The Fair Labor Standards Act is intended to guarantee to
employees certain minimum labor standards. See Mitchell v. Robert
DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d
323 (1960). It does so principally by requiring the payment of a
minimum wage and the payment of an overtime premium of one and
one half times the employee's regular rate of pay for hours
worked in excess of forty in a given week. See 29 U.S.C. § 206,
207(a). At issue in this case is whether the defendant is
properly calculating its employees' regular rate. It uses their
hourly wage, but plaintiffs argue it should be higher because it
should include contributions to the benefit plan and bonuses.
Preliminary to those issues, though, RHD argues that the FLSA's
overtime pay rule is not applicable to plaintiffs at all because
they are a type of employee exempted from the Act's coverage.
RHD argues that the plaintiffs are not covered by the FLSA
because they are members of a class of employees exempted by
statute. Specifically, the Act excludes from coverage "any
employee employed in domestic service employment to provide
companionship services for individuals who (because of age or
infirmity) are unable to care for themselves."
29 U.S.C. § 213(a)(15). To fit within the exemption, then, the statute
requires that three elements must be met: (1) the employees must
be employed in domestic employment, (2) the employees must
provide companionship services, and (3) the services must be for
qualified aged or infirm individuals.
Exemptions from the FLSA are to be construed narrowly against
the employer. It is the employer's burden to prove that its
employees come within the scope of the exemption, and "any
exemption from the Act must be proven plainly and unmistakenly."
Friedrich v. U.S. Computer Servs., 974 F.2d 409, 412 (3d Cir.
1992). The specific requirements of the elements of the companion
exemption are not set forth in the statute. Rather, they are
articulated in the regulations and interpretations of the
Secretary of Labor.*fn2 The regulations define "domestic service
employment" as follows:
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.*fn3 The term includes employees
such as cooks, waiters, butlers, valets,
maids, housekeepers, governesses,
nurses, janitors, laundresses, caretakers,
handymen, gardeners, footmen, grooms,
and chauffeurs. . . . This listing is illustrative
and not exhaustive.
29 C.F.R. § 552.3. To restate, to be employed in domestic
employment, employees must perform household services in a