Chevron Deference: The Agency’s Mulligan

by Emmanuel Bello

Recently, the Department of Labor reclassified Home Health Aides as employees. Effective January 1, 2015, they will no longer be exempt from the Fair Labor Standards Act’s minimum wage and overtime requirements.[1] This is a major breakthrough for workers who have suffered over a century of marginalization. However, what does this really mean for domestic workers? Have the lawmakers done enough to rectify their misinterpretation of the FLSA? To answer this question, we can look to the seminal case, Long Island Care at Home, Ltd. v. Coke,[2] and analyze what this could mean for the plaintiff and the 1.9 million domestic workers currently in the United States.[3]

Evelyn Coke was a home health care attendant (HHA) who worked for a home health care agency for nine years without minimum wage or overtime protections.[4] As a HHA, Coke provided, among other services, assistance with administering medication, doctor’s visits, and ambulation transfers.[5] The Court consistently referred to the services she provided as “companionship services.”[6] The Court relied on the principle of Chevron deference[7] when it accepted the Department of Labor’s interpretation of the FLSA, excluding home health care workers from receiving minimum wage or overtime pay regardless of employer.[8] This interpretation is in direct conflict with the General Regulation, which defines exempted domestic work as “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.”[9] How can the Court agree that this regulation can reasonably be interpreted to extend to home health care providers employed by an agency?

The Court reasoned that the General Regulation should not be read literally.[10] Instead, the regulation should be interpreted as providing a definition for the type of work that is not covered under the FLSA.[11] In other words, the fact that Coke was employed by an agency is irrelevant to the analysis. The type of work that Coke performed and the agency’s interpretation of domestic work were the sole bases for excluding her from FLSA protection. Despite this analysis, the new regulation still excludes domestic workers engaged in companionship services and employed by individuals, families, or households.[12] At the same time, agencies are not allowed to invoke this exemption even if the worker is engaged in “companionship services.”[13]

If the definition of companionship services has not changed, why is the nature of the employee-employer relationship relevant? And if the interpretation of companionship service has not changed, what has? The Department of Labor acknowledges that these services are essential to “the long term care system (which heavily relies on home care services), and the broader health care system.”[14] This system was developed to reduce the rising cost of health care and to provide long-term care for patients who prefer to rehabilitate in the comfort of their home instead of a nursing home or hospital.[15]

Could this new interpretation be driven by the fact that the aging baby boomers have created a growing market unable to satisfy the demand for cheaper health care services?[16] Or could this be an attempt to recover some of the billions of revenue lost every year due to the misclassification of workers as independent contractors instead of employees?[17] Whichever self-serving justification compelled the promulgation of the new regulation, none of them reflect the need to take care of the millions of HHA’s like Coke, who have worked for years without the guarantee of minimum wage or overtime pay, and with very little savings to cover their health care costs when they reach old age. Without the employee designation, they have contributed very little their long-term care provided through Medicaid. So although this regulation is a step in the right direction, it is a rather small step.

[1] Minimum wage, overtime protections extended to direct care workers by U.S. Labor Department, U.S. Dep’t of Labor (Sept. 17, 2013),

[2] 551 U.S. 158 (2007).

[3] D.O.L., supra note 1.

[4] Coke, 551 U.S. 158, 164 (2007).

[5] Our Services, Long Island Care At Home, (last visited Nov. 15, 2014).

[6] Coke, 551 U.S. at 164.

[7] When Congress fails to expressly or implicitly address an issue that is within the scope of an agencies authority, courts will defer to the agency’s interpretation as long as it is reasonable. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).

[8] Coke, 551 U.S. at 169.

[9] Labor, 29 C.F.R. § 552.3.

[10] Coke, 551 U.S. at 170.

[11] Id.

[12] Fact Sheet # 79A: Companionship Services Under the Fair Labor Standards Act (FLSA), U.S. Dep’t of Labor (Sept. 2013),

[13] Id.

[14] Brief for Petitioner at 3, Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) (No. 04-1315), 2005 WL 1034096, at *3.

[15] D.O.L., supra note 1.

[16] Elizabeth Riordan, Where the Heart Is: Amending the Fair Labor Standards Act to Provide Wage and Overtime Pay Protection to Agency-Employed Home Health Aides, 85 St. John’s L. Rev. 837, 838 (2011).

[17] Billions in Revenue Lost Due to Misclassification and Payroll Fraud, Jobs With Justice, (last visited Nov. 15, 2014).

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