Count I of the complaint seeks overtime compensation pursuant to § 7 of the FLSA, 29 U.S.C. § 207. Count II of the complaint seeks reinstatement and lost wages for the alleged wrongful termination pursuant to § 15(a)(3) of the FLSA, 29 U.S.C. § 215(a)(3).
In their motion for summary judgment, the defendants state that the plaintiff, according to her deposition, provided only companionship services for Mrs. Holden and that such services are exempt from the overtime provisions of the FLSA. The defendants also contend that the plaintiff has no cause of action for wrongful termination under the FLSA. Specifically, the defendants argue that the plaintiff has failed to establish that she was discharged for instituting a proceeding under the FLSA or for serving on an industry committee.
With respect to Count I, the plaintiff maintains that although she performed some companionship functions for Mrs. Holden, based upon her practical experience she also performed actual care and quasi nursing supervision. The plaintiff also contends that her functions were of an attendant care service nature under Pennsylvania law. Insofar as Count II is concerned, the plaintiff states that she has set forth a cause of action for wrongful termination. Specifically, she states that on August 4, 1987 she demanded overtime compensation in accordance with the FLSA. Subsequently, her employment with Mrs. Holden was terminated. Thus, the plaintiff argues that her termination was in retaliation for her assertion of her rights under the FLSA.
In their reply brief, the defendants state that the plaintiff's practical experience did not elevate her to the level of trained personnel. The defendants also state that under the Pennsylvania Attendant Care Services Act, 62 P. S. §§ 3051, et seq., which is relied upon by the plaintiff, the definition of attendant care services falls within the FLSA's definition of companionship services. Furthermore, the defendants state that even if the plaintiff was terminated for demanding overtime pay, she has still failed to state a cause of action for wrongful termination.
Summary judgment is appropriate only when there is no genuine issue of material fact to be resolved. Fed. R. Civ. P. 56; Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982); Continental Ins. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. The entire record must be examined in light most favorable to the non-moving party. Continental Ins., supra. Additionally, the Supreme Court has recently ruled that Fed. R. Civ. P. 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552-2553, 91 L. Ed. 2d 265 (1986). The Court further stated that "Rule 56(e) . . . requires the non-moving party to go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. 106 S. Ct. at 2553.
Section 207(l) of the FLSA, 29 U.S.C. § 207(l), provides that: "no employer shall employ an employee in domestic service in one or more households for a workweek longer than forty hours unless such employee receives compensation for such employment in accordance with subsection (a) of this section." Section 207(a)(l) of the FLSA, 29 U.S.C. § 207(a)(l), provides in relevant part that: "no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."
Exemptions from coverage under § 7 of the FLSA exist and are specified in § 13 of the Act. Section 13(a)(15) of the FLSA, 29 U.S.C. § 213(a)(15), states that § 7 of the Act does not apply with respect to: "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee 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)." [Emphasis added].
The term "companionship services" for the aged or infirm for purposes of § 13(a)(15) of the Act is defined in the federal regulations. Specifically, 29 C.F.R. § 552.6 defines the term "companionship services" as follows:
§ 552.6 Companionship services for the aged or infirm.
As used in section 13(a)(15) of the Act, the term "companionship services" shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. The term "companionship services" does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse. While such trained personnel do not qualify as companions, this fact does not remove them from the category of covered domestic service employees when employed in or about a private household.