. She testified that she did these things out of her concern for the girls and based on her Catholic faith, which she shared with Samuel.
Even after we credit Gomez‘s declaration and make all inferences in the Parents’ favor, our conclusion remains the same: Blanco did not “reside[]” in the Parents’ house, as the FLSA uses that term. That Blanco kept a few belongings at the Parents’ house does not mean she treated the house as her residence. Just as many office workers keep personal effects—clothing, photos, religious items, and other personal mementos—at their place of employment, Blanco kept a few items in the bedroom where she spent much of her time at work.
And given that Blanco testified that she placed religious objects in the house to protect her charges, Blanco‘s display of a bible verse, a couple of rosaries, and an angel around the house are also
unremarkable. She saw her placement of those items as helping her care for the children—what she was hired to do. The presence of Blanco‘s few stray belongings didn‘t make her place of employment her residence. Nor did the Parents’ testimony about eating breakfast at the Parents’ house or having an occasional houseguest turn their house into Blanco‘s residence any more than eating breakfast at the office or having a friend stop by an employee‘s workplace makes that workplace the employee‘s residence.
To establish that Blanco “reside[d]” at their home, or to create a genuine issue of material fact on this question, the Parents needed to submit additional evidence to
By all accounts, Blanco maintained a separate residence at her aunt‘s apartment and returned there after her shifts were over. That she worked long hours at the Parents’ house does not mean she also resided there. The common understanding of a “residence” precludes the conclusion that the Parents’ house was Blanco‘s residence.
The Parents contend that our conclusion that Blanco did not “reside” in their house conflicts with the Second Circuit‘s decision in United States v. Sabhnani. Even if Sabhnani were binding—it‘s not—we disagree that the two decisions are inconsistent. In Sabhnani, the defendants forced two domestic workers to live in the defendants’ house and work there for minimal wages. 599 F.3d 215, 224–32 (2d Cir. 2010). Because the workers were brought to the United States from Indonesia and had nowhere else to go, the Second Circuit concluded that they “reside[d]” at the defendants’ house. Id. at 256–57. In contrast, here, Blanco spent only her paid work hours at the Parents’ house and returned to her own apartment at the end of each of her shifts. She is not similarly situated to the workers in Sabhnani. Unlike those workers, she was not a permanent resident in the defendants’ home for any period.
In sum, after reviewing the record and making all inferences in the Parents’ favor, we conclude that Blanco did not “reside[]” in the Parents’ house. For that reason, Blanco falls outside the
2. The Department regulations that the Parents cited do not establish that Blanco resided at the Parents’ house.
Our decision flows directly from the statutory text. Still, though, the Parents focus on Department regulations that they believe bear on the meaning of the term “resides.” See Appellees’ Br. at 9–37. We take a moment to explain why we conclude that, even considering these regulations, Blanco did not “reside” at the Parents’ house.11
In parts of the 1974
We begin by observing that the Department has promulgated regulations about live-in service workers. Still, though, none of those regulations expressly define “resides.” But in regulatory materials, the Department has elaborated on its view of when a worker “resides” at her employer‘s premises.
In 2013, the Department promulgated a Final Rule further developing its interpretation of certain
The preamble to the 2013 Final Rule addressed the statutory live-in service exemption found at
The preamble then provided guidance on what the Department meant by the phrase “extended period of time.” First, the Department considers whether the employee spends 120 hours or more on her employer‘s premises each week.
But as it turns out, the phrase “five consecutive days or nights” enjoys its own specialized meaning. To explain that phrase, the Department offered examples. The 2013 Final Rule stated that “employees who reside on the employer‘s premises five consecutive days from 9:00 a.m. Monday until 5:00 p.m. Friday (sleeping four straight nights on the premises) would be considered to reside on the employer‘s premises for an extended period of time.”
The Parents focus solely on the part of this illustration that mentions “five consecutive nights.” Then, noting that Blanco worked and slept at their house on Sunday, Monday, Tuesday, Wednesday, and Thursday nights, they argue that she satisfies the definition because she spent “five consecutive days or nights there.”
We see two problems with this argument. First, the statutory language of
Starting with whether the Department‘s interpretation is entitled to any deference, we find it is not. As we‘ve discussed, our analysis of the statutory text compels the conclusion that Blanco did not “reside[]” in the Parents’ house.
And even if we considered the language in the 2013 Final Rule, we could not ignore that the key language appears only in the preamble to the 2013 Final Rule rather than in the Department‘s regulations themselves. That distinction likely makes a difference. Definitions that appear in the preamble and the Federal Register but do not appear in the Code of Federal Regulations do not enjoy the force of law. AT&T Corp. v. FCC, 970 F.3d 344, 350 (D.C. Cir. 2020) (“[T]he real dividing point between the portions of a final rule with and without legal force is designation for publication in the Code of Federal Regulations.” (citation and internal quotation marks omitted)).13 After all, any definitions that appear in only a preamble have not undergone the notice-and-comment process, so they do not necessarily reflect the agency‘s considered position. See id. at 350–51; cf. Wyeth v. Levine, 555 U.S. 555, 580 (2009) (declining to defer to agency‘s preamble in part because it did not go through notice-and-comment).
To be sure, courts have recognized that a regulation‘s preamble can offer “evidence of an agency‘s contemporaneous understanding of its proposed rules.” Wy. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 53 (D.C. Cir. 1999). And we have said that regulatory preambles can “provide[] some guidance” on the meaning of an agency‘s regulations. Watkins v. City of Montgomery, 775 F.3d 1280, 1284 (11th Cir. 2014). But we are unaware of any authority suggesting that the language an agency uses in a preamble should be awarded the same weight as if the agency chose to formally use the language in the regulation itself.14 And without a definition of “resides” that appears in the Department‘s codified regulations, we do not conclude that the preamble to the 2013 Final Rule is dispositive here.
Still, though, we can consider the Department‘s definition of what it means to “reside” and work at an employer‘s premises for an “extended period of time” for any persuasive value it has. Because the Department‘s interpretation applies the plain meaning of
That brings us to the second reason we must reject the Parents’ argument that the Department‘s construction of “resides” supports them. As we‘ve noted, the Parents homed in on the preamble‘s language about “five consecutive nights” to argue that Blanco resided in their house. But this
The language “five consecutive days from 9:00 a.m. Monday until 5:00 p.m. Friday (sleeping four straight nights on the premises)” refers to an uninterrupted period of four-and-(roughly)-one-half consecutive 24-hour days (so a shift of five straight days that includes the four consecutive nights in between).15 In the same way, the “five consecutive nights” language contemplates an uninterrupted period of four-and-(roughly)-one-half consecutive 24-hour days, but beginning with a night (so a shift of five consecutive nights that includes the four straight days in between). In other words, the preamble did not consider a period of “five consecutive nights” of duty, interrupted by the four intervening days off duty, to satisfy its illustration of the meaning of “an extended period of time,” and thus “resid[ing].”
Given this language, it‘s perhaps unsurprising that the Department asserted precisely this interpretation in an amicus brief it filed here. As the Department explained, this language from the preamble derives from a 1981 Opinion Letter from the Department‘s Wage and Hour Division. U.S. Dep‘t of Labor, Wage & Hour Div., Opinion Letter WH-505, 1981 WL 179033 (Feb. 3, 1981) (“1981 Opinion Letter“). In that letter, the Department clarified that an employee who spent an uninterrupted period of four days and five nights or four nights and five days (that is, a total of just under 120 hours straight) on the employer‘s premises qualified as one who “reside[d]” there, if “the facilities offered by the employer provide a home-like environment with private quarters separate from the residents of the” home.
In making this point, the Opinion Letter stated,
Employees who are on duty from 9 a.m. Monday until 5 p.m. Friday would also be considered to reside on the employer‘s premises. Even though on duty for less than 120 hours, they are on duty for five consecutive days (Monday through Friday). The fact that they sleep over only four nights does not matter. Similarly, employees who are on duty from 9 p.m. Monday until 9 a.m. Saturday would also be considered to reside on their employer‘s premises since they are on duty for five consecutive nights (Monday night through Friday night).
For starters, the Parents’ examples are not designed to assess when an employee “resides” at the employer‘s premises. Rather, the Department created them to illustrate when an employee must be paid for hours they are not actually working. That issue is not before us.
Take the first example the Parents cite. It involves a live-in direct-care worker who assists her roommate in the morning, leaves the residence to attend classes, and then returns “home” to the premises in the evenings where she spends time further assisting her roommate but also spends time studying, watching television, and doing her laundry. 78 Fed. Reg. at 60,492. This example, which comes from a different part of the preamble to the 2013 Final Rule, explains that “the hours spent engaged in personal pursuits are considered bona fide off-duty time and are not compensable hours.”
The Parents also invoke a Department Fact Sheet that envisions a live-in domestic service worker who assists her disabled employer in the mornings, leaves the residence to work at a different part-time job while her employer works at his own job, and then returns to the home with her employer where she provides additional care until he retires for the evening. U.S. Dep‘t of Labor, Wage & Hour Div., Fact Sheet #79D: Hours Worked Applicable to Domestic Service Employment Under the Fair Labor Standards Act (FLSA) (Apr. 2016). But again, this example contemplates that the “employee . . . lives on the employer‘s premises.”
In sum, we agree with the Department‘s interpretation of the preamble to the 2013 Final Rule. But that‘s because it is consistent with the plain meaning of the statutory text.
And even if the statutory text were ambiguous—we don‘t think it is for the reasons we‘ve explained—we would value the Department‘s interpretation only for its “power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). As the Supreme Court explained, the “general rule . . . is not to give deference to agency interpretations advanced for the first time in legal briefs,” unless the interpretation reflects the agency‘s “fair and considered judgment on the matter in question.” Kisor v. Wilkie, 139 S. Ct. 2400, 2417 n.6 (2019) (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997)). Here, we would not defer to the Department‘s position in its amicus brief but instead evaluate the weight of the Department‘s judgment based on “the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements,” among other factors. Skidmore, 323 U.S. at 140. The Department‘s reliance on decades of its own formal interpretations of what it means to “reside” on an employer‘s premises reflect the breadth and depth of its consideration of the issue before us. See id. So we would find the Department‘s brief to be persuasive if we had to look past the statutory text.
All told, the Department‘s applicable regulations and interpretive documents establish that Blanco did not “reside[]” in the Parents’ house. So even under this analysis, Blanco would not be exempt from overtime pay under the
In sum, as to overtime pay for Blanco, we vacate the district court‘s grant of summary judgment in favor of the Parents, reverse the district court‘s denial of Blanco‘s motion for summary judgment, and conclude Blanco is entitled to overtime pay.
B. A factual dispute exists over whether the Parents were Blanco‘s employer.
The Parents argue that, if Blanco is entitled to overtime pay, they are not responsible for paying her overtime wages because they were not her “employer” as the
The district court found a genuine dispute of material fact as to whether the Parents were Blanco‘s employer. Blanco appeals that decision and asks us to enter
As we‘ve explained, on review of an order on summary judgment, we apply the same standards as the district court. So on this separate issue we must view the record in the light most favorable to the Parents and make all inferences in their favor. Feliciano, 707 F.3d at 1252. And when we do that, we must conclude that a genuine dispute of material fact exists and precludes summary judgment.
Under the
“[U]nder this expansive approach, an entity is deemed to employ a worker where, as a matter of ‘economic reality’ and under all the circumstances, the worker is ‘economically dependent’ on the hiring entity.” Id. (quoting Aimable v. Long & Scott Farms, 20 F.3d 434, 439 (11th Cir. 1994)). Any label the parties may place on their relationship and any contracts that may govern that relationship do not control whether an employer-employee relationship exists. Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir. 2013). Rather, we answer that question by homing in on “whether ‘the work done, in its essence, follows the usual path of an employee.‘” Id. (quoting Rutherford Food, 331 U.S. at 729).
To help us determine whether an entity qualifies as an “employer” under the
- the nature and degree of control of the workers;
- the degree of supervision, direct or indirect of the work;
- the power to determine the pay rates or the methods of payment of the workers;
- the right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers;
- preparation of payroll and the payment of wages;
- ownership of facilities where work occurred;
- performance of a specialty job integral to the business; and
- investment in equipment and facilities.
Id. (alterations adopted) (citation and internal quotation marks omitted).
We‘ve also outlined five overarching principles that inform our application of the Aimable factors. First, “in joint employer cases, rather than fixating on whether the worker is relatively more dependent on one putative employer than the other,” we “focus on the worker‘s relationships with each putative employer.” Id. (citations omitted). Second, “no one factor is dispositive” in this analysis. Id.. Third, the weight we give to each of the eight Aimable factors “depend[s] upon the extent to which it is probative of the worker‘s economic dependence on the putative employer under the circumstances.” Id.. Fourth, our review is not an exercise in addition and subtraction. Rather, we
Before we apply the Aimable factors to Blanco‘s case, we reiterate that, at this stage, we must view the record in the light most favorable to the Parents and make reasonable inferences in their favor. As we‘ve emphasized, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]” Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (quoting Anderson, 477 U.S. at 255).
The Parents disclaim any involvement with controlling, supervising, hiring, firing, and paying the nannies. Dr. Finch (the children‘s mother) testified at her deposition that she could not recall giving any of the nannies any directions about how to care for her children. Nor did Dr. Finch know any details about Blanco‘s responsibilities and duties within the house. The only job requirement, from Dr. Finch‘s perspective, was that an adult would come to the house to care for the children.
Dr. Finch also swore in her declaration that she “did not control or supervise Ms. Blanco to any meaningful degree.” She attested that she “outsourced all aspects of the nanny operations including scheduling, payroll and regulatory compliance” to the LLCs. Dr. Finch‘s only role, she claimed, was to “indicate[] to the agency the coverage [she] needed (i.e., what hours [she] needed a nanny).” But she “did not direct who among the nannies appeared at any particular time, or what specific duties each nanny had (such as preparing meals, bathing, dressing for school or for bed, etc.).” The Parents also represented that they “had no operational control over, and knew little about” Amazing Gracie.
Nor did the Parents “determine the rate and method of payment each week,” according to Dr. Finch. And they did not know how much each nanny was paid. Dr. Finch attested that she generally paid Amazing Gracie one lump sum of around $2,400 each week without any knowledge of which nanny received which amount.
Dr. Finch also disclaimed any involvement in hiring and firing Blanco. In fact, at her deposition, Dr. Finch testified that she did not know how Blanco came to work for the family. And she said that Blanco‘s departure stemmed from her own abandonment of the job.
But other record evidence creates disputes about the Parents’ degree of control over the nannies. For example, Grace Trask—one of the nannies and the principal of Amazing Gracie—testified at her deposition that she did not tell the other nannies what to do or otherwise supervise them, and that she did not have the right to discipline or fire them. Trask also testified that the Parents gave instructions about caring for the children, such as which activities were scheduled and which tasks needed to be done around the house. And though Trask knew that she paid Blanco $880 per week, she did not know how that amount was calculated. Rather, Trask explained, it was simply the same amount that Blanco had been making previously.
Still, some undisputed facts exist about an eight-week period in which the nannies were not affiliated with an LLC. At some point, Toribio and her LLC, Nannies with Love, which ostensibly employed the other nannies as well, parted ways with the Parents. When that happened, the nannies ceased their affiliation with Nannies with Love. And an eight-week period ensued in which no LLC even possibly employed the
In short, the Parents claim that all the nannies at first worked exclusively for Nannies with Love until the remaining nannies separated from Nannies with Love and continued to work for the Parents. Then, after an eight-week gap in which the Parents were responsible for supervising and paying the nannies, a new entity—Amazing Gracie—emerged, hired both Blanco and Gomez, and became their exclusive employer. At that point, according to the Parents, Amazing Gracie assumed all oversight of the nanny operation and the Parents once again removed themselves and transferred childcare responsibilities to an entity they “knew little about.”
As the Parents tell it, they did no independent vetting of the nannies who entered their home to watch their children, gave no directions as to the nannies’ duties and responsibilities, and paid little to no attention to the nannies’ work in their home. And while the Parents acknowledge that, for an eight-week period, they paid the nannies directly, they maintain that this was the “lone exception” to their general practice of detachment from the nannies’ day-to-day care for their children.
No matter which version of the events may seem more plausible, under the summary-judgment standard, it is not our role to assess the credibility of the Parents’ assertions. Butler, 41 F.4th at 1334. If the Parents submit evidence that raises a genuine dispute of material fact, then we must send the question to a jury to evaluate the parties’ credibility. See id.. Here, the Parents have submitted sworn testimony and declarations, under penalty of perjury, indicating that they had minimal oversight over the nannies’ care for their children. So we must conclude that a genuine dispute of material fact exists about whether the Parents exercised control and supervision over the nannies’ work in their house. And a jury must decide whether the Parents were Blanco‘s employer and are therefore responsible for paying her overtime compensation.19
Before concluding, we briefly address the parties’ contentions regarding damages. In the district court, the Parents argued that Blanco is not entitled to liquidated damages under
IV. Conclusion
For all these reasons, we conclude that Blanco did not “reside” in the Parents’ house and that she is entitled to overtime pay. As a result, we must vacate the grant of summary judgment to the Parents on that issue. But because a genuine dispute of material fact remains as to who must pay that overtime—that is, whether the Parents were Blanco‘s “employer“—we affirm the district court‘s denial of summary judgment in favor of Blanco on that “employer” issue. We remand for further proceedings consistent with this opinion.
REVERSED AND VACATED IN PART; AFFIRMED IN PART; and REMANDED IN PART.
BLANCO v. FINCH
No. 22-13669
U.S. Ct. App. 11th Cir.
Jan. 24, 2024
HULL, Circuit Judge, specially concurring in part:
HULL, Circuit Judge, specially concurring in part:
I concur in the Court‘s opinion in full, except for Section III.A.2 concerning the Department of Labor‘s (the “Department“) “regulations” and materials discussed in that Section. In my view, the statutory text of the Fair Labor Standards Act, discussed in Section III.A.1, is unambiguous and dispositive of the issue on appeal. I would not give any deference or persuasive value to the preamble of the Department‘s 2013 Final Rule or other materials discussed in Section III.A.2.