In April 2002, Evelyn Coke, a domestic worker who provided “companionship services” to elderly and infirm men and women, brought a lawsuit against her former employer, Long Island Care at Home, Ltd. (LI Care), and its owner, Maryann Osborne. Ms. Coke alleged that LI Care failed to pay her the minimum wages and overtime wages to which she was entitled under the Fair Labor Standards Act (FLSA), and she sought a judgment for those unpaid wages. All parties assume for present purposes that the FLSA entitles Coke to payment if, but only if, the statutory exemption for “companionship services” does not apply to companionship workers paid by third-party agencies such as Long Island Care. In 1974, Congress amended the FLSA to include many “domestic service” employees not previously subject to requirements of minimum wage and maximum hours. When doing so, Congress simultaneously created an exemption that excluded from FLSA coverage certain subsets of employees “employed in domestic service employment,” including babysitters “employed on a casual basis” and companionship workers. The Department of Labor (DOL) then promulgated a set of regulations that included the following:

Interpretations, says that exempt companionship workers include those who are employed by an employer or agency other than the family or household using their services…. [whether] such an employee [is assigned] to more than one household or family in the same workweek…. 40 Fed. Reg. 7407 [codified at 29 CFR § 552. 109(a)].
The FLSA does not define the statutory terms “domestic service employment” and “companionship services.” It authorizes the Secretary of Labor “to prescribe necessary rules, regulation, and orders with regard to the 1974 amendments made by this Act.” The DOL gave notice, it proposed regulations, it received public comment, and it issued final regulations in light of the public comment. The resulting regulation is quoted above. Does the second step of the Chevron framework apply to the facts of this case? Where large enterprise third-party employers like LI Care can avoid paying minimum wage and overtime rates to workers like Evelyn Coke, may reviewing judges find the regulation unwise and unenforceable? Decide. [Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 239 (2007)]