Amicus Curiae Brief — Long Island Care at Home, Ltd. v. Coke

No. 06-593

In The

Supreme Court of the Gnited States

¢

LONG ISLAND CARE AT HOME, LTD.

and

MARYANN OSBORNE,

Petitioners,

EVELYN COKE,

Respondent.

S

On Writ Of Certiorari To The United States

Court Of Appeals For The Second Circuit

o

BRIEF OF LAW PROFESSORS AND

HISTORIANS AS AMICI CURIAE

IN SUPPORT OF THE RESPONDENT

e

JAMES REIF

GLADSTEIN, REIF & MEGINNISS, LLP

817 Broadway. Floor 6

New York. New York 10005-4709

(212) 228-7727

TABLE OF CONTENTS

Page

Re Gr Bae Se critctctstnceninsnssntancosetneninscniannen ii

INTEREST OF THE AMICI CURIAE ........cccccccseceeeeeeee 1

INTRODUCTION AND SUMMARY OF ARGUMENT... 2

TE siiecisicscesiiniiesiiaaihiaaisa tahitian 4

I. DOLUS THIRD-PARTY REGULATION IS IN-

CONSISTENT WITH CONGRESSIONAL IN-

A. CONGRESS DID NOT INTEND THE

PHRASE “DOMESTIC SERVICE EMPLOY-

MENT” TO INCLUDE THIRD-PARTY

DOMESTIC SERVICE EMPLOYMENT.... 4

B. CONGRESS INTENDED TO EXCLUDE

ONLY NON-“BREAD-WINNERS” WHO

WORK AS DOMESTIC SERVICE COM-

Pe cciindisitsnsinnintiiciiniptesianensinnanonsititoitiies 12

II. OTHER FEDERAL EMPLOYMENT STATUTES

SUPPORT THE EXCLUSION OF DOMESTIC

SERVICE COMPANIONS EMPLOYED BY

EE SORE EP ertcnscartectesnmssertccemunsensesmemannen 13

Ee wunsiesonsntcizensssnnsesessoneenenensnsnseminetinenamnecensnns 15

TABLE OF AUTHORITIES

Page

CASES:

30 Sutton Place Corp. & Local 32B-32J, Service

Employees Int'l Union, 240 NLRB 752 (1979).............. 14

Ankh Serv., Inc., 243 NLRB 478 (1979).............ccccesceeeeeees 14

Personal Touch Home Care, Inc., Case No. 29-RC-

9697 (2001), http:/Awww.nlrb.gov/nirb/shared_files/

decisions/dde/200 1/2-RC-22447. pdf .........:ccceseseceeeseeeees 14

Success Village Apartments, Inc. v. Local 376, UAW,

Pe a RN I ceriiecnicennesiiccsiiiesitsehinidetibdeitinchnnicain 14

STATUTES AND REGULATIONS:

es Oe ID i sciinnsistinahesicieicieaeiecneicianbbtihisendeeiaiimaii 14

TEL CITT icsatieninidndeinceainensdicpaiiitinmantabaaibianiemennonnididtii 2

re ITED ilisccisssacesdeiiscintipdeiecebinbiihniieiitisiianiiciiineiindibiaiianiatin 2

ee I ciedcnisstceiteitteninieccintinenitaiadiciiiapieaiia’ 2,10, 11

42 U.S.C. § 409(a)(6)(B) (2000)................:scccceccesssereceeesseens 14

es SN: SP II icicshcsssssinricnsindtaliaiehiiiemeetbiiiontasie 4,5

Be es Oe ED ciriscctnnststnansicininsdsenninnascagaiiinngniats 14

a ee TO 3

29 C.F.R. § 1975.6 ......... soseesecneensenesoesesnvenececcosececcsoowesees 14,15

Sa. Ba re CD eticntictnsiintncntitiansenseniinccinmnianien 4

nh, Set PCI iscnsersinieieiinicieinsineiinieninnesieii 9,10

BED Comms, Bae. B46, TOD (RTS) oss ccesesccccescsccescoscccsscssconssencesss 10

Be I, Bae, Fe Cte cectcccricesscestonsestcetenctsuntesssacssine 10

Social Security Act of 1935 § 210(b)(2), 49 Stat. 625........ 13

ill

TABLE OF AUTHORITIES.

Page

BOoKS, ARTICLES, AND REPORTs:

H.R. Conf. Rep. No. 93-413, 93rd Cong., lst Sess.

Surat acchcsiecistieianiscuiadanisasepiiahenitiiibtasdibaliaiiitaiaedialbdiniidediniduialidvommeds 12

H.R. Rep. No. 93-232, 93rd Cong., Ist Sess. (1973) ........... 9

H.R. Rep. No. 93-913, 93rd Cong., 2d Sess. (1974) ...5, 9, 12

S. Rep. No. 93-300, 93rd Cong., 1st Sess. (1973)....... 4,5,10

S. Rep. No. 93-690, 93rd Cong., 2d Sess. (1974)........ passim

Department of Labor, Report to Congress on Mini-

mum Wage and Maximum Hours (1973)..............::06 5,6

Department of Labor, Private Household Workers

See a ciniscsinsiniieninsinicaiiigeibiiasiiendiniiniibipisntdabiannionidinimininiiiibemneteite 4

Department of Labor, Report to Congress on Mini-

mum Wage and Maximum Hours (1974).................0+- 4,6

BENJAMIN ANDREWS, ECONOMICS OF THE HOUSE-

EE ane en a ne 6, 7

Jean Collier Brown, Reading List of References on

Household Employment, BULLETIN OF THE

WOMEN’S BUREAU, No. 154 (1937).............cccseceeseceeeeeeeeees 8

ELIZABETH CLARK-LEWIS, LIVING IN, LIVING OUT

I ccc lial ae ac es 8

BRENDA CLEGG GRAY, BLACK FEMALE DOMESTICS

DURING THE DEPRESSION IN NEW YORK CITY,

I cihcienictasiuincchinssniactielillitiscilsienancecteien uate

Clara Cook, Help Wanted! (Women’s Trade Union

TE TEE cnddinnnissndsenauiiicindstaienniaiibisbicindiaicninioimeue 7

Marie Correll, Standards of Placement Agencies for

Household Employees, BULLETIN OF THE WOMEN’S

SEES Eee one SO 7,8

lv

TABLE OF AUTHORITIES

Page

STEVE DAWSON & RICK SURPIN, DIRECT CARE HEALTH

WORKERS: THE UNNECESSARY CRISIS (2001),

http://www.directcareclearinghouse.org/download/

Br isisiichscinsdipienisnnncinanhiatoenbesiaattinaiibaianealbididemiaiinannpeiniets 12

Benson Ellis, Unemployment Insurance for the

Household Worker, 34 J. OF HOME ECON. 161

SU anETETiccsiecleceisciieiiieieicmeeiniiieia i a ian 7

Mary Everett, Can Domestic Service Be Standard-

ized? Industrial Regulation Versus Human Values

in Household Employment, 30 J. AM. Ass’N U.

Se Oe GENIE Pcnincntnscieseneesinnnscnenesnnacintuemisensionaseiunisenaies 7

EVELYN NAKANO GLENN, ISSEI, NISEI, WAR BRIDE:

THREE GENERATIONS OF JAPANESE AMERICAN

WOMEN IN DOMESTIC SERVICE (1986) .0.........c..ccecccecceeeeees 8

Household Employment and the Business Basis,

2 BULL. INTER-MUNICIPAL COMM. ON HOUSEHOLD .

I el 6

Eleanor B. Johnson, Household Employment in

Chicago, BULLETIN OF THE WOMEN’S BUREAU, No.

ee a cienhsiniicsciianennsinsistaciannnsibpinnnmeninigiimnitinimnmnmeeiie 8

Davip M. KATZMAN, SEVEN DAyS A WEEK: WOMEN

AND DOMESTIC SERVICE IN INDUSTRIALIZING AMER-

ESTEE ever ee roe Lee en Oe ee eee 8

Nursing Workforce Recruitment and Retention of

Nurses and Nurse Aides Is a Growing Concern:

Hearing Before the S. Comm. on Health, Educa-

tion, Labor & Pensions 107th Cong. 22 (2001),

http://www.gao.gov/new.items/d01750t. pdf .................. 12

PHYLLIS M. PALMER, DOMESTICITY AND DIRT: HOUSE-

WIVES AND DOMESTIC SERVANTS IN THE UNITED

Sy SII CTI crinsicchessdsumsnnnenensecuensetasessetpeansinis 8

TABLE OF AUTHORITIES

JUDITH ROLLINS, BETWEEN WOMEN: DOMESTICS AND

THEIR EMPLOYERS (1985)...........cccccosccesessccerceccseecesees

Peggie Smith, Regulating Paid Household Work:

Class, Gender, Race and Agendas of Reform, 48

AMERICAN UNIV. L. REV. 851 (1999) ...............ccceeeeee

Peggie Smith, Aging and Caring in the Home:

Regulating Paid Domesticity in the 21st Century,

92 Iowa L. REV. — (forthcoming 2007).............:.cces0+

ROBYN STONE, LONG-TERM CARE WORKFORCE SHORT-

AGES: IMPACT ON FAMILIES (2001), available at

http://www.bjbc.org/content/docs/LTC_Workforce_

EIU OIO IEEE cccciecesrnnssvescenpsdiinnintatammenitinienapiiamidin

BONNIE THORNTON-DILL, ACROSS THE BOUNDARIES

OF RACE AND CLASS: AN EXPLORATION OF WORK

AND FAMILY AMONG BLACK FEMALE DOMESTIC

IE Cae cvcccnnnctvetenemacetinsiidinemiaies

Amey Watson, Household Employment in Philadel-

phia, BULLETIN OF THE WOMEN’S BUREAU, No. 93

(BIBER) .ccoccrscecccecsuseovccccocsnsensnenusnsepnonnncssnsnsitsioninssenesinins

BERNADETTE WRIGHT, DIRECT CARE WORKERS IN

LONG-TERM CARE (2005), http://www.hcbs.org/

files/75/3748/directcare. pdf ............ccceeeeeeeeeeeeeeeeeeeeees

-~

1

INTEREST OF THE AMICI CURIAE'

The individual amici are law professors and historians

who teach, write about, or study the history of the Fair

Labor Standards Act or the history of domestic service in

the United States. Amici respectfully file this brief in

support of the Respondent’s challenge to the Department

of Labor’s regulation extending the Fair Labor Standards

Act’s “companionship exemption” to third-party employers.

Based on our study as historians and law scholars, we

believe that the historical record demonstrates that

Congress did not intend the exemption to apply to third-

party employers of companions.

Amici include Mark Barenberg, Professor of Law,

Columbia University; Eileen Boris, Hull Professor of

Women’s Studies, University of California, Santa Barbara;

Nancy Dowd, Chesterfield Smith Professor of Law, Levin

College of Law, University of Florida; Cynthia Estlund,

Catherine A. Rein Professor of Law, New York University

School of Law; Evelyn Nakano Glenn, Professor, Asian

American Studies, University of California, Berkeley;

Jennifer Gordon, Associate Professor of Law, Fordham

Law School; David Katzman, Professor of American

Studies & History, University of Kansas; Laura Kessler,

Associate Professor of Law, University of Utah, S. J.

Quinney College of Law; Jennifer Klein, Assistant Profes-

sor of History, Yale University; Phyllis Palmer, Professor of

American Studies & Women’s Studies, George Washington

University; Judith Rollins, Professor of Africana Studies &

‘ All parties have consented to the filing of this brief. Copies of

their written consents have been filed with the Clerk of the Court.

Amici curiae certify that no counsel for a party has authored any part of

this brief.

2

Sociology, Wellesley College; Katharine Silbaugh, Profes-

sor of Law, Boston University School of Law; Peggie

Smith, Professor of Law, University of Iowa College of

Law; Michael Wishnie, Clinical Professor of Law, Yale

University; and Noah Zatz, Acting Professor of Law,

University of California, Los Angeles, School of Law.’

¢

INTRODUCTION AND

SUMMARY OF ARGUMENT

Prior to 1974, the Fair Labor Standards Act (FLSA)

did not reach workers in domestic service employment -

those employed by private households — because of doubt

about whether they were engaged in interstate commerce.

Congress specifically extended coverage to these workers

in 1974, when it amended the FLSA to apply to employees

“employed in domestic service in a household.” 29 U.S.C.

§ 206(f) (including domestic service workers in the mini-

mum-wage provisions); 29 U.S.C. §207(1) (including

domestic service workers in the overtime provisions).

In passing the domestic service amendment, Congress

simultaneously limited its reach by crafting an exemption

from the FLSA’s minimum-wage and overtime provisions

for persons “employed in domestic service employment to

provide companionship services for individuals who

(because of age or infirmity) are unable to care for them-

selves....” 29 U.S.C. § 213(a)(15). As a result of the

exemption, the FLSA does not apply to employees in

domestic service employment who provide companionship

* Institutional affiliations are provided for purposes of identifica-

tion only.

3

services. The Department of Labor (DOL) has interpreted

the companionship services exemption to apply to third-

party employers such that domestic service 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. ...” 29 C.F.R. § 552.109(a). The regulation

allows third-party employers, including home care agen-

cies that place domestic service employees in individual

private homes, to avoid paying the workers. minimum

wages and overtime under the FLSA. The United States

Court of Appeals for the Second Circuit held that 29 C.F.R.

§ 552.109(a) was inconsistent with congressional intent in

amending the FLSA in 1974 to extend the coverage to

domestic service employees.

Both the legislative history of the companionship

services exemption and the general history of domestic

service support the Second Circuit’s determination that

extending the “companionship exemption” to third-party

employers is inconsistent with Congressional intent in

amending the FLSA to cover domestic service employees.

History reveals that Congress understood “domestic

service employment,” as that phrase is used in the com-

panionship exemption, to refer to an individual and

personal employment relationship, not a_ third-party

relationship that involves an agency.

¢

4

ARGUMENT

I. DOL’S THIRD-PARTY REGULATION IS INCON-

SISTENT WITH CONGRESSIONAL INTENT

A. Congress Did Not Intend the Phrase “Do-

mestic Service Employment” to Include

Third-Party Domestic Service Employment

The legislative history of the 1974 Amendments

supports the conclusion that “domestic service employ-

ment” was not intended to apply to third-party employers

of the type at issue in the case before the Court. First, at

the time of the 1974 Amendments, the FLSA already

protected domestic service employees employed by third-

party employers where the third party was an entity that

qualified as part of an enterprise. See 39 Fed. Reg. 35385

(1974) (DOL finding that “|e]mployees who are engaged in

providing ... companionship services and who are em-

ployed by an employer other than the families or house-

holds using such services ... [were] subject to the [FLSA]

prior to the 1974 Amendments”); Department of Labor,

Private Household Workers (1974), at 7, n.1 (“Employees

of a household service business are presently covered by

the FLSA if the business is a part of an enterprise under

section 3(s) of the Act.”) (emphasis added).’ Consequently,

Petitioners’ argument that “domestic service employ-

ment” includes third-party employers would mean that

* Members of Congress were fully aware of this preexisting

coverage because the DOL reported it to them in reports that were cited

in the Committee Reports and on the floor. See S. Rep. No. 93-300, at 21

(referencing the 1973 DOL Report, Minimum Wage and Maximum

Hours Standards Under the Fair Labor Standards Act); S. Rep. No. 93-

690, at 19 (referencing the 1974 DOL Report, Minimum Wage and

Maximum Hours Standards Under the Fair Labor Standards Act); 119

Cong. Rec. 24,796 (1973) (statement of Sen. Dominick) (same).

5

previously covered domestic service employees performing

companionship services would be excluded in the after-

math of the 1974 Amendments. Such a result runs com-

pletely counter to Congress’ purpose in amending the

FLSA to expand the act’s coverage. 39 Fed. Reg. 35385

(1974) (“[I]t was not the purpose of those Amendments to

deny the Act’s protection to previously covered domestic

service employees.”). In addition, it seems unlikely that

Congress, while aiming to protect more domestic service

employees, would have simultaneously excluded previ-

ously included domestic service employees without any

reference to doing so in the Amendments’ legislative

history.

Because the FLSA already covered most third-party

domestic service employees, it stands to reason that when

Congress sought to expand coverage of the act, it had in

mind the many workers employed on an individual and

personal basis, by household members and/or family

members. Various House and Senate Reports support this

conclusion. The Reports describe domestic service by

observing that “(t]he generally accepted meaning of

domestic service relates to services of a household nature

performed by an employee in or about a private home of

the person by whom he or she is employed.” See S. Rep. No.

93-690, 93rd Cong., 2d Sess. 20 (1974) (emphasis added);

S. Rep. No. 93-300, 93rd Cong., 1st Sess. 22 (1973); H.R.

Rep. No. 93-913, 93rd Cong., 2d Sess. 35 (1974). Petition-

ers seek to undermine this description as one that was

“generally accepted” by observing that domestic service

was often equated with “private household workers.” Pet.

Br. at 35-36 (referencing Department of Labor, Report to

Congress on Minimum Wage and Maximum Hours Under

the Fair Labor Standards Act (1973), at 27; Department of

6

Labor, Report to Congress on Minimum Wage and Maxi-

mum Hours Under the Fair Labor Standards Act (1974),

at 31-32). Because DOL Reports describe the latter phrase

to include employers other than homeowners,’ Petitioners

reason that when members of Congress used “private

household workers” they were necessarily indifferent to

“the nature of the employer.” Pet. Br. at 36. The legislative

history does not support this argument nor does the

history of domestic service.

The mere fact that DOL used the phrase “private

household workers” to refer to “domestic service employ-

ees” (and defined “private household workers” so as to

include third-party employers)’ does not support Petition-

ers’ view that the phrase included third-party employ-

ment. The former phrase appears to have come into vogue

with the National Committee on Household Employment

(NCHE), an organization started in 1928 to improve

conditions in domestic service and to elevate the job into a

profession. See BENJAMIN ANDREWS, ECONOMICS OF THE

HOUSEHOLD 501-04 (1935); Peggie Smith, Regulating Paid

Household Work: Class, Gender, Race and Agendas of

Reform, 48 AMERICAN UNrv. L. REV. 851, 883-85 (1999).°

* See Department of Labor, Report to Congress on Minimum Wage

and Maximum Hours Under the Fair Labor Standards Act (1973), at

27; Department of Labor, Report to Congress on Minimum Wage and

Maximum Hours Under the Fair Labor Standards Act (1974), at 31-32.

* Id.

* While the shift from the phrase “domestic service” to phrases

such as “household worker” and “household employee” gained popular-

ity as a result of the NCHE, these and similar phrases were used much

earlier and interchangeably with “domestic service” and “servant.” See,

e.g., Household Employment and the Business Basis, 2 BULL. INTER-

MUNICIPAL COMM. ON HOUSEHOLD RES. 8, at 8-9 (Nov. 1905) (referencing

(Continued on following page)

An initial priority for NCHE was to replace the use of

terms such as “servant,” “maid,” and “domestic” with the

phrase “household employee.” ANDREWS, at 502. Through-

out the 1930s and 1940s, commentators used a variety of

phrases interchangeably to refer to domestic service

including “household employees,” “household workers” ai 4

“houseworker.” See, e.g., Clara Cook, Help Wanted! at 1, 16

(Women’s Trade Union League, 1939) (using “domestic

worker” and “household employee” interchangeably);

Benson Ellis, Unemployment Insurance for the Household

Worker, 34 J. OF HOME ECON. 161, 161 (1942) (referring to

domestic service employees as “household workers”); Mary

Everett, Can Domestic Service Be Standardized? Indus-

trial Regulation Versus Human Values in Household

Employment, 30 J. AM. Ass’N U. WOMEN 90, 90-92 (1937)

(using “domestic,” “maids,” “houseworkers,” and “girl”

interchangeably).’

comments by individuals who used various phrases to describe domestic

service workers including “houseworker” and “household employee”).

” Commentators often referred to “employment agencies” when

speaking of domestic service in private homes but by all accounts such

agencies were not employers of the domestics. Instead, the agencies

were placement agencies that matched workers with household

employers. See Marie Correll, Standards of Placement Agencies for

Household Employees, BULLETIN OF THE WOMEN’S BUREAU, No. 112, at 1

(1934) (“Agencies placing domestic workers have an opportunity to

influence employment contracts by the giving of information and by

refusing to recommend an unreliable worker or a position where the

terms and conditions of employment are considered unsatisfactory.”); id.

at 1 (observing that household employment agencies “securle] positions

for applicants”); BRENDA CLEGG GRAY, BLACK FEMALE DOMESTICS

DURING THE DEPRESSION IN NEW YorRK City, 1930-40, at 5 (1993)

(discussing “|eJmployment agencies” during the Depression “whose

primary purpose was to help domestics find work during the thirties”). _

Moreover, commentators used these phrases in dis-

cussions that not only had no relevance to third-party

employment but which underscored domestic service

employment as a “household employment ... relation

between individual employer and employes... .” Eleanor

B. Johnson, Household Employment in Chicago, BULLETIN

OF THE WOMEN’S BUREAU, No. 106, at 2 (1933). See also

Jean Collier Brown, Reading List of References on House-

hold Employment, BULLETIN OF THE WOMEN’S BUREAU, No.

154, at vii (1937) (“Household employment is a relation

_ between individual employers and individual employees.”);

Correll, Standards of Placement Agencies for Household

Employees, at 1 (describing household employment as “a

personal relationship between employer and employee, an

individual bargain for employment”); Amey Watson,

Household Employment in Philadelphia, BULLETIN OF THE

WOMEN’S BUREAU, No. 93, at 46 (1932) (discussing section

on “Employers’ Labor Policies” in regard to “householders

who employ domestic workers”).*

* Historians of domestic service also consistently underscore the

personal and individual character of the employment relationship. See,

e.g., ELIZABETH CLARK-LEWIS, LIVING IN, LIVING OUT, at 100-13 (1994)

(describing the personal quality of the domestic service relationship in

connection with African-American household workers who migrated

from the South to work in Washington, D.C. during the 1910s and

1920s); EVELYN NAKANO GLENN, ISSEI, NISEI, WAR BRIDE: THREE

GENERATIONS OF JAPANESE AMERICAN WOMEN IN DOMESTIC SERVICE, at

153-64 (1986) (describing “Employer-Employee Relations” in domestic

service, in the context of Japanese American domestics, as a personal

relationship characterized by inequality); DAVID M. KATZMAN, SEVEN

Days A WEEK: WOMEN AND DOMESTIC SERVICE IN INDUSTRIALIZING

AMERICA, at 146-83 (1978) (describing the employing clas? in terms of

the mistress/servant relationship in the period from 1870-to 1920),

PHYLLIS M. PALMER, DOMESTICITY AND DIRT: HOUSEWIVES AND DOMES-

TIC SERVANTS IN THE UNITED STATES, 1920-1945, at 71-87 (1989)

(describing the hiring and supervision of domestic service employees by

(Continued on following page)

9

In short, the fact that House and Senate Committee

Reports borrowed from various DOL Reports and occa-

sionally used the phrase “private household workers” to

refer to domestic service employees should not be taken as

evidence that members of Congress were “not thinking

about the nature of the employer,” Pet. Br. at 36, or that

they were using the phrase so as to include third-party

employment. Indeed, to the contrary, House and Senate

Reports on the 1974 Amendments indicate that Congress

was centrally concerned about domestic service employers

who were individual households and/or family members,

and more specifically housewives. S. Rep. No. 93-690, at 20

(“This Committee is convinced that legislation ... with

respect to fair labor standards for domestics will be fol-

lowed by voluntary compliance on the part of most house-

wives.”); H.R. Rep. No. 93-913, at 33 (“[Domestic service

employees] have no appeal against the employer who calls

suddenly in the morning, or announces upon arrival, ‘We

won't need you, after al24:-H.R. Rep. No. 93-232, Ist

Sess., at 95 (1973) (minority views) (“Each of these newly

affected [household] employers ... would have to keep

records of hours worked on a regular basis, overtime, and

salaries paid. Do we really want to subject housewives to

possible criminal] penalties for failure to keep these records

accurately?”); 119 Cong. Rec. 24,797 (1973) (statement of

Sen. Dominick) (“Do we want to try to pass a law which is

housewives during the 1930s and 1940s); JUDITH ROLLINS, BETWEEN

WOMEN: DOMESTICS AND THEIR EMPLOYERS, at 156 (1985) (describing

domestic service as “a personal relationship between employer and

employee”); BONNIE THORNTON-DILL, ACROSS THE BOUNDARIES OF RACE

AND CLASS: AN EXPLORATION OF WORK AND FAMILY AMONG BLACK

FEMALE- DOMESTIC SERVANTS, at 8-9 (1994) (describing the domestic

service relationship as an individual employment relationship).

10

not going to be abided by by the householder, either in

terms of amount or in terms of reporting?”); id. (“It is

unrealistic to expect accurate recordkeeping. Nobody is

going to keep any records.... No housewife is going to

begin to do this kind of recordkeeping.”); id. (statement of

Sen. Javits) (referencing the number of housewives com-

plying with the Social Security Act with respect to domes-

tic service employees); id. at 24,798 (statement of Sen.

Dominick) (“Why in the world should the Government

keep putting on the private individual the onus of keeping

records after records and making reports after reports... ?”)

(emphasis added); id. at 24,799 (Statement of Mr. Wil-

liams) (noting the lack of respect accorded to domestic

service employees and stating “[t]hey are called ‘girl’ and

by their first names while they, themselves, must still

address their employers and their employer’s children as

‘ma’am’ or ‘sir’ or ‘Miss Jane’”); id. (“In lieu of fair wages,

[domestic service employees] are often given secondhand

clothing and leftover food.”); S. Rep. No. 93-300, 93rd

Cong., lst Sess. 121 (1973) (minority views) (“Because

some domestic workers are poorly paid, is no reason to

bring the Federal bureaucracy into the kitchen of the

American housewife.”).

Petitioners argue that excluding third-party employ-

ers from section 213(a)(15) would undermine Congres-

sional intent “‘to include within the coverage of the Act all

employees whose vocation is domestic service.’” Pet. Br. at

14 (quoting S. Rep. No. 93-690, at 20). Yet Petitioner fails

to appreciate that “domestic service employment” is

limited to the companionship services exemption. While

Petitioners are arguably correct that Congress did not

intend to create a distinction between domestic service

employment by households to provide companionship

11

services and companionship employment by “a family

member to help out another family member in the latter’s

home,” id. at 37, Petitioners are incorrect that interpreting

“domestic service employment” to exclude third-party

employers will lead to this result. This Court should not

hold that domestic service, as used in section 213(a)(15),

applies “only to homeowner-employed domestic work-

ers....” Jd. Instead, it should hold that such employment

does not apply to third-party employers; namely agency

employers that employ domestic service employees and

staff them in private homes.

This approach most clearly reflects the reality and

understanding of domestic service employment that

shaped Congressional intent. As previously noted, the

FLSA already provided a basis for coverage of third-party

employers if they satisfied the enterprise test. In addition,

even as one recognizes that the majority of all domestic

service employment was between an employee and the

employing household, there is no reason to think that by

“domestic service employment” Congress did not intend to

include other personal domestic service employment

relationships such as those where an employing family

member does not reside in the household where the

services are being performed.”

* In the instance of the severely disabled householder who needs

companionship services, cited by Petitioners and their amici, Pet. Br. at

38; Br. of National Association For Home Care & Hospice, Inc. at 6, the

requirement of domestic service employment in the companionship

exemption can be satisfied by simply having a family member employ

the companion as the legal guardian of the householder.

12

B. Congress Intended to Exclude Only Non-

“Bread-Winners” Who Work as Domestic

Service Companions

In crafting the companionship services exemption,

Congress appears to have taken comfort in the belief that

it would have few, if any, adverse economic consequences

for individuals performing such services. House and

Senate Reports observed that “[pleople who will be em-

ployed in the excluded categories are not regular bread-

winners or responsible for their families’ support.” S. Rep.

No. 93-690, at 20; H.R. Conf. Rep. No. 93-413, at 27; H.R.

Rep. No. 93-913, at 36. In today’s world, the group of home

care workers employed by third-party agencies who are

frequently classified under the FLSA as companions

jarringly defies this observation. The average home-care

worker is a low-income woman and a single mother of

children under the age of eighteen. See, e.g., STEVE

DAWSON & RICK SURPIN, DIRECT CARE HEALTH WORKERS:

THE UNNECESSARY CRISIS 12 (2001), available at http://

www.directcareclearinghouse.org/download/Aspen.pdf (com-

menting that the “typical direct-care worker is a low-income

woman, between the ages of 25 and 54, who is a single

mother”); ROBYN STONE, LONG-TERM CARE WORKFORCE

SHORTAGES: IMPACT ON FAMILIES 2 (2001), available at http://

www.bjbc.org/content/docs/LTC_Workforce_Shortages. pdf

(“Compared to the workforce in general, nursing home and

home health care aides are more likely to be non-white,

unmarried and with children under age 18 at home.”);

Nursing Workforce Recruitment and Retention of Nurses

and Nurse Aides Is a Growing Concern: Hearing Before the

S. Comm. on Health, Education, Labor & Pensions 107th

Cong. 22 (2001) (statement of William J. Scanlon, Director,

Health Care Issues), available at http://www.gao.gov/new.

items/d01750t.pdf (“Aides working in nursing homes and

13

home care are much more likely than other workers to be

uninsured, living below the poverty level, and receiving

public benefits such as food stamps and Medicaid.”). In

2003, the wages of home-care aides, when annualized for

full-time employment, were less than $17,000. BERNA-

DETTE WRIGHT, DIRECT CARE WORKERS IN LONG-TERM

CARE 2 (2005), available at http://www.hcbs.org/files/75/

3748/directcare.pdf (reporting annualized full-time em-

ployment earnings of $16,750 for personal and home-care

aides, and $18,200 for home-health aides). Interpreting

the companionship exemption to exclude third-party

employers of these workers who are often familial bread-

winners accurately reflects Congressional intent.

Il, OTHER FEDERAL EMPLOYMENT STATUTES

SUPPORT THE EXCLUSION OF DOMESTIC

SERVICE COMPANIONS EMPLOYED BY

THIRD PARTIES

Interpreting “domestic service employment” in the

FLSA’s companionship exemption to exclude third-party

employers also finds support in other federal employment

law statutes. Those statutes, including the Social Security

Act, the National Labor Relations Act, and the Occupa-

tional Safety and Health Act, have uniformly limited the

exclusion of domestics, whether express or implied, to

those workers employed on a personal] basis. Before the

Social Security Act was amended in 1950 to extend cover-

age to domestics, it excluded “Domestic Service in a

private home.” Social Security Act of 1935, § 210(b)(2). The

regulation defining domestic service under the original Act

made clear that the exclusion did not extend to employees

of third-party employers. The regulation defined “Domes-

tic Service” as “Services of a household nature performed

14

by an employee in or about the private home of the person

by whom he is employed.” 20 C.F.R. § 403.809 (1949).

Likewise, the current version of the Social Security Act

permits special treatment only to wages paid to “an

employee for domestic service in a private home of the

employer. . . .” 42 U.S.C. § 409(a)(6)(B) (2000).

Section 2(3) of the National Labor Relations Act

(NLRA) excludes from the definition of “employee” anyone

employed “in the domestic service of any family or person

at his home.” 29 U.S.C. § 152(3). The National Labor

Relations Board has defined the domestic service exclusion

so as to limit it to “‘employment on an individual and

personal basis.’” 30 Sutton Place Corp. & Local 32B-32,

Service Employees Int'l Union, 240 NLRB 752, 753 n.6

(1979) (quoting Success Village Apartments, Inc. v. Local

376, UAW, 397 A.2d 85, 87 (Conn. 1978)). See also Ankh

Serv., Inc., 243 NLRB 478, 480 (1979) (observing that the

exemption has been applied based “on the principals to

whom the employer-employee relationship ... runs and

not merely on the undisputably ‘domestic’ nature of some

of the services rendered”); Personal Touch Home Care,

Inc., Case No. 29-RC-9697 (2001), available at http://www.

nirb.gov/nirb/shared_files/decisions/dde/200 1/2-RC-22447.pdf

(rejecting the claim that the NLRA exempts third-party

home care employees as “domestic service” employees

under the Act).

The Occupational Safety and Health Act does not

exempt domestic service from coverage. However, DOL

regulations interpreting the Act do explicitly exempt

domestic service employment as a matter of policy.

29 C.F.R. § 1975.6. The relevant regulation states that

“individuals who, in their own residences, privately

employ persons for the purpose of performing . .. what are

15

commonly regarded as ordinary domestic household tasks,

such as house cleaning, cooking, and caring for children,

shall not be subject to the requirements of the Act with

respect to such employment.” Jd. Because DOL defines

employers of “domestic service” as those “individuals who,

in their own residences, privately employ persons,” the

exemption does not extend to third-party domestic service

employers. Jd. See also Peggie Smith, Aging and Caring

in the Home: Regulating Paid Domesticity in the 21st

Century, 92 Iowa L. REv. — (forthcoming 2007) (discussing

OSHA's relevance to domestic service employees).

°

CONCLUSION

The judgment of the United States Court of Appeals

for the Second Circuit should be affirmed.

Respectfully submitted,

JAMES REIF

\ GLADSTEIN, REIF

& MEGINNISS, LLP

817 Broadway, Floor 6

New York, New York 10003-4709

(212) 228-7727

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