In the year 2015, two women from Peru who were brought to Miami to work as domestic employees were awarded $125,000 by a South Florida jury for the failure of their domestic employer to pay them the required minimum wage. The domestic employees, who lived with the domestic employer, filed a five-count complaint in U.S. District Court for the Southern District of Florida claiming, among other things, violations of the Fair Labor Standards Act (FLSA) and violations of federal human trafficking laws. According to the complaint, the domestic employees worked anywhere between 15 and 19 hours per day and were paid less than the minimum wage. The complaint further alleged that the domestic employer confiscated the domestic employees' passports and forced the domestic employees to live in a closet next to the trash chute. After a five-day jury trial, the jury found that the domestic
employers failed to pay the domestic employees minimum wages and awarded them approximately $125,000 in back wages.
The regulations under the FLSA specifically cover domestic employees. The term domestic employment refers to all services performed in a household or in a private home. Domestic employment includes cooks, waiters, butlers, valets, maids, housekeepers, nurses, janitors, caretakers, handymen, gardeners, animal groomers and chauffeurs of automobiles that are used by the family. Furthermore, the regulations specifically provide that all domestic employment affects interstate commerce. Therefore, domestic employers cannot defend on the basis that they are not covered employers by virtue of not having handling goods or materials in interstate commerce.
With respect to wages, the regulations provide that all domestic employees must be paid the federal minimum wage and, to the extent that the domestic employees works over forty hours per week, the employee must be paid overtime compensation at the rate of one and one-half times the regular rate of pay. However, if the domestic employee resides in the household where they are employed, the FLSA provides an exemption for overtime pay so long as all of the hours worked are compensated at least at the minimum wage.
In meeting the wage responsibilities, a domestic employer may take credit for the reasonable cost of food, lodging and other facilities provided to the domestic employee. However, the credit may only be taken where the employee's acceptance of the facilities is voluntary and not coerced. The confiscation of passports or other items may be deemed to be coercion sufficient to prevent the domestic employer from taking the credit for food and lodging. Finally, where uniforms are required by the domestic employer, the cost of the uniforms and their care must be paid by the employer and the employer cannot take a credit for the cost of such uniforms.
The calculation of hours worked by domestic employees is generally a tricky issue because, normally, an employee who remains on an employer's premises and is "on-call" must be paid for those hours. Yet, when it comes to domestic employees, the employee and employer may agree as to the time periods that are not included as hours worked, such as meal times and other time periods where the domestic employee is free to pursue his or her own interests. However, for periods of free time to be excluded from hours worked, the period must be long enough in duration to enable the employee to make effective use of the time to pursue his or her own interests.
If you have any questions regarding wages and hours or other employment law matters, please contact me, Santiago J. Padilla, Esq. at (305) 824-2400 or via email.