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11th Circ. Offers Rare Look At Definition Of Live-In Nanny


January 31, 2024

An 11th Circuit opinion ruling that a nanny was entitled to overtime pay offers a rare deep dive into the contours of the Fair Labor Standards Act’s live-in domestic worker overtime exemption and shows the challenges of enforcing wage protections for household workers, attorneys say.

Under the FLSA, a worker “who is employed in domestic service in a household and who resides in such household” is not entitled to overtime pay. What it means to “reside” in a household while employed as a housekeeper and nanny was the central question before the 11th Circuit.

These questions do not often make their way to court, let alone become the focus of an appellate decision, because the dollar amounts at issue make costly litigation unattractive and domestic workers may fear speaking up.

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It also offers an analytical framework for how to wrestle with the question of what it means to reside in a household — an area that doesn’t have a lot of case law, said D. Michael Hancock, of counsel for worker-side firm Cohen Milstein Sellers & Toll PLLC and former assistant administrator of the DOL’s WHD.

The discussion about how she didn’t have a key to the house or her own dedicated, private space, for example, contributed to the “common sense conclusion” that she was not part of the household, Hancock said.

“When people think about what your residence is, part of that is I can come and go as I please. I have a key. I have access,” he said. “They took a fairly practical approach … where they asked the question ‘let’s look at how this person’s day-to-day, week-to-week life unfolds.'”

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States and cities across the country, like Virginia and Philadelphia, have passed domestic worker bills of rights to ensure domestic workers have pay protections and rights to things like employment contracts and time off.

These efforts reflect a broader public appreciation for these critical workers and this opinion reinforces that, Hancock said.

“Just because they’re labeled a babysitter or just because they’re labeled a companion, doesn’t mean that they’re not entitled to be treated fairly and to be treated to the full protections of minimum wage and overtime,” he said. “Just because you’re a household and because you’re a family doesn’t provide you with an exemption from the FLSA writ large.”

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