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

19

No. 06-593

IN THE

Supreme Court of the United States

LONG ISLAND Care Al Home, Lip. ¢ 1 at..

Petitioners.

EVELYN COKE,

Respondent

On Writ oF CERTIORARI

TO THE Unrrep STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Brite FOR THE URBAN Justice CENTER, BRENNANCCENTER FOR

Jisrick, AStAN Americas Lecat DEFENSE AND EpucCation Fuxp,

Mexican AMERICAN LeGat Derense anv Eptcarionar Fusp,

Prerro Rican LeGat DEFENSE AND Epucation FuNb, National

Wowves’s Law Center, NATIONAL PARTNERSHIP FOR WOMEN AND

Faxes, LeGat Momentroem, WasninGron Lawyers’ COMMITTEE

FOR Civil RIGHTS AND URBAN AFFAIRS AND AMERICAN Civil

Linerties Unton As Avict CURE SUPPORTING RESPONDENT

Motty K. BIKLEN Davip fT. GOLDBERG

RayMonD H. BRESCIA Counsel of Record

Urban Justice Center 99 Hudson Street, 8th FI.

666 Broadway, 10" FI. New York, NY 10013

New York, NY 10012 (212) 334-8813

Pact K. Sons

RaiksH D. NAYAK

Brennan Center tor Justice

at NYU School of Law

lol Avenue of the Americas

New York, NY 10013

Attorneys for Amict Curiae

TABLE OF CONTENTS

I ox. ctvsesecnnkecdoversesceneess ii

IED 5 6. on 00400454 5000s0anennedes l

PEE Sb nen dans MOREE N ERED OR CNCERGKORNEKOUN l

Pe ED 0 cen ncnsssnevdccaerenses |

2. The Home Health Care Industry ............... 7

i EEE « cu ccdaciceseendvsdiensd 9

IIE sb aves cuneusseeecvecest 10

DET Wee chasackdeaeneeinadebhaneteaves 12

I. The Labor Department’s Rule Purporting To

Relieve All Third Party Employers Of

Their FLSA Duties Is Not A Lawful Exercise

Of Any Power Delegated By Congress ........... 12

II. Exemptions With Respect To Domestic Workers

Must Be Construed In Light Of The Historic,

Remedial Purposes Of The 1974 Amendments ..... 21

III. No Legitimate Policy Of The FLSA Is Served By

Allowing Commercial Employers To Pay Home

Health Care Workers Below-Minimum Wages ..... 26

PPP TTC TTT eT TTT TTT 30

TABLE OF AUTHORITIES

CASES

A.H. Phillips, Inc. v. Walling,

Be es OTE oc sec vccccccccoceves 14, 21, 22

Adams Fruit Co. v. Barrett, 494 U.S. 638 (1990) ...... 15

Arnold v. Ben Kanowsky, Inc.,

idee vices taeseseowens 21, 22

Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002) ....21

Barnhart v. Walton, 535 U.S. 212 (2002) ............ 15

Board of Govs., Fed Res. Sys. v. Dimension Fin. Corp.,

Pe ee EE yi oc boswwecveskenwnaeenses 15

Bowen v. Georgetown Univ. Hosp.,

PP a + dcenvasndecdbdsesesnceds 15

Brennan v. Arnheim & Neely, Inc.,

PR cS iucdebenskbacusteces 14, 29

Brennan v. Veterans Cleaning Service, Inc.,

462 F.2d 1362 (S@a Cie. 1973) . 0... cc ccccecccecs 16

Chao v. Mallard Bay Driling, Inc.,

Se EE 6s. oti eine nekeesededhewes 17

Chisom v. Roemer, 501 U.S. 380 (1991) ............. 17

Christensen v. Harris County, 529 U.S. 576 (2000) .... 10

Circuit City Stores, Inc. v. Adams,

er ied bocce ku eesneeiees 21

Cook County v. U.S. ex rel. Chandler,

538 U.S. 119 (2003)...... ipessteesssatkbvawas 17

Corning Glass Works v. Brennan,

Be ee Ss Kone d Kuk deed iveacusausces 18

Director, Office of Workers Compensation Programs

v. Perini North River Assoc., 459 U.S. 297 (1983) ..17

FDA v. Brown & Williamson Tobacco Corp.,

SII bs tind donccacuedewedawenes 15

Garcia v. San Antonio Metro. Trans. Auth.,

oS eee 5,29

Gonzales v. Oregon, 126 S. Ct. 904 (2006) ........... 18

Gustafson v. Alloyd Co., 513 U.S. 561 (1995) ......... 14

Hoffman-LaRoche, Inc. v. Sperling,

Se EES nd-nGuudeeetaensenkesuesus 22

Homemakers Home & Health Care Servs., Inc. v.

Carden, 538 F.2d 98 (6th Cir. 1976) ............. 16

Jefferson v. Hackney, 406 U.S. 535 (1972) ........... 23

Koons Buick Pontiac GMC, Inc. v. Nigh,

ee 17

iil

Maryland vy. Wirtz, 392 U.S. 183 (1968) ............. 28

Massachusetts v. Morash, 490 U.S. 107 (1989) ....... 18

MCI Telecom. Corp. v. AT&T, 512 U.S. 218 (1994) .... 18

Mitchell v. Kentucky Fin. Co., 359 U.S. 290 (1959) 22

National League of Cities v. Usery,

eee eae wae ew wee 29

Powell v. U.S. Cartridge Co., 339 U.S. 497 (1950) .. .2, 18

Ragsdale v. Wolverine World Wide, Inc.,

BF ee ee re rane 14

Robinson v. Shell Oil Co., 519 U.S. 337 (1996) ....... 21

Shore Club Condo Ass’n v. NLRB,

408 F.3d 1336 (11th Cir. 2005) ................. 14

Tony & Susan Alamo Found v. Sec’y of Labor,

as sen ceassdneenducanane 14,27

United States v. Nordic Village, Inc.,

| CS Ee err 21

United States v. Universal C.I1.T. Credit Corp.,

I io boca dedees da decsenvawes 18

iV

STATUTES

cit tb PPPPPrerriTeTTTTirrT Tie 15

i | rr errr rl re re rr rT 1,6

SP Ute GB UOED cccccccscvece ‘hivedeevepaenenen 4

SP Uae BED sac nvcnnccoscesetakeswecnwes 4,13

29 U.S.C. ROD pccesenvesenssecacweyusneeuane 2, 20

BP Un BEERS cecccccccsvnsecovnenewsasecwaus 6

yk i} SP Prrrrrrerrrrer eT rrr ere rrr. 2, 20

SP Ue DOPED 60 keds ccdvccedecscsiasnessenes 6

BP ae B SOPEEEED co vc ccconchvduswadénnns passim

Fair Labor Standards Act of 1938, ch. 676 .......... 1,2

Fair Labor Standards Amendments of 1957,

PK Gi WL GND 4 dtd snncenccesesesauamaaes 19

Fair Labor Standards Amendments of 1961,

. SR Yt err 5,15

Fair Labor Standards amatnain of 1966,

PU. &. FE GS © Ge nos ccnccvsncesvecees 5,15

Fair Labor Standards Amendments of 1974,

PU. Gs SS SUI 6 6.05.0 0d ennenasaneueanen passim

Fair Labor Standards Amendments of 1989,

Pub. L. No. 101-157 § 3.2... 0.0.0.0... 0.00 nee 4,16

National Labor Relations Act, ch. 372,

CE 2

Social Security Act, ch. 531, tit. IT, § 210(b),

cere eieeeeeedesenecessceess 2

Social Security Amendments of 1950, Pub. L.

No. 81-734, 64 Stat. 514(1950) ..............4.. 4

FEDERAL LEGISLATIVE MATERIALS

ee ea c cc bienteesns passim

S. Rep. No. 75-884... 0... c cece. Sd !

S. Rep. No. 89-1487... . cece cece cece ‘anval

S. Rep. No. 93-300 EE ETS ee 5,19

eS ‘nanan 19

EE 20, 22

82 Cong. Rec. 1404 (1937) . 2... ccc cece cece ce cuces 3

118 Cong. Rec. 11,393 (1972) .. 0.2 0c cece cece e eee 5

119 Cong. Rec. 18,341 (1973)... 0... cc cece eee eee. 5

119 Cong. Rec. 24,797 (1973) .........ccccen. 5, 20, 29

vi

So GA, CUED. SA POP RESUS 0 ce diwccccccosewscess 24

119 Cong. Rec. 24,800 (1973) ....... cece eee sceees 25

119 Cong. Rec. 24,801 (1973) .............45. 6, 19, 27

Hearings on S. 1130 Before the Senate Comm.

On Finance, 74th Cong., Ist Sess. (1935) bivennt bie 4

Joint Hearing Before the Senate Comm. On

Education and Labor and the House Comm.

On Labor, 75th Cong., Ist Sess. (1937) ............ 4

Testimony of William J. Scanlon, Director,

Health Care Issues, G.A.O., Nursing Workforce,

Recruitment and Retention of Nurses and Nurse

Aids Is a Growing Concern: Testimony Before the

Senate Committee on Health, Education, Labor

and Pensions (released May 17,2001) ............ 8

FEDERAL ADMINISTRATIVE MATERIALS

I onc wekaeeanies 13, 19

I ons cin sciccnduanenedienss passim

REN Ae Sea eae 6, 13

SII BOD oi dvk ci cexevecciccccccssens 6,13

I I oo cv ic ncasccdasescons 6, 9, 13, 28

29 CF.R. § 552.101(a) 0... cece cece eee eee ee 7,15

Vii

I I isons ccdéaccincccncers 14

on kos chbendecccnnséenes passim

PE EEE oc vocndasesesessesece 7, 16

Pe OE CHP ENEUED co cccccccecccvcsvcessece 6,7

66 Fed. Reg. 5,485 (2001) emenneseus seeebeeusee 6, 16

SCs CD PEED ccccccnsesecuescentcest oul

EEE ctocecdncccuncvesasesads 8

Wage and Hour Opinion Letter 147,

1971 WL 33084 (Nov. 17, 1971) ................ 16

Wage and Hour Opinion Letter 174,

1972 WL 34917 (Aug. 20, 1972) ................ 16

U.S. Dept. of Labor, ete Outlook

EY cncoccnsenscestenessesees 8, 28

OTHER AUTHORITIES

A. Badger, The New Deal (1989) ................... 2

C. Daniel, Bitter Harvest (1981): A History of

California Farmworkers, 1870-1941 .............. 4

Goluboff, The Thirteenth Amendment And

The Lost Origins of Civil Rights,

ind HEED on cuevebucdcckencevsed 4

Vili

J. Jones, Labor of Love, Labor of Sorrow (1995) ....... 2

D. Katzman, Seven Days a Week: Women and Domestic

Service in Industrializing America (1981) ....... 2,3

Katznelson, et al., Limiting Liberalism:

The Southern Veto in Congress, 1933-1950,

3. 8 B® fy ee 23

Linder, Farmworkers And The Fair Labor

Standards Act, 65 Tex. L. Rev. 1335 (1987) . . 3, 23, 24

Montgomery, et al., A Profile of Home

Care Workers from the 2000 Census,

45:5 Gerontologist 593 (2005) ................... 7

P. Palmer, Domesticity and Dirt: Housewives and

Domestic Servants in the United States,

adn tttcdensdenceviviescinns 3,24

Falmer, Outside The Law: Agricultural and Domestic

Workers Under the Fair Labor Standards Act, ;

FORE ee ED ccconsvcesesccccecss 2,4

M. Poole, The Segregated Origins of

ee 23

Quadagno, The Transformation of Old

EE cciccheuddbeunesesessecsunns 2

Shabecoff, To Domestics, A Minimum Wage

Is a Raise, N.Y. Times, June 6, 1973 ............. 24

H. Sitkoff, A New Deal for Blacks (1978) ......... 3, 23

1X

Smith, Regulating Paid Household Work: Class,

Gender, Race, and Agendas of Reform,

48 Am. U. L. Rev. 851 (1999) ................... 3

Tolchin, Mrs. Chisholm Led Fight for Domestics’

Base Pay, N.Y. Times, June 21, 1973 ............ 25

Univ. of Calif. at San Francisco, Ctr. for California Health

Workforce Studies, An Aging U.S. Population & The

Health Care Workforce (2006) ..............0000. 7

INTEREST OF AMICI CURIAE

Amici are ten non-profit legal advocacy organizations from

across the nation that share a longstanding commitment to

promoting civil rights, economic opportunity, and fair treatment

in the workplace for all — especially women, people of color

and immigrants. See Appendix (describing amici).

Amici have a strong interest in seeing that the Fair Labor

Standards Act is correctly interpreted here, so that company-

employed home health care workers — typically, African-

American and Latina women working to support families — are

not denied modest, but vitally important, congressionally-

intended wage protections.

STATEMENT

This case concerns whether a provision of the Fair Labor

Standards Amendments of 1974, Pub. L. No. 93-259, relieved

a commercial enterprise of its obligation to pay the federal

minimum wage and overtime premiums to employees who

provide health care in customers’ homes — or empowered the

Labor Department to legislate such an exemption.

1. Statutory Background. Congress enacted the Fair Labor

Standards Act in 1938, responding to President Roosevelt’s call

for a law “insuring to all our able-bodied working men and

women a fair day’s pay for a fair day’s work,” see S. Rep. No.

75-884 at 2. Based, inter alia, on a congressional finding that

low wages and long work weeks are “detrimental to the

maintenance of the minimum standards of living necessary for

health, efficiency, and general well-being of workers,” 29

U.S.C. § 202, the law requires that employers pay covered

individuals — originally those employees “engaged in commerce

or in the production of goods for commerce,” Fair Labor

Standards Act of 1938, ch. 676, §§ 6(a), 7(a) — a minimum

“No counsel for any party authored any part of this brief, and no person or

entity other than Amici or counsel made a monetary contribution toward its

submission. The parties have filed blanket consents to amicus curiae briefs.

2

wage and a premium for overtime work. See 29 U.S.C.

§§ 206, 207.

Although “[t]he Act declared its purpose in bold and

sweeping terms [and] [i]ts scope was stated in terms of

substantial universality,” Powell v. U.S. Cartridge Co., 339

U.S. 497, 516 (1950), African-American workers were largely

excluded from its protections. At a time when 65 percent of

black Americans worked in either agriculture or domestic

service, neither category of employment was covered.

Agriculture was expressly exempted, see 1938 ch. 676,

§ 13(a)(6), and domestic service fell outside the stringent

coverage test, which had been initially drafted in the shadow of

the Court’s restrictive understanding of the federal Commerce

Clause power. See Palmer, Outside The Law: Agricultural and

Domestic Workers Under The Fair Labor Standards Act, 7 J.

POLICY HIST. 416, 417 (1995).

This pattern of coverage was of a piece with that in other

labor and social reform legislation enacted during the New

Deal. In order to satisfy the staunch segregationists who

controlled the levers of congressional power at the time, explicit

exclusions for agricultural and domestic service workers were

included in the National Labor Relations Act, ch. 372, § 2(3)

(1935), and the Social Security Act, ch. 531, tit. II, § 210(b)(1)-

(2) (1935), and New Deal relief legislation was carefully crafted

and administered to ensure that decisions about assisting black

citizens would be made by local officials in the South. See A.

BADGER, THE NEW DEAL 252-53 (1989); J. QUADAGNO, THE

TRANSFORMATION OF OLD AGE SECURITY 115-16 (1988); H.

'By 1940, 60 percent of all black female workers were domestic servants, as

compared to only 10 percent of all white women workers. J. JONES, LABOR

OF LOVE, LABOR OF SORROW 200 (1995). This disproportion was even

larger in the South. See D. KATZMAN, SEVEN DAYS A WEEK: WOMEN AND

DOMESTIC SERVICE IN INDUSTRIALIZING AMERICA 290-91 (1981); id. at 185

(“In the South, domestic service was a complex system that was part of the

racial caste structure”).

3

SITKOFF, A NEW DEAL FOR BLACKS 52 (1978).’

In addition to accommodating prevailing racial prejudices,

these laws’ treatment of domestic service workers reflected

stereotypical assumptions about the nature of household work

— that the relationship between employer and “servant” was

“personal,” rather than commercial, in character; that

employment within a household was not “real,” productive

work; and that women did not work to support their families.

See P. PALMER, DOMESTICITY AND DIRT: HOUSEWIVES AND

DOMESTIC SERVANTS IN THE UNITED STATES, 1920-1945 at 12

(1989); Smith, Regulating Paid Household Work: Class,

Gender, Race, and Agendas of Reform, 48 AM. U.L. REV. 851,

880-918 (1999); KATZMAN, supra at 265-77.

The discriminatory treatment provoked strong opposition

from civil rights groups. Dean Charles Houston testified on

Even these exclusions did not appease the most stalwart segregationists,

who objected to the principle that covered black and white workers would

receive the same wage. Speaking against the FLSA, Representative J. Mark

Wilcox of Florida stated:

Then there is another matter of great importance in the South, and that

is the problem of our Negro labor. There has always been a difference

in the wage scale of white and colored labor. So long as Florida people

are permitted to handle the matter, this delicate and perplexing problem

can be adjusted * * * * You cannot put the Negro and the white man on

the same basis and get away with it. Not only would such a situation

result in grave social and racial conflicts but it would also result in

throwing the Negro out of employment and in making him a public

charge * * * * This is just another instance of the well-intentioned but

misguided interference of our uninformed neighbors in a delicate racial

problem that is gradually being solved by the people of the South.

82 Cong. Rec. 1404 (1937) (quoted in Linder, Farmworkers and the Fair

Labor Standards Act: Racial Discrimination in the New Deal, 65 TEX. L.

REV. 1335, 1374-75 (1987)). Cox concluded by likening the law to pending

federal anti-lynching legislation, i.e., a “political goldbrick for the Negro.”

*Thus, State employment and welfare statutes, which were not subject to

Commerce Clause constraints, often exempted domestic workers, and even

labor laws passed to protect women workers drew a line between industrial

and domestic workers. See Smith, 48 Am. U. L. REV. at 853-55 & n. 15.

4

behalf of the NAACP at the congressional hearings concerning

the Social Security Act that statutory exemptions for farm

workers and domestics made that law “look[] like a sieve with

the holes just big enough for the majority of Negroes to fall

through,” Hearings on S. 1130, Sen. Finance Comm., 74th

Cong., Ist Sess. 644 (1935); and a witness representing the

National Negro Congress at the 1937 FLSA hearings

complained about the exclusion of “Negro domestic and

agricultural [workers] — representing the bulk of Negro labor.”

Joint Hearings Sen. Educ. and Labor Comm. & House Labor

Comm., 75th Cong., Ist Sess. 571 (1937). These groups

worked tirelessly afterward to attract the attention of the various

branches of the government to the dire economic straits of and

intolerable employment conditions of domestic workers, see

Goluboff, The Thirteenth Amendment And The Lost Origins of

Civil Rights, 50 DUKE L. J. 1609, 1678 (2001); Palmer, Outside

The Law, supra, at 427-28, persuading Congress to amend the

Social Security Act in 1950 to require households to make

social security payments on behalf of their domestic employees.

See Pub. L. 81-734.

Amendments to the FLSA enacted in the 1960s brought

meaningful numbers of employees in domestic service within

_ that statute’s protections for the first time. By extending

minimum wage and overtime protections to all individuals

“employed in an enterprise” of a certain size, 29 U.S.C.

* While the most politically powerful opponents of racial equality in federal

law were Southerners, domestic work in other parts of the country was

considered the province of women from other racial backgrounds, see

Palmer, Outside the Law, supra, at 420 & n.13, and the exclusionary

provisions drew support from Western agribusiness interests, whc employed

a predominantly Mexican-American workforce, id See C. DANIEL, BITTER

HARVEST: A HISTORY OF CALIFORNIA FARMWORKERS, 1870-1941 at 261

(1981) (legislation helped “transform[] farmworkers into * * * what was for

all practical purposes a rural caste”). When the FLSA was amended in 1966

to provide minimum wages for farm workers, Congress recognized that

immigrant laborers were the largest and most vulnerable segment of this

workforce. S. Rep. No. 89-1487 (supp. views of Sens. Williams and Javits).

5

§ 203(r), (s), the 1961 and 1966 Amendments, Pub. L. Nos. 87-

30 § 2 and 89-601 § 102, ensured that domestic service

workers employed by substantial firms and agencies, rather than

individual households, would be covered.”

Domestic workers employed by households were finally

granted FLSA protection under the 1974 Amendments, see Pub.

L. 93-259 § 7, which also brought numerous other categories of

workers within the Act’s coverage.° Extension of coverage to

domestic service employees was enacted only after substantial

debate. An amendment removing a similar provision from a

predecessor had been narrowly approved by the House in 1972,

see 118 Cong. Rec. 11,393 (1972), and opponents of extension

expressed doubt about whether the Commerce Clause

empowered Congress to regulate employees of households and

complained that coverage would impose intolerable

administrative burdens on “housewives.” See, e.g., S. Rep.

No. 93-300 at 121 (minority views). Opponents also objected

to treating services provided occasionally or informally by

teenagers, friends, and neighbors, as equivalent, for FLSA

purposes, to the kind of formal, bread-winning employment

relationships the Act was meant to govern. See, e.g., 119 Cong.

Rec. 24,797 (1973) (Sen. Dominick).

Highlighting statistics showing that almost all domestic

service workers were female and most were either African

American or members of disadvantaged immigrant groups,

proponents of extended coverage invoked considerations of

racial justice and gender equality. See 119 Cong. Rec. 18,341

(1973) (Rep. Griffiths) (““Women, especially black women,

*The 1966 Amendments also limited the long-objected-to agricultural worker

exclusion and increased by 7.2 million the total number of workers entitled

to FLSA protection. See S. Rep. No. 89-1487 at 3.

*In addition to extending coverage for governmental employees, see Garcia

v. San Antonio Metro. Trans. Auth. , 469 U.S. 528 (1985), the law eliminated

exemptions for, among others, employees of telegraph agencies, seafood

canners, nursing homes, bowling establishments, cotton gins and sugar

processors, see Pub. L. 93-259 §§ 8-20.

6

simply have not had a fair shake in the job market. It is time

they were given their due”). They responded that the record-

keeping was comparable to that already required of household

employers under the Social Security Act and disclaimed interest

in extending the FLSA to the kinds of marginal cases raised by

opponents, agreeing that neither casual babysitters nor

individuals paid to spend a few hours in the home of an aged

neighbor, “elder sitters,’ would be covered under the new

provision. See 119 Cong. Rec. 24,801 (1973) (statements of

Sens. Williams and Burdick).

As enacted, Section 7 of the 1974 measure included a

congressional finding, codified at 29 U.S.C. § 202(a), “that the

employment of persons in domestic service in households

affects commerce,” along with new subsections to the minimum

wage and overtime provisions, see §§ 206(f), 207(/). It also

provided that individuals “employed on a casual basis in

domestic service employment to provide babysitting services or

employed in domestic service employment to provide

companionship 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),” 29

U.S.C. § 213(a)(15), would remain uncovered. The Act did not

amend or revisit the “enterprise” coverage provisions, apart

from adding language to section 3(r)(2)(c), reflecting newly-

expanded coverage for public employees.

In 1975, DOL issued rules for the newly added coverage,

see 29 C.F.R. Pt. 552, announcing that “[t}he definitions

required by section 13(a)(15) are contained in §§ 552.3, 552.4,

552.5 and 552.6,” 40 Fed. Reg. 7,404, 7,405. Section 552.6

defines the term “companionship services.” Section 552.3

states that “[a]s used in section 13(a)(15) of the Act, the term

domestic service employment refers to services of a household

nature performed by an employee in or about a private home

(permanent or temporary) of the person by whom he or she is

employed.” See also 29 C.F.R. § 552.191(a).

7

Included among the “interpretations and statements of

policy” in the DOL’s final Federal Register notice was a newly-

worded provision, 29 C.F.R. § 552.109(a), declaring that “by

virtue of section 13(a)(15),” third-party employers of workers

providing companionship services — including firms already

covered under the Act’s “enterprise” provisions — need not pay

these employees the federal minimum wage or comply with the

Act’s overtime pay provisions. The notice acknowledged that

the agency’s originally-proposed version had taken the precisely

opposite approach, ie., that individuals who provide

companionship services in the home as employees of a firm

“qualify[ing] as a covered enterprise under Sections 3(r) and

3(s)(1) of the FLSA” would remain protected. See 39 Fed. Reg.

35,385 (1974). By way of explanation, DOL quoted the

statute’s reference to “‘any employee,” 40 Fed. Reg. 7,405

(quoting § 213(a)(15)), and described excusing these enterprises

from FLSA obligations as “more consistent with the statutory

language” and with “prior practices concerning other similarly

worded exemptions.” /d.

2. The Home Health Care Industry. As government

statistics and the briefs of other amici attest, for a large and fast-

growing number of Americans, the home care of today is

largely provided by home health care workers employed by

substantial business enterprises. An estimated 62 percent of

home health care aides work for the thousands of for-profit

companies in the field, see Montgomery, et al., A Profile of

Home Care Workers from the 2000 Census: How It Changes

What We Know, 45:5 GERONTOLOGIST 593, 597 (2005).

As with other forms of domestic service, home health care

work is performed by a labor force that is overwhelmingly

female, with women from racial and ethnic minority

backgrounds disproportionately represented. See Univ. Cal.

San Francisco, Ctr. for Cal. Health Workforce Studies, An

Aging U.S. Population & The Health Care Workforce (2006)

Table B2 (89 percent of home health care workers are female;

8

34 percent are African American; 18 percent are Latina and

20.4 percent are immigrants). Many of these women are heads

of households, with responsibilities- for young children (and

often for their own aging parents). See Testimony of William

J. Scanlon, Director, Health Care Issues, G.A.O., Nursing

Workforce, Recruitment and Retention of Nurses and Nurse

Aides Is a Growing Concern: Testimony Before the Senate

Committee on Health, Education, Labor and Pensions 22

(released May 17, 2001) (“Scanlon Testimony ”).

The work responsibilities of home health aides are stressful,

physically demanding — yielding high rates of occupational

injury — and often unpleasant. In addition to “duties, such as

emptying bedpans and changing soiled bed linens,” U.S. Dept.

Labor, Occupational Outlook Handbook 2006-2007, at 399,

workers often must travel to multiple client homes in a single

work day, and are called upon to provide services to individuals

who are “abusive, depressed, or otherwise difficult” and

balance conflicting demands of clients, agency employers,

medical professionals, and clients’ family members. /d.

Earnings of home care workers “remain among the lowest

in the service industry,” 66 Fed. Reg. 5,483 (Jan. 19, 2001); see

Occupational Outlook Handbook at 353, 400. Median earnings

for all home health care workers were $12,265 in 2001, Scanlon

Testimony at 24 Table 3, and median earnings for those

working on a full-time, full-year basis were below the federal

poverty level for a family of four, id.; see 66 Fed Reg. 10,695

(H.H.S. poverty guidelines 2001). Large numbers of home

health worker families receive food stamps, Scanlon Testimony

at 22, and they receive Medicaid at much higher rates than other

workers, id. at 13. As with others in domestic service, few

home health workers receive retirement or other employment

benefits; they have few opportunities to advance into higher-

paying, higher status work; and they lack amenities and

protections available to those who work in more conventional

commercial work environments.

9

3. Proceedings Below. Respondent Evelyn Coke, a home

health care worker, filed this suit against her former employer

~ a for-profit corporation employing approximately 40 home

health aides — alleging that they violated the FLSA by paying

her less than minimum wage and failing to pay extra

compensation for overtime work. See J.A. 21 (Complaint); id.

19-20 (petitioner satisfied requirements for FLSA enterprise

coverage). The employers, citing the Labor Department’s

§ 552.109(a) interpretation, asserted that Ms. Coke’s

employment was exempt under § 213(a)(15)-

After the district court sustained that defense, Pet. App. 46a,

the Court of Appeals reversed. The court first held that the

DOL “interpretation” was not entitled to judicial deference —

both because the agency had not in fact exercised its

congressionally-delegated power to “define and delimit” the

statutory exemption in issuing it and because the rule conflicts

squarely with the provision, § 552.3, that the Labor Department

did promulgate in exercise of those legislative rulemaking

powers. Finding the agency’s explanation of its action ignored

both this conflict and “the plain language of the statute,” Pet.

App. 32a, the court held that it lacked even the power to

persuade, and was therefore unenforceable.’

The Second Circuit reaffirmed this conclusion, after this

Court directed it to reconsider the judgment in light of an

intervening DOL “Advisory Memorandum.” Pet. App. 3a. That

age. cy policy statement was not itself owed Chevron deference,

the court reasoned, and the general rule favoring agency

interpretations in cases of regulatory ambiguity did not support

a different outcome. The Memorandum’s-claim — that the

regulatory phrase “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.” 29 C.F.R. § 552.3 (emphasis in

’ The Court of Appeals affirmed the district court’s dismissal of

Respondent’s facial challenge to the “companionship” regulation, § 552.6,

Pet.App. 15a-22a. s

10

opinion) was “ambiguous” and could be “interpreted” to mean

“services performed by an employee [of an enterprise] in or

about a private home” — was, the court concluded, itself

untenable. Pet. App. 5a (citing Christensen v. Harris County,

529 U.S. 576, 588 (2000)).

SUMMARY OF ARGUMENT

_ The Court of Appeals properly rejected the employers’

claim of FLSA exemption. As its decisions recognized, a

necessary predicate for judicial deference to agency law-making

is lacking here because the Department did not in fact exercise

its delegated authority in issuing its third-party employer policy.

And as respondent emphasizes, the efforts of petitioners and the

government to rehabilitate DOL’s 1975 regulatory process (and

their highly abstract quarrels with the Second Circuit’s

discussion of Chevron) cannot overcome a critical fact: that

§ 552.3, a DOL regulation that was lawfully and

unambiguously promulgated under the § 213(a)(15) authority,

plainly rejects the notion that agency-employed health care

workers may be paid less than minimum wage.

But petitioners’ argument suffers from an even more

fundamental problem. It is axiomatic that even the most “self-

conscious” exercise of administrative lawmaking still requires

proof that Congress intended to confer the authority claimed.

The policy at issue here fails at that threshold. The power

petitioners assert for the Labor Department is not the familiar

one of marking the boundary between those newly covered

domestic service employees and those who, by virtue of an

exception, would remain uncovered. Rather, because (as all

parties here recognize) Congress had already extended FLSA

protection to companions and other domestic service employees

in “enterprise” employment, they read § 213(a)(15) as

delegating power to remove coverage from employees who

were already entitled to the minimum wage and overtime.

As this Court’s statutory interpretation cases make clear, it

makes little sense to construe an amendment adopted to expand

1]

a statute’s reach as having effected (or authorized) a contraction

in coverage. And what is implausible in the abstract becomes

utterly untenable when the statute identified as the source of

agency power here — the 1974 Amendments ~ is examined.

The text, structure, and history of that enactment preclude

reading § 213(a)(15) as authorizing withdrawal of FLSA

coverage for previously protected workers. Congress’s only

aim with respect to domestic service workers was to extend

coverage to those whom the Act had previously left out, and it

intended § 213(a)(15) as setting an outer limit on the most far-

reaching applications of that extension, with the required DOL

regulations laying down the precise metes and bounds. There

simply is no evidence of some freestanding authorization to

exempt large, profit-making employers whose economic

activities are at the heartland of Congress’s legislative

jurisdiction. Even the sentiments expressed by ardent

opponents of “domestic service” coverage confirm this

understanding: these legislators invoked the need to protect the

interests of “private households,” not businesses, and no Act

opponent proposed revisiting, let alone repealing, enterprise

coverage for firms providing domestic services.

Petitioners’ only real response is a curious claim that

invalidating § 552.109(a) would itself precipitate a coverage

gap, leaving domestic service workers whose employers have

not attained the “enterprise” threshold without congressionally-

intended protections. But this “danger” (which was not even

mentioned by the agency when it acted in 1975 or 2002) is a

chimera. This case concerns only the meaning of the § 213

exemption — not the statute’s coverage provisions. If, as all

parties appear to agree, Congress meant for all (non-companion,

non-babysitter) domestic employees to be paid the minimum

wage, no principle of statutory construction or administrative

law would require DOL to adopt an interpretation contrary to

that intent. ~

The reasons relied on below and general statutory

12

interpretation principles fully suffice to render the DOL policy

unenforceable, but the jarring inconsistency between the

administratively-created third-party exemption and the policy

judgments and purposes reflected in the FLSA — and the 1974

Amendments, in particular — are further grounds for rejecting

§ 552.109(a).

The rule petitioners ask the Court to approve — which seeks

_to use power conferred in legislation that reached inside the

household to safeguard vulnerable workers to relieve

commercial enterprises of a preexisting obligation to pay

minimum wages — is unreasonable on its face, and it is

especially so in light of the distinct and special concerns that led

Congress to act in 1974. In cases interpreting the FLSA, this

Court has repeatedly and properly highlighted the statute’s

“remedial” character. The purposes of the 1974 coverage

Amendments were also “remedial” ina further sense. Congress

viewed them not only as improving the material well-being of

domestic service employees and their families, but as a

conscious recognition of the equal status of these minority

women and of the full dignity of their work. Against this

background, petitioners’ “policy” arguments for the rule — that

paying sub-minimum wages to direct care workers would help

keep health care costs down or that giving effect to the principle

reflected in § 552.3 will abridge their “freedom” to work long

hours without overtime pay — only serve to highlight, its

incompatibility with the FLSA.

ARGUMENT

I. The Labor Department’s Rule Purporting to Relieve All

Third Party Employers of Companions of Their FLSA

Duties Is Not a Lawful Exercise of Any Power Delegated

By Congress

Petitioners argue that the policy denying coverage to all

workers providing companionship services, even those

employed by “enterprises” within the meaning of § 203(s)(1),

represents a valid, legally binding exercise of authority

13

conferred by the 1974 Act. This argument fails, however,

because (1) the DOL did not in fact exercise its rule-making

authority in issuing § 552.109(a) and, more important, (2) the

1974 Act gave it no such authority to withdraw FLSA coverage

from workers Congress had acted to protect.

As the Second Circuit explained, there is no need to decide

whether an exemption like the one on which petitioners rely

lawfully could have been adopted pursuant to the § 213(a)(15)

delegation, but see infra, because it is clear that the agency

interpretation was not in fact “‘promulgated in the exercise of

that authority.’” Pet. App. 26a (quoting United States v. Mead

Corp., 533 U.S. 218, 226-27 (2001)). And as respondent shows

(Br. 24-34), petitioners’ efforts to construct a revisionist

account of the 1975 agency proceedings — and their academic

arguments about when Chevron deference does and does not

attach — depend on the Court’s ignoring this central fact: that

the Department did explicitly (and properly) take up the

responsibility of “defin[ing] and delimit[ing] the * * * terms”

at issue here, when it promulgated § 552.3. See 29 C.F.R.

§ 552.2(c) (“The definitions required by section 13(a){15) are

contained in §§ 552.3, 552.4, 552.5 and 552.6”). The express

terms of that regulation respect the distinction between

companions employed by households and those performing

services in households in the employ of third parties: “As used

in section 13(a)(15) of the Act, the term ‘domestic service

employment’ refers to services * * * performed * * * in or

about a private home * * * of the person by whom he or she is

employed.” As the decision below and respondent’s brief both

highlight, petitioners’ extravagant claims for § 552.109(a) must

be evaluated — and rejected — in light of the universal agreement

that § 552.3 does have the “force of law,” Pet. Br. 10.°

*Nor is the analysis affected in any way by the grant of authority to

“prescribe necessary rules, regulations, and orders with regard to the

amendments made by [the 1974] Act.” Pub. L. 92-259, § 29(b). That

provision does not make § 552.3 less valid or binding, nor does the generic

grant mitigate the fundamental, substantive defect in § 552. 109(a) discussed

14

Even leaving § 552.3 aside, the broad “interpretation” of

§ 213(a)(15) advanced in § 552.109(a) would be deeply suspect.

Even employment statutes that include express exemptions

generally do not allow otherwise-covered, third-party employers

to stand in their (exempt) customers’ shoes. See, e.g., Shore

Club Condo. Ass'n v. NLRB, 408 F.3d 1336, 1340 (11th Cir.

2005) (condominium association could not rely on NLRA’s

exclusion of “domestic employees” to defeat claims by its

employees providing housekeeping services); see also Brennan

v. Arnheim & Neely, Inc., 410 U.S. 512, 516-17 (1973)

(employer’s size, not that of its customers, determines FLSA

“enterprise” coverage). An “interpretation” that allows for-

profit businesses to pay hard-working employees at the bottom

rung of the ladder sub-minimum wages would be both at odds

with the long recognized purposes of the FLSA, see, e.g., Tony

& Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296

(1985), and out of alignment with the the Act’s other exemption

provisions and with the interpretation given the other clause in

the same provision, see Gustafson v. Alloyd Co., 513 U.S. 561,

575 (1995) (“[A] word is known by the company it keeps”).’

As respondent explains (Br. 5-10), the DOL iterpretation

hardly falls “unmistakably within [the] terms and spirit,” of the

congressionally-enacted exemption, A.H. Phillips, Inc. v.

Walling, 324 U.S. 490, 493 (1945). See pp. 21-26, infra

(discussing applicability of narrow construction canon).

Indeed, the terms of § 213(a)(15) point to an exclusive focus on

household employers. See § 552.101(a) (explaining that

“domestic service employment” had an “accepted meaning”)

(emphasis added); 26 U.S.C. § 3510.

infra. Cf. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 88 (2002)

(a regulation is not “necessary” if contrary to a law's purpose and design).

*DOL policy treats employment of a babysitter “by [an] agency other than

the family or household using their services” as categorically beyond the

reach of the exemption that is paired with “companion|ship]” in § 213(a)(15)

on the ground that “such employees are engaged in this occupation as a

vocation.” See 29 C.F.R. § 552.103(b) (emphasis added).

15

But the problems with the administratively-created

exemption on which petitioners rely go beyond having “drawn

the line” between newly-included and still-unprotected workers

in the wrong place. Cf. Barnhart v. Walton, 535 U.S. 212, 222

(2002) (noting “interstitial” character of legal questions

resolved by agency). Rather, because it is beyond dispute that

home health care workers (and other domestic service workers)

employed by substantial enterprises were protected under the

FLSA at the time of the 1974 Amendments, petitioners’ defense

of § 552.109(a) depends on showing that Congress delegated to

the agency the power to withdraw previously proviced

coverage. See Bowen v. Georgetown Univ. Hosp., 488 U.S.

204, 208 (1988) (“an administrative agency’s power to

promulgate legislative regulations is limited to the authority

delegated by Congress”); Board of Govs., Fed. Res. Sys. v.

Dimension Fin. Corp., 474 U.S. 361, 373-74 & n.6 (1986) (an

agency’s enforcement authority “only permits [it] to police

within the boundaries of the Act; it does not permit the [agency]

to expand its jurisdiction beyond the boundaries established by

Congress”); accord FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 125 (2000); Adams Fruit Co. v. Barrett,

494 U.S. 638, 649 (1990). By ignoring this threshold

requirement, it is petitioners who “put[] the cart before the

horse,” Pet. Br. 23.

It is common ground that, had the 1974 Amendments never

been enacted, the FLSA would entitle home health care workers

employed by substantial businesses to minimum wage and

overtime pay. The DOL repeatedly relied on the 1961 and 1966

Amendments, which provided for FLSA coverage on an

“enterprise” basis, to enforce the Act’s wage and hour

requirements against third-party home care and domestic

staffing agencies, see Brennan v. Veterans Cleaning Service,

Inc., 482 F.2d 1362 (Sth Cir. 1973); Homemakers Home &

Health Care Servs., Inc. v. Carden, 538 F.2d 98 (6th Cir. 1976)

(employees of firm providing domestic worker and health care

16

services); Wage and Hour Opinion Letter 174, 1972 WL 34917

(Aug. 20, 1972) (rejecting argument that “retail establishment”

exemption formerly codified at § 213(a)(2) excused firm

employing “domestics, babysitters, live-in companions * * *

and home health aid[e]s” from paying FLSA wages); Wage and

Hour Opinion Letter 147, 1971 WL 33084 (Nov. 17, 1971)

(affirming that employees of enterprise “engaged in the

business of providing temporary help in the home and health

care field” were covered).'°

In both 1974 and 2001, DOL recognized that domestic

workers employed by qualifying “enterprises” had been covered

before the Amendments, see 39 Fed. Reg. 35,385 (1974); 66°

Fed. Reg. 5,485. Although, on both occasions, the Department

later retreated from the logical conclusion that “denial of the

Act’s protection to previously covered * * * employees” “was

not the purpose of those Amendments,” 39 Fed. Reg. 35,385,

neither DOL nor petitioners dispute that many of the employees

they seek to exclude under the administratively-created

“exemption” would be entitled to minimum wage and overtime

pay had the 1974 Amendments not been enacted into law.

The notion that Congress conferred power to withdraw

coverage from workers whose employment already entitled

them to FLSA protections suffers from a series of grave

difficulties. First, as this Court’s cases have long recognized,

the geueral rules of statutory construction disfavoring repeals by

implication apply with special vigor to laws enacted, as the

1974 statute undeniably was, for the purpose of extending a

statute’s reach. Thus, in Cook County v. U.S. ex rel. Chandler,

538 U.S. 119, 133-34 (2003), the Court rejected a claim of

municipal immunity from suit under the False Claims Act that

was grounded on statutory amendments whose “basic purpose”

had been “to make that law a ‘more useful tool’” (citation

"The provision on which these employers (unsuccessfully) claimed

exemption was narrowed by Congress 1974, see Homemakers, 538 F.2d at

101 n.4, and repealed entirely in 1989. See Pub. L. No. 101-157 § 3.

17

omitted)). “It is simply not plausible,” Chandler explained,

“that Congress intended to repeal municipal liability sub

silentio by the very Act it passed to strengthen the

Government’s hand.” Jd. Accord Chisom v. Roemer, 501 U.S.

380, 396 & n.23 (1991) (refusing to treat “representative” as a

term of limitation when Congress had amended the Voting

Rights Act to expand its coverage).

Likewise, in Director, Office of Workers Compensation

Programs v. Perini North River Associates, 459 U.S. 297, 319

(1983), the Court rejected an argument that a provision included

in a statute enacted to expand the coverage of the Longshore

and Harbor Workers’ Compensation Act could be read as

authorizing exclusion of workers who qualified for protection

under that law’s pre-amendment “situs” test. Explaining that

the newly included “status” test was meant to delimit the class

of newly-protected workers, the Court held the added language

could not be read “to affect adversely the pre-1972 coverage.”

Id. at 323. Cf. Koons Buick Pontiac GMC, Inc. v. Nigh, 543

U.S. 50, 62-63 (2004).

The contraction Congress is claimed to have authorized

here, involving a class of employment relationships that are

within the heartland of Congress’s Commerce Clause

jurisdiction (and lack any attributes that made extending the

FLSA to household employers controversial), is substantively

implausible. See Chao v. Mallard Bay Drilling, Inc., 534 U.S.

235, 245 n.9 (2002) (rejecting interpretation that would leave

regulatory “gaps * ** plainly inconsistent with the purpose of

the [Occupational Safety and Health] Act”). That such

contraction would be accomplished through the oblique means

of the § 213(a)(15) delegation would be unusual in itself. See

MCI Telecomm. Corp. v. AF&T, 512 U.S. 218, 231 (1994).

The mounting implausibility of petitioners’ defense of

§ §52.109(a) achieves effective impossibility when the law that

is claimed to be the source of this power — the 1974 Act — is

examined. As with the “[i]nterpretive Rule” rejected in

18

Gonzales v. Oregon, 126 S. Ct. 904 (2006), the one disputed

here “is persuasive only to the extent one scrutinizes the

{ostensible authorizing] provision without the illumination of

the rest of the statute.” /d at 925 (citing Massachusetts - v.

Morash, 490 U.S. 107, 114-15 (1989)). See Corning Glass

Works v. Brennan, 417 U.S. 188, 198 (1974) (“The Fair Labor

Standards Act, [should be read with] ‘regard for the specific

history of the legislative process that culminated in the Act’”

before the Court) (quoting United States v. Universal C.LT.

Credit Corp., 344 U.S. 218, 222 (1952)).

The difficulty of inferring an intent to contract coverage (or

to authorize agency contraction) from the 1974 Amendments

begins with the statute’s preamble, declaring Congress’s aim

“to expand coverage of the [FLSA],” Pub. L. 93-259, and

section after section of the 1974 measure extends coverage to

previously unprotected workers. Moreover, it expands the very

“enterprise” provisions the Department claims power to narrow.

See id. § 6 (extending Act to employees of state and local

governments).'' The House Committee Report includes a

lengthy historical account of the FLSA’s evolution, which

begins by lamenting the statute’s failure to attain or even

approach “‘substantial universality’” in coverage, see H.R. Rep.

93-913 at 7 (quoting Powell, 339 U.S. at 516), and — after

quoting pleas and proposals for expanded coverage by

Presidents Roosevelt, Truman, Eisenhower, Kennedy, and

Johnson — concludes with a declaration of intent “to exten[d]

the Act’s coverage in such a manner as to completely assume

the Federal responsibility insofar as is presently practicable.”

ld 12

‘As noted above, the 1974 Act narrowed the one exemption — since repealed

altogether — that businesses employing home health care workers had cited,

unsuccessfully, as allowing them to pay employees below-minimum wages

"On the rare occasions when Congress has decided to reduce coverage, it

has made its intent explicit. See, e.g, Pub. L. 85-231 (1957) (“sections 6,

7, 11, and 12 shall not apply with respect to any employee whose services

* * * are performed in a workplace within a foreign country” or other

19

Congress’s intent that the § 213(a)(15) exemption operate

only as a limitation on the newly extended reach is evident from

the structure of the statute, which included within a single

section, the new basis for federal regulation — the congressional

finding that “domestic service affects commerce,” See Pub. L.

93-259 § 7(a)-— the provisions extending coverage to domestic

service employees, id. § 7(b)(1)(2), and the exemption, id.

§ 7(b)(3). The enactment history, committee reports and the

DOL regulations all confirm the understanding that §

213(a)(15) was not meant to reach beyond the class of

previously-unprotected workers. See S. Rep. No. 93-300, at 20

(describing proposal as “bring[ing] under the * * * the Act all

employees in private household domestic service earming

‘wages’ * * * for purpose of the Social Security Act, except

babysitters”); id . at 22 (describing “such activities as

babysitting or acting as a companion” as not included “within

the term ‘domestic service’”). The text of the regulations is

similarly explicit in linking § 213(a)(15) to §§ 6(f) and 7(/). See

29 C.F.R. § 552.2.

This understanding is evident in the congressional debates,

in which the circumstances of household-employed

“companions” and babysitters were repeatedly described as

being at (or beyond) the margins of the newly asserted

congressional power, because they were casual employees

working on an itinerant basis and not to support their families.

See H.R. Rep. No. 93-913 at 36 (employees in excluded

categories were not “regular bread-winners or responsible for

their families support”); S. Rep. No. 93-358 at 27 (same). See

also 119 Cong. Rec. 24,801 (1973) (Sen. Burdick) \observing

that, unlike “the professional domestic who does this as a

living,” many individuals pay a “neighbor [who] comes in and

enumerated U.S. jurisdictions).

20

sits with” an elderly parent).'* Congress understood that the

exemption codified at § 213(a)(15) to be consistent with the

Act’s objective, “to include within the coverage of the Act ail

employees whose vocation is domestic service.” S. Rep. No. 93-

690 at 20 (emphasis added).

Without any affirmative basis for claiming that the Ninety-

third Congress sanctioned relieving third-party commercial

employers of their existing FLSA obligations, petitioners and

their amici construct a circuitous argument, designed to depict

§ 552.109(a) as the lesser of two evils. Interpreting

§ 213(a)(15) as excusing only household employers of

companions of their FLSA obligations, they insist, would itself

lead to a gap in coverage — with other domestic service

employees of non-enterprise third parties losing out on wage

and hour protection. See Pet. Br. 32, 36; U.S. Br. 28.

The “danger” these parties claim to have averted is one

entirely of their own invention. By its own terms, the definition

of “domestic service employment” in § 552.3 (like the

552.109(a) “interpretation”) applies only to the statutory

exemption provision. And, given that (as all parties agree)

Congress meant for the (non-companion) domestic employees

in question to be covered under §§ 206 and 207, no known

- principle of statutory construction or administrative law would

compel the agency to adopt an “interpretation” of those

provisions contrary to its understanding of Congress’s specific

intent. Nor does the fact that the words “domestic service”

appear in both the coverage and the exemption provisions make

the “threat” credible. The rule of construction to which these

arguments appeal — that identical words used in a statute are

generally intended to have the same meaning — is hardly an

absolute, see, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 342

"’ In their efforts to exclude all domestic workers employed by householders

from coverage under the Act, opponents sought to portray a teenage

neighbor’s mowing the lawn as representative of the kind of work that would

be regulated. See, e.g., 119 Cong. Rec. 24,797 (Sen. Dominick).

21

(1996) (interpreting “employee” differently in different parts of

Title VII), but its only application is to situations where terms

are in fact identical, which “[djomestic service” and “domestic

service employment” are not. When, as here, provisions use

similar-sounding, but non-identical terms, very different canons

come into play — those requiring that “every word” in a statute

be given “some operative effect,” United States v. Nordic

Village, Inc., 503 U.S. 30, 36 (1992), and that differences in

wording should be treated as legally meaningful, see, e.g.,

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 454 (2002). See

also Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001)

(broadly construing the phrase “involving commerce” in the

coverage provision of the Federal Arbitration Act, while giving

the phrase “engaged in * * * commerce,”” which appears in the

law’s exemption provision, a narrow reading). These rules of

construction resonate here because, as respondent shows (Br.

8), the phrase “domestic service employment” is in fact a term

of art, with a distinct, settled meaning.

II. Exemptions With Respect to Domestic Workers Must Be

Construed In Light Of the Historic, Remedial Purposes of

The 1974 Amendments _

As explained above, this case may be resolved without

reaching the stage when the canon requiring that FLSA

exemptions be construed narrowly would be operative, see, e.g.,

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960), but

application of that rule would surely invalidate § 552.109(a).

Congress did not “unmistakably” indicate that third-party

employers of companions should be exempt from FLSA

obligations. See A.H. Phillips, 324 U.S. at 493. As discussed,

it did not intend such a regime at all, and the text of §

213(a)(15) does not support that interpretation.

Not surprisingly, therefore, petitioners and amici do not

assert that they can prevail under the normal rules applied to

FLSA exemptions. Rather, they claim (Pet. Br. 32 & n.12) that

such canons are inapplicable on the basis of the inventive “gap-

22

avoidance” theory - their claim that Congress’s acknowledged

purpose of “‘includ[ing] within the coverage of the Act all

employees whose vocation is domestic service,’” U.S. Br. 28

(quoting S. Rep. No. 93-690 at 20), is advanced by interpreting

§ 213(a)(15) to broadly exclude large numbers of such

employees, including respondent. As discussed above, the

purported need to avoid this gap is wholly contrived and is thus

no impediment to applying the normal rule that exemptions to

the FLSA are to be construed narrowly and against the

employer. See Arnold, 361 U.S. at 392; Mitchell v. Kentucky

Fin. Co., 359 U.S. 290, 295 (1959).

In fact, the reasons for applying such a rule have special

force here. First, as this Court has explained, the principal

rationale is that FLSA is “remedial legislation,” see A.H.

Phillips, 324 U.S. at 493; Hoffman-LaRoche, Inc. v. Sperling,

493 U.S. 165, 173 (1989), intended to address labor conditions

that Congress found intolerable. See H.R. Rep. No. 93-913 at

8 (quoting President Roosevelt’s description of the wage and

hour provisions as “the minimum standards of free labor” and

his assertion that “goods produced under conditions which do

not meet [these] rudimentary standards of decency should be

regarded as contraband”). The overarching policy judgment

animating FLSA — that those who work full-time should not

live in poverty — was central to the 1974 Act:

Many American workers whose employment is clearly

within the reach of this law have never enjoyed its benefits.

Unfortunately, these workers are generally in the lowest

wage groups and most in need of wage and hour protection.

We must extend minimum wage and overtime protection to

them.

It is the committee’s intention to extend the Act’s coverage

in such a manner as to completely assume the Federal

responsibility insofar as is presently practicable and to raise

the minimum wage to a level which will prevent the

disgraceful and intolerable situation of workers and their

23

families dwelling in poverty.

Id. at 9.

Second, the 1974 Amendments (the purported source of the

administrative power here) were remedial in a further sense, as

part of the broader congressional effort to address problems of

race and gender discrimination. As described above, the

historical record strongly supports the conclusion that the

disfavored treatment of domestic service workers under the

FLSA and other contemporaneous welfare and labor statutes

was not the unintended result of purely race-neutral

governmental decision-making. Cf. Jefferson v. Hackney, 406

U.S. 535 (1972). Whatever role concerns about potential

judicial invalidation played in shaping the law’s initial coverage

limitations, racial discrimination was very much on Congress’s

agenda when it passed the FLSA. Southern Senators made

clear that they would not abide legislation that “interfered with”

the Jim Crow system, i.e., by paying workers equally. See

Linder, 65 TEx. L. REV. at 1351, 1374-75 (1987).

The interest in keeping black women in the South in

domestic service at low wages was a motivating factor in the

drafting and administration of much New Deal social

legislation. See, e.g., M. POOLE, THE SEGREGATED ORIGINS OF

SOCIAL-SECURITY 38 (2006); SITKOFF, supra, at 36. As

Southern legislators and their constituents emphasized, relief

programs that diminished black women’s economic need to

work as “servants”; that afforded them alternate employment

opporiunities; or that held out the possibility of the federal

government’s acting as guarantor of equal treatment at the local

level would not be — and in fact were not — enacted.

Katznelson, et al., Limiting Liberalism: The Southern Veto in

Congress, 1933-1950, 180 PoL. Sci. Q. 283, 297 (1993)

(“President Roosevelt and congressional leaders tailored New

Deal legislation to southern preferences * * * * [S]ponsors

fashioned key bills to avoid disturbing the region’s racial

civilization by employing two main policy instruments: the

24

exclusion of agricultural and domestic labor, the principal

occupational categories of blacks, from legislation * * * and

decentralized administration”); see DOMESTICITY AND DiRT,

supra, at 108-110 (describing National Youth Administration

program that trained black girls to be domestic servants). Thus,

while President Roosevelt appealed to the “[f]ree labor” ideal

inextricably associated with the Thirteenth and Fourteenth

Amendments, see H.R. Rep. 93-913 at 8, in calling for the

FLSA, the law that resulted fortified a very different system.

See generally Linder, 65 TEX. L. REV. at 1372-80.

Although those who championed the 1974 Amendments did

not focus on this governmental discrimination, considerations

of racial justice and gender equality were a central theme of

their argument for covering domestic service employees. These

proponents not only viewed the law as ameliorating the

economic hardships faced by workers who were

“overwhelmingly female and members of minority groups,” 119

Cong. Rec. 24,799 (1973) (Sen. Williams), they saw FLSA

coverage as an expression of respect for these women’s dignity

and equality and the importance of the work they performed,

and a rejection of the stereotype-laden societal perceptions

about such work. Senator Williams, Chair of the Labor

Subcommittee and co-sponsor of the 1974 Amendments,

recognized that “many who watch our legislative activities view

the coverage of domestics as an effort to remedy racial and

sexual discrimination,” and he situated the provision in broader

social and historical context:

Many domestics are treated just as they were 150 years ago

— that is, as slaves. Two-thirds of al] household workers are

black and of the remaining one-third, many are Chicanos,

American Indians, or members of other minority groups.

They 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. See also Shabecoff, “To Domestics, A Minimum Wage is

25

a Raise,” N.Y. Times, June 6, 1973 (quoting Alabama affiliate

of the National Committee on Household Employment

explaining: “Many employers still tend to maintain the old

white superiority-black inferiority relationship in what should

be a neutral employer-employee relationship”). As did

numerous proponents, Senator Williams explicitly connected

the FLSA extension to other federal efforts to promote sex

equality: “Now that Congress has sent to the States the

constitutional amendment guaranteeing equal rights to women,

it would be hypocritical in the extremeto deny an appreciable

segment of the female workforce, earning low wages, an

opportunity to share in the rewards of the more meaningful

employment under the protection of the Fair Labor Standards

Act.” 119 Cong. Rec. 24,800 (1973).

In the House, Representative Shirley Chisholm led the effort

to extend the FLSA to cover domestic workers, mustering

evidence to show the predominantly male Congress that

domestic workers engaged in difficult labor. See, e.g., Tolchin,

Mrs. Chisholm Led Fight for Domestics’ Base Pay, N.Y.

Times, June 21, 1973. And in a letter reproduced in the

Committee Report, 17 of the 19 women then serving in

Congress, representing both political parties, explained:

We have heard rumors that your Subcommittee is under

pressure to drop the extension of minimum wage coverage

to domestic workers. As women legislators, this is of great

concern to us.

As you know, women are at the bottom of the economic

ladder* * * * * Contrary to popular opinion, women work

not for ‘pin money’ but because they have to. They are

either the head of the household or contribute substantially

to their family’s income* * * *

H.R. Rep. 93-913 at 34.

These proponents repeatedly described their intention that

extending FLSA coverage would be a catalyst for change in

26

societal attitudes toward home-based employment. Given the

special significance that the Ninety-third Congress attached to

inclusion within the Act — its view of FLSA coverage as an

affirmation of the dignity and equality of working minority

women, and a recognition of the social and economic

importance of domestic work — it would be morally obtuse, as

well as legally unjustifiable, to give the usual rule for

construing FLSA exemptions less than full force.

Ill. No Legitimate Policy of the FLSA Is Served By Allowing

Commercial Employers To Pay Home Health Care Workers

Below-Miuimum Wages

Petitioners and their amici suggest that even if the Court

properly denies § 552.109(a) binding effect, it should sustain it

as a “reasonable” interpretation of the statute. Keeping health

care worker wages below the federal minimum, they variously

contend: (1) advances the affordability of home health care to

needy families with modest means; (2) safeguards the public

fisc; and (3) benefits workers in respondent’s position, by

making it less likely. that a cost-conscious employer will limit

them to 40 weekly hours of work.

Of course, the Labor Department did not allude to any of

these rationales when it announced the third-party exemption

policy in 1975. The Notice of Final Rulemaking, the agency’s

first and only contemporaneous explanation of its action,

indicated that the Department had been guided by its (mistaken)

view of the statutory language, and they did not play any role in

Congress’s enactment of § 213(a)(15).'* But these newly

imputed regulatory “purposes” not only are unsupported in the

legislative and regulatory history, they are in obvious, positive

conflict with the specific congressional policy judgments

codified in the FLSA and the 1974 Amendments.

‘As the decision below recognized, the DOL’s “plain language” rationale

relied on a casual paraphrase of the congressionally-enacted language — one

that did not even remark upon the phrase “domestic service employment” in

§ 213(a)(15), let alone reckon with its meaning. Pet. App. 32a.

27

The claim that § 213(a){15) should be read broadly, so as to

expand workers’ “freedom” to work more than 40-hour weeks

without the employer-deterring overtime pay obligation, see

NYC Br. 29, is lesS an argument about the FLSA than an

argument against the statute. The “danger” that the minimum

wage and maximum hours regulations will adversely affect

employee earnings is one that has been presented to Congress

since the first debates over the FLSA (almost invariably, as

here, by employers, cf. Tony & Susan Alamo, 471 U.S. at 302);

and it has been rejected for just as long. The congressional

findings identify wages below the statutory minimum as

“detrimental to the * * * well-being of workers,” and, as

explained above, the Ninety-third Congress was not agnostic

whether being within the Act’s coverage was a boon or a bane

for employees."°

In addition to the argument that workers are better off by

being exempted, petitioners and amici attempt to derive the

right to pay sub-minimum wages from the modest means of

(some of) the clients workers care for.'® As with efforts to

assert employees’ interests, amici’s and petitioners’ claims to

speak on clients’ behalf suffer from a series of embarrassments.

There is, again, not the slightest indication that DOL adopted

the rule for this reason, and those, like amicus AARP, who have

a direct and un-conflicted interest in improving the quality of

home care have weighed in on employees’ side here, as they did

‘Nothing in § 213(a)(15) remotely suggests that Congress believed that

casual babysitters and companions were an exception to its general view that

workers are better off with statutory coverage. These workers were left

unprotected, not because they were seen as better positioned than others to

bargain with employers, see 1 19 Cong. Rec. 24,801 (1973), but because they

_ were not perceived as “bread-winners.” H.R. Rep. 93-913 at 36.

'© Of course, many of those who receive health care at home are well-off in

absolute terms; many more, obviously, are better off than the workers whose

wages are at stake, who would be guaranteed to $5.15 (and $7.67 for

overtime hours) were respondent fo prevail — i.e., $10,300 in wages for a

year of full-time work. And those who are less well off almost surely qualify

for goyernment assistance, see infra.

28

in the court below — and in policy discussions across the

country. As their direct experience and intensive research has

led them to conclude, low wages pose a far more real threat to

client well-being than do “high” — i.e., minimum — wages."’

The notion that Congress meant § 213(a)(15) as a health

care cost-containment provision is not only at war with the

general thrust of FLSA, but belied by the specific legislative

policy judgments embodied in the 1974 Act. The first premise

of the statute is that the “balance” between workers’ earnings

and other worthwhile public objectives is not to be struck below

the minimum wage, see H.R. Rep. No. 93-913 at 8 (“‘A

self-supporting and self-respecting democracy can plead * * *

no economic reason for chiseling workers’ wages or stretching

workers’ hours’”) (quoting President Roosevelt), and, true to

that judgment, Congress has broadly covered health care

workers, as well as those who work for non-profit and

charitable employers. The 1974 Amendments — in addition to

raising the minimum wage for health care and other workers —

substantially repealed the overtime exemption for nursing home

employees (modeled on the extension for State-owned hospitals

enacted in 1966, see Maryland v. Wirtz, 392 U.S. 183 (1968)).

And a Congress intent on using low wages to keep direct care

- costs down would not likely require households to pay FLSA

wages to home nurses, see 29 C.F.R. § 552.6 — let alone to

companions who spend more than 20 percent of their time on

housekeeping, see id. § 552.6.

In fact, not even the solitary strand of contemporaneous

evidence from which petitioners and amici spin out their

'’To take one example, while amici assert that “continuity of care” would be

jeopardized if employers had an incentive to cap workers at 40-hour weeks,

there is no indication that this has occurred in States where home health

workers are covered by State wage and hour laws, and turnover induced by

low wages and poor working conditions is surely a more serious threat to

continuity than are the hypothesized caps. See also Occupational Outlook

Handbook at 35 1 (average worker visits five different clients in the course of

a work day).

29

elaborate health policy argument actually supports

§ 552.109(a). Although the Senate floor debates referenced a

letter-received from a “single lady employed as a secretary”

objecting to coverage of the woman who cared for her aged

mother during her work day, 119 Cong. Rec. 24,797 (1973),

that complaint was highlighted (by opponents of the entire

coverage extension) to illustrate the allegedly excessive

administrative burdens they warned extension would bring.

Worse still for petitioners, however, the complaint, involving

a companion employed by the household, says literally nothing

about whether corporate employers should be made exempt.

See Arnheim & Neely, 410 U.S. at 519 (rejecting employer’s

effort to rely on its clients’ entitlement to a de facto small-

enterprise exception).

Nor, for similar reasons, are the warnings about the adverse

effects on public budgets valid FLSA arguments. These dire

forecasts are surely overdrawn — no small number of home

health care workers receive wages that are (as a result of market

forces or State and local legislation) in line with what FLSA

prescribes. And while the evidence of home-care promotion

purpose for the 1974 Act is insubstantial, the evidence of a

congressional purpose to spare governments reimbursement

costs associated with providers’ wage and overtime

responsibilities is nonexistent. On the contrary, as landmark

decisions of this Court attest, Congress carefully considered,

but rejected, States’ fiscal — and other — interests when it

decided in 1966 and again in 1974 to require State and local

agencies (and the federal government) pay their own employees

minimum wages and overtime pay, in accordance with the

FLSA. See National League of Cities v. Usery, 426 U.S. 833,

835-39 (1976), overruled, Garcia, 469 U.S. at 537-47. As the

Court noted, the States were active participants in the legislative

process, see Garcia, 469 U.S. at 554 n.17, though they had only

minor success in retaining any special, favorable treatment. It

would be truly capricious to reinterpret § 213(a)(15) as

30

protecting States from indirect costs associated with bringing

third-parties’ costs in line with minimum federal requirements

when the same Congress rejected pleas - grounded in State

sovereignty and public safety, as well as fiscal necessity —

advanced by governments as direct employers.

CONCLUSION

The judgment of the Court of Appeals should be affirmed.

MOLLY K. BIKLEN DAVID T. GOLDBERG

RAYMOND H. BRESCIA Counsel of Record

Urban Justice Center 99 Hudson Street, 8th FI.

666 Broadway, 10th Fl. New York, N.Y. 10013

New York, N.Y. 10012 (212) 334-8813

PAUL K. SONN

RAJESH D. NAYAK

Brennan Center for Justice

at NYU School of Law

161 Avenue of the Americas,

12th Floor

New York, N.Y. 10013

Attorneys for Amici Curiae

MARCH 2007

APPENDIX

DESCRIPTION OF AMICI ORGANIZATIONS

Urban Justice Center

Founded in .1984, the Urban Justice Center is a New York

City-based nonprofit organization that serves the City’s most

vulnerable residents. Through legal representation, advocacy,

research and education, the Community Development Project

of the Urban Justice Center works with low-income

communities, particularly communities of color, to secure the

benefits of economic security for all. The Community

Development Project advocates on behalf of low-wage workers

in New York, including workers engaged in caregiving, and has

a substantial interest in ensuring that these workers are entitled

to the basic provisions of the federal wage and hour law.

Brennan Center for Justice

The Brennan Center for Justice at New York University

School of Law is a non-partisan law and public policy institute

dedicated to a vision of effective and inclusive democracy.

Through legal representation, research and legislative advocacy,

the Brennan Center promotes public policies that enable all

residents to participate in the civic and economic life of our

nation. For nearly a decade, the Brennan Center has worked at

the federal, state and local levels to raise and strengthen the

minimum wage for low-income families, particularly caregivers

who for too long have been denied many basic protections.

Having successfully extended minimum wage laws to include

caregivers in some of the states, the Brennan Center has a

substantial interest in ensuring that the federal minimum wage

law is interpreted correctly to end this outmoded exclusion

nationwide.

Asian Americ al ense and

Founded in 1974, the Asian American Legal Defense and

Education Fund (AALDEF) is a national organization that

protects and promotes the civil rights of Asian Americans. By

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combining litigation, advocacy, education, and organizing,

AALDEF works with Asian American communities across the

country to secure human rights for all. AALDEF advocates on

behalf of low-wage Asian American workers to secure fair

treatment in the workplace and has an interest in ensuring that

our nation’s wage and overtime laws protect all low-wage

workers.

Mexican American Legal Defense and Educational Fund

The Mexican American Legal Defense and Educational

Fund (MALDEF) is a national civil rights organization

established in 1968. Its principal objective is to secure, through

litigation, advocacy, and education, the civil rights of Latinos

living in the United States. MALDEF has represented Latino

interests in employment discrimination and wage and hour

cases throughout the country. MALDEF’s mission includes a

commitment to pursuing equity and opportunity in the

workplace through advocacy, community education, and the

courts, and therefore it has a strong interest in the outcome of

these proceedings.

P al Def tion F

The Puerto Rican Legal Defense and Education Fund, Inc.

(PRLDEF), based in New York, is a non-profit civil rights

impact litigation and advocacy organization that has promoted

the civil rights and equal protection of Latinos for the past 34

years through litigation involving constitutional law, federal

voting rights, employment and housing discrimination,

language rights, educational access, and immigrant rights.

PRLDEF is deeply concerned about the recurring issues that

are raised in this case which affect thousands of Latinos,

immigrants and other minority employees in the expanding

home care industry in the U.S. Many of these domestic workers

_are disproportionately impacted by substandard and unfair

working conditions and face wage inequities under the existing

laws.

National Women’s Law Center

The National Women’s Law Center (NWLC) is a non-profit

legal advocacy organization dedicated to the advancement and

protection of women’s legal rights and the promotion of

economic security for women and their families. Since 1972,

NWLC has worked to secure equal opportunity in the

workplace by supporting the full enforcement and strengthening

of anti-discrimination laws and other laws promoting workplace

fairness, and has represented petitioners and prepared or

participated in numerous amicus briefs before this Court and

the federal courts of appeal.

Nati Partnership for Women & ili

The National Partnership for Women & Families is a non-

profit, national advocacy organization founded in 1971 that

promotes equal opportunity for women, quality health care, and

policies that help women and men meet both work and family

responsibilities. The National Partnership has devoted

significant resources to combating sex, race, and other forms of

invidious workplace discrimination and has filed numerous

briefs amicus curiae in the U.S. Supreme Court and in the

federal circuit courts of appeal to advance the opportunities of

women and people of color in employment.

Legal Momentum

Legal Momentum advances the rights of women and girls

by using the power of the law and creating innovative public

policy. With the goal of promoting economic security for

women, Legai Momentum has litigated cases to address

interpretations of federal employment protections that

particularly disadvantage women workers, including United

States and Colon v. City of New York, 359 F.3d 83 (2d Cir.

2004), and has participated as amicus curiae in leading cases

addressing sex discrimination in the workplace, including

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and

A-4

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). This case

is of particular interest to Legal Momentum because home care

workers are nearly all female, and because the original

exemption of domestic workers from the Fair Labor Standards

Act was based on stereotypes that demean the value of domestic

work and women workers.

Washington Lawyers’ Committee for Civil Rights and Urban

Affairs

The Washington Lawyers’ Committee for Civil Rights and

Urban Affairs, a non-profit, public interest organization, seeks

to eradicate discrimination and fully enforce the nation’s civil

rights laws through the provision of legal assistance. The

Committee was formed in 1968 in response to both a national

report issued by the National Advisory Commission on Civil

Disorders identifying discrimination and poverty as the root

causes of the recent social unrest, and a related call from

members of the private bar to mobilize to meet the legal needs

of underserved populations. In the Committee’s almost 40-year

history, its attorneys have represented thousands of individuals

who have alleged discrimination in cases brought under both

federal civil rights statutes and state and local civil rights laws,

as well as individuals who have alleged violations of federal

and state fair labor laws. The largest and oldest of the

Committee’s projects is the Equal Employment Opportunity

Project, which represents victims of employment discrimination

and wage and hour violations in individual cases and class

actions against both government agencies and private

employers. From these ed other cases, the Washington

Lawyers’ Committee ha» ee. »epertise in the issues of law

and public policy that have tee: “ased in the present matter.

American Civil Liberties Union

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with more than

550,000 members dedicated to preserving the principles of

liberty and equality embodied in the Constitution and this

A-5

nation’s civil rights laws. Through its Women’s Rights Project

and Racial Justice Program, the ACLU has worked for decades

to eliminate the barriers to full equality for women and

communities of color. As documented in this brief, the

challenged exclusion of caregivers from minimum wage

protection has a disproportionate impact on women of color and

reflects an historical undervaluing of work traditionally

associated with women. The proper resolution of this case is

therefore a matter of substantial interest to the ACLU and its

members.

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