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Are Nannies, Butlers & Maids Entitled To Overtime Pay?

by | Jun 20, 2024 | Employment Discrimination, Employment Law, Federal Law Update, Wage: Overtime |

For the most part, the answer to whether domestic employees are entitled to overtime is yes. However, there is an exception to when the nanny, butler, maid, or other domestic employee resides in the same house where they work.

Let’s step back for a moment. The Fair Labor Standards Act (“FLSA”) mandates that most employees are entitled to receive overtime compensation, which is time-and-a-half pay, for every hour worked beyond forty hours in a week. Employers cannot avoid overtime merely by paying an employee a salary, but they must prove that the employee fits into a specific exemption. The FLSA provides specific exemptions for specific categories of workers from its protections, who are not then entitled to the overtime-pay guarantees. Typically, at issue when dealing with nannies, butlers, maids, or other domestic employees is 29 U.S.C. § 213(b)(21), which exempts “any employee who is employed in domestic service in a household and who resides in such household.” Courts often refer to this as the live-in service exemption. Employees that fall within the live-in service exemption are only entitled to the same rate of pay regardless of how many hours they work. They are not entitled to time-and-a-half pay once they worked beyond forty hours in any given workweek.

How does the live-in service exemption work under the FLSA?

To qualify for the live-in service exemption, the employee must meet three criteria: (1) engage in domestic service, (2) work within a household, and (3) reside in that household. The Fair Labor Standards Act (FLSA) does not explicitly define the term “resides,” and the United States Supreme Court has not provided a specific interpretation of this term within the FLSA. Therefore, courts rely on the “plain meaning at the time of enactment” to understand the term. According to contemporary dictionary definitions at the time the exemption was added, “reside” means to “dwell permanently or continuously; have a settled abode for a time; have one’s residence or domicile” (Webster’s Third New International Dictionary, Unabridged 1971). In essence, determining whether an employee “resides” at a house involves examining whether the employee actually lives there.

This brings us to the recent case of Blanco v. Samuel, No. 22-13669, 2024 WL 252771 (11th Cir. Jan. 24, 2024). In in 2018, Maria Blanco began working as a nanny and housekeeper for the Anand Samuel and Dr. Lindsey Finch (“Parents”), who had four daughters. Blanco was one of several nannies who split the hours of the children’s care, each caring for all four children during their shifts. During the time in question, Blanco worked 79 hours each week. She began with a 23-hour shift from Sunday at 10:00 a.m. to Monday at 9:00 a.m. Blanco’s other hours came through four 14-hour shifts on consecutive days starting on Monday at 7:00 p.m. and ending at 9:00 a.m. the following morning. Blanco was paid $800–$880 per week. Blanco’s job included handling housekeeping and cleaning tasks, doing the family’s laundry, and caring for the children, which involved putting them to bed, feeding infants during the night, changing diapers, staying attentive to any overnight concerns the children had, and ensuring all the children were awake each morning and ready to go.

At the end of each of her five shifts during each week, Blanco almost always left the Parents’ house, and a different nanny took over the childcare duties. In a 3-bedroom, 2-bath-room house, the Parents slept in the master bedroom, while the other two rooms each held two of their daughters. During her shifts, Blanco stayed in the room with the two youngest girls in a tiny cot with a nightstand next to it, in which she kept a few clothes, a bible and some religious symbols. While performing some work overnight, Blanco acknowledges that she slept for some periods during the night and spent some time studying on her own materials.

Blanco brought a change of clothes in an overnight bag for each shift and would often shower at the Parents’ house after putting the children to bed. After her shift, Blanco almost always returned to an apartment that she shared with her aunt, where she would sleep for five to six hours during the day.

The Parents never gave Blanco a key to the house, and she seldom stayed at the house beyond her shifts, although she did have friends visit her on occasion.

After Blanco was fired in August 2021, she filed a claim asserting that she should have been paid overtime at time and a half for the 39 hours per week she worked beyond 40 hours.

The Parents argued that that she fell within the FLSA’s live-in service exemption. The District Court agreed pointing to the fact that she stayed overnight and often slept. Blanco appealed and the United States Court of Appeals for the Eleventh Circuit reversed on this issue, which reversed and pointed to her maintaining her own residence, need to bring an overnight bag, and lack of a key.

The Parents pointed to the fact that Blanco slept during part of the time. The Eleventh Circuit Court of Appeals disagreed, holding that she was on call during those hours and could not choose to sleep if one of the children needed her. The Eleventh Circuit pointed to 29 C.F.R. § 785.21, which provides, “An employee who is required to be on duty for less than 24 hours is working even though [s]he is permitted to sleep or engage in other personal activities when not busy … It makes no difference that she is furnished facilities for sleeping. Her time is given to her employer. She is required to be on duty and the time is worktime.” Id. at *7.

The Parents pointed to Blanco having her own bed, but the Eleventh Circuit rejected this, holding that three to four nannies “effectively tag-teamed the single bed, each using that same bed on their own shifts. That is hardly a typical arrangement at one’s own residence.” Id.

The Parent argued that Blanco stored personal religious books, cosmetics, slippers, and socks near the nannies’ bed. Again, the Eleventh Circuit disagreed and held:

“That Blanco kept a few belongings at the Parents’ house does not mean she treated the house as her residence. Just as many office workers keep personal effects—clothing, photos, religious items, and other personal mementos—at their place of employment, Blanco kept a few items in the bedroom where she spent much of her time at work.”

Id. at *8.

The Eleventh Circuit also rejected the Parents’ emphasis on the fact that Blanco would eat breakfast at the house and occasionally had friends visit:

“Nor did the Parents’ testimony about eating breakfast at the Parents’ house or having an occasional houseguest turn their house into Blanco’s residence any more than eating breakfast at the office or having a friend stop by an employee’s workplace makes that workplace the employee’s residence.”

Id. at *9.

The Court ask if the same arguments and facts would create residency if applied to a firefighter who slept at the firehouse in a common bed, kept some belongings there, only spent time there while working, cooked and ate meals at the firehouse, and left to go to a separate residence. Clearly not.

Best Overtime Pay Violation Lawyer Blogs on Point:

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The wage theft and overtime pay violation information provided in this employment law blog is for general informational purposes only and should not be construed as legal advice. While we strive to keep the content accurate and up-to-date, it is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers are advised to consult directly with the best wage and hour lawyers near them for advice on their specific situations. It is important to note that laws and regulations can vary by jurisdiction, and the information presented here may not reflect the current legal standards applicable to your location. The decision to hire legal representation should be based on individual considerations, and readers are encouraged to conduct their own research and seek independent legal advice before making any decisions. In conclusion, while we strive to provide valuable and accurate information, readers are urged to treat the content as a starting point for their own research and to consult with legal professionals to obtain advice tailored to their unique circumstances.

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