Maria Eugenia Blanco v. Anand Adrian Samuel, et al

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13669
____________________
MARIA EUGENIA BLANCO,
Plaintiff-Appellant,
versus
ANAND ADRIAN SAMUEL,
LINDSEY ADAMS FINCH,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-24023-RNS
____________________
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2 Opinion of the Court 22-13669
Before J ORDAN , ROSENBAUM, and H ULL, Circuit Judges.
ROSENBAUM, Circuit Judge:
Say the word “nanny,” and any number of beloved fictional
characters may pop into mind: Julie Andrews’s Mary Poppins, Mar-
tin Lawrence’s Big Momma, Fran Drescher’s Nanny Fine, Robin
Williams’s Mrs. Doubtfire, or Vin Diesel’s Shane Wolfe, to name
just a few. But except for perhaps labor-law lovers, most people
probably have never thought about whether any of these nannies
would have been entitled to overtime pay in the real world. After
all, none of these fictional nannies ever had a story line involving
overtime pay.
In the real world, though, whether a nanny is entitled to
overtime pay presents an important question for both nannies and
their employers. The Fair Labor Standards Act (“FLSA”) governs
the answer to this question. As it turns out, generally, employers
must pay overtime to nannies who work fewer than 120 hours per
week and “reside” off the premises where they work. This case re-
quires us to construe what it means for a nanny to “reside” at her
the house where she works.
Plaintiff Maria Blanco spent roughly three years working as
a nanny and housekeeper for Defendants Anand Samuel and Dr.
Lindsey Finch (together, the “Parents”). For much of that time,
Blanco worked 79 hours each week, beginning with one 23-hour
shift and followed by four 14-hour overnight shifts. At the end of
each shift, Blanco left the Parents’ house until her next shift began.
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22-13669 Opinion of the Court 3
The Parents paid Blanco for all 79 hours she worked each
week. But Blanco believes she is also entitled to overtime compen-
sation for 39 hours of the 79 hours each week and filed this action
to collect the extra wages. The Parents dispute Blanco’s claim for
overtime pay because, in their view, she falls under a provision of
the FLSA that exempts “any employee who is employed in domes-
tic service in a household and who resides in such household” from
receiving overtime compensation. 29 U.S.C. § 213(b)(21). The dis-
trict court agreed with the Parents that Blanco “reside[d]” in their
house, entered summary judgment in the Parents’ favor, and de-
nied Blanco’s motion for summary judgment.
We see things differently. Based on the ordinary meaning of
the term “resides,” we conclude that Blanco did not “reside[]” in
the Parents’ house. Blanco was a night-shift worker who treated
the Parents’ house as her place of employment. She maintained a
separate abode, she was on duty for the entirety of her 79 hours
each week, and two or three other nannies worked the hours when
Blanco didn’t. In short, based on these and other facts we discuss
later, Blanco’s actions and duties show that the Parents’ house was
not her residence. For these reasons, we cannot properly catego-
rize Blanco as a live-in domestic service employee, and she is enti-
tled to overtime compensation for the hours she worked each week
in excess of 40.
Separately, the Parents contend that they individually were
not Blanco’s employer, so they weren’t responsible for paying her
overtime wages. Because we don’t make credibility determinations
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4 Opinion of the Court 22-13669
at this stage, no matter our view of the evidence, we must agree
with the district court that a genuine dispute of material fact exists.
So we remand for a trial on this question.
After careful review of the record, and with the benefit of
oral argument, we affirm in part and vacate in part the district
court’s order and remand for further proceedings.
I. Background
Blanco filed a motion for summary judgment under Federal
Rule of Civil Procedure 56(a). When reviewing a grant of sum-
mary judgment under Rule 56(a), we view the record in the light
most favorable to the nonmoving party and make all factual infer-
ences in that party’s favor. Feliciano v. City of Miami Beach, 707 F.3d
1244, 1252 (11th Cir. 2013).
The Parents did not separately move for summary judg-
ment. Instead, in their reply to Blanco’s motion, they urged the
district court to sua sponte grant summary judgment in their favor,
as Federal Rule of Civil Procedure 56(f )(1) permits. For summary
judgment under that rule, we view the record in the light most fa-
vorable to the nonprevailing party in the district court (here,
Blanco).1
1 Under Rule 56(f)(1), after giving the moving party “notice and a reasonable
time to respond, the court may . . . grant summary judgment for a non-
movant.” Fed. R. Civ. P. 56(f)(1). Although Blanco was the initial moving
party and the Parents urged the court to grant summary judgment to them as
“nonmovant[s],” the Rule 56(f)(1) summary-judgment standard is effectively
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22-13669 Opinion of the Court 5
Blanco appeals both the district court’s Rule 56(f )(1) grant
of summary judgment in favor of the Parents and the district
court’s denial of her Rule 56(a) motion for summary judgment. In
reviewing the district court’s denial of Blanco’s summary-judg-
ment motion, we conclude that Blanco established that she did not
“reside” at the Parents’ house, so she was entitled to summary
judgment on her Rule 56(a) motion as to the overtime-pay issue.
For that reason, we review the facts in the light most favorable to
the Parents as the nonmoving party and draw all factual inferences
in the Parents’ favor.
A. Factual Background
1. Blanco’s Tenure
Maria Blanco began working as a nanny and housekeeper
for the Parents in 2018. During the time the Parents employed her,
the Parents had four daughters, all of whom Blanco looked after
when she was on duty.2 But Blanco wasn’t the only nanny who
worked for the Parents. Rather, at all times, Blanco was one of
several nannies who split the hours of the children’s care, so when
Blanco was on duty, she worked by herself.
When Blanco started working for the Parents in 2018, she
worked one shift per week. That shift ran during the day on
the same as the one for Rule 56(a). For clarity, in the Rule 56(f)(1) context
here, we use the term “nonprevailing party” rather than “nonmoving party.”
2 The Parents’ children were born in 2014, 2015, 2017, and 2018. The Parents
now have five children.
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6 Opinion of the Court 22-13669
Sundays from 10:00 a.m. to 7:00 p.m. In January 2019, after the
unexpected death of a different nanny, Blanco began covering the
late nanny’s shifts, which largely consisted of overnight work. Un-
der her new schedule, Blanco worked 79 hours each week. She
began with a 23-hour shift from Sunday at 10:00 a.m. to Monday at
9:00 a.m. Blanco’s other hours came through four 14-hour shifts
on consecutive days from Monday through Thursday, from 7:00
p.m. to 9:00 a.m. the following morning. Blanco, in other words,
finished her work week on Friday mornings at 9:00 a.m.
At the end of each of her five shifts during each week,
Blanco almost always left the Parents’ house, and a different nanny
took over the childcare duties. The Parents told Blanco that she
was welcome to stay on the premises after her shifts, which she did
on occasion. And sometimes, Blanco would invite friends over to
the Parents’ house. Blanco earned $800–$880 per week.3
While Blanco worked for the Parents, the Parents briefly
lived in a condominium but later moved into a 3-bedroom, 2-bath-
room house. In that house, the Parents slept in the master bed-
room, while two of their daughters slept in each of the other two
bedrooms. During her shifts, Blanco stayed in the room with the
two youngest girls.
Blanco’s responsibilities included housekeeping and clean-
ing, doing the family’s laundry, tending to the children and putting
3 The record is inconsistent as to whether Blanco earned $800 per week, $880
per week, or some amount in between.
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22-13669 Opinion of the Court 7
them to bed, feeding the babies at night, changing diapers, remain-
ing alert to the children and addressing any issues they had over-
night, and waking the children up each morning. According to
Blanco’s deposition testimony, the children woke up often over-
night, and that kept Blanco awake for much of the night. Still,
Blanco acknowledges that she slept for some periods during the
night. And before Blanco rested, she said, she spent the late-night
hours studying English on Duolingo while the girls slept.
For their part, the Parents testified in their depositions that
Blanco slept every night. They knew that, they explained, because
they could hear her snoring from outside the door when they
passed by the bedroom. And Blanco was a heavy sleeper. On two
or three occasions, after returning home late and finding himself
locked out of the house, Samuel had to bang on Blanco’s bedroom
window to ask her to let him in because Blanco did not respond
when Samuel rang the doorbell or called her on the phone.
When Blanco arrived for her shifts, she brought a change of
clothes and an overnight bag. She usually showered at the Parents’
house after the children went to sleep. The room in which Blanco
stayed with the girls was not big. So Blanco had only a small bed
and a nightstand with a lamp, alarm clock, and Amazon Echo
there. According to the Parents, Blanco kept a few clothes and
books in the nightstand. Blanco and the girls’ father Samuel were
both Catholic, and in the house, Blanco placed some religious sym-
bols, such as an open Bible in the living room, a rosary in one bed-
room, and an angel in another.
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8 Opinion of the Court 22-13669
Importantly, when Blanco was not working, she lived with
her aunt at an apartment in North Miami. Although no written
lease memorialized that arrangement, Blanco testified that she paid
rent in cash to her aunt every month. After her shift ended at the
Parents’ home, Blanco usually returned to the apartment and slept
from around 10:00 or 10:30 a.m. until 3:30 or 4:00 p.m. She did not
have a key to the Parents’ house, and she seldom stayed at the
house beyond her shifts. Still, though, the Parents always left the
house unlocked.
Blanco stopped working for the parents in August 2021.
That happened, Blanco testified, because the Parents told her that,
after the birth of their fifth child, they reassessed their childcare
needs and no longer required her services. But according to Dr.
Finch (the mother), Blanco’s release stemmed from her abandon-
ment of the job. Grace Trask, another nanny, fired Blanco.
2. Nanny Employment Structure
As we’ve mentioned, along with Blanco, several other nan-
nies worked in the Parents’ house during the relevant period.
These other nannies were Isabella Toribio, Adrianna Gomez, Shane
Tompkins, and Grace Trask. For most of that period, the Parents
employed the nannies through one of two LLCs, each of which
one of the nannies operated. The first entity was called Nannies
with Love, LLC, and Toribio ran that operation. At some point,
Nannies with Love exited the picture, and the second entity, Amaz-
ing Gracie, LLC, took over. Trask managed Amazing Gracie.
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22-13669 Opinion of the Court 9
Although the parties dispute many facts surrounding the for-
mation and structure of these entities, they do agree on some
points. As relevant here, the Parents were each LLC’s only client,
the Parents paid the LLCs the exact amounts that corresponded
with the nannies’ collective compensation, and the LLCs them-
selves made no profits.
Still, the parties disagree about some things. For example,
Blanco alleges that the Parents directed Toribio and Trask to open
and operate the LLCs, while the Parents deny all involvement in
the formation of the LLCs.
Even more fundamentally, Blanco contends that the Parents
controlled all aspects of her employment, including hiring and fir-
ing, scheduling, compensation, and responsibilities inside the
house. Meanwhile, the Parents deny any involvement with the
nannies’ employment in their house. They claim they “outsourced
all aspects of the nanny operation” to the LLCs, “including sched-
uling, payroll[,] and regulatory compliance.” The Parents assert
that they did not hire the nannies, did not control the nannies, and
were not involved in setting any nanny’s schedule, compensation,
or responsibilities. Rather, the Parents insist, they told the LLCs
only which hours they needed childcare coverage and paid the
LLCs a weekly lump sum, while the LLCs filled in all the remaining
details. Indeed, the Parents claimed, they “had no operational con-
trol over, and knew little about” the LLCs. In short, the Parents
reject the notion that they knew anything about the nannies who
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10 Opinion of the Court 22-13669
worked in their household and cared for their children twenty-four
hours a day, seven days a week.
That said, the Parents do acknowledge that, during an eight-
week period in late 2018 through early 2019 after the Parents had
an “acrimonious” separation with Toribio and Nannies with Love,
the Parents were involved in the employment of the nannies “until
another nanny agency was established.” This arrangement lasted
until the Parents hired Trask and her new entity, Amazing Gracie,
to serve as replacements.
During the eight-week period in which no LLC was in-
volved—the alleged “lone exception” to the Parents’ general policy
of minimizing their personal involvement with their children’s
care—Dr. Finch paid the remaining nannies (including Blanco) di-
rectly by personal check. She also served as their supervisor. Ac-
cording to the Parents, after the Parents’ separation with Nannies
with Love, that LLC’s remaining nannies stopped working for it
and instead “elected to continue to provide nanny services” for the
Parents’ children. Amazing Gracie then hired each of the other
nannies and became their employer.
B. Procedural History
Blanco filed a complaint in state court seeking payment of
overtime wages under the FLSA. According to Blanco, she is enti-
tled to $28,891.59 in overtime pay. So including the FLSA’s
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22-13669 Opinion of the Court 11
liquidated-damages multiplier,4 Blanco seeks a total of $57,783.18,
plus attorneys’ fees.
The Parents removed Blanco’s suit to federal court. Primar-
ily, they argued that she is statutorily exempt from receiving over-
time pay under 29 U.S.C. § 213(b)(21), which excludes “any em-
ployee who is employed in domestic service in a household and
who resides in such household.”5
After discovery, Blanco moved for summary judgment. She
contended that the FLSA makes her a protected employee, does
not exempt her from overtime pay, and entitles her to liquidated
damages.
The Parents opposed the motion. In their view, Blanco was
statutorily exempt from overtime pay, and “substantial evidence”
showed that the Parents were not Blanco’s employer. The Parents
also urged the district court to grant summary judgment in their
favor under Federal Rule of Civil Procedure 56(f )(1).
The district court first denied Blanco’s motion for summary
judgment. It concluded that Blanco was not entitled to overtime
4 Under 29 U.S.C. § 216(b), an employee bringing an FLSA action to collect
overtime pay may recover the amount of that pay plus the same amount in
liquidated damages. In other words, if she is entitled to overtime pay, Blanco
may recover twice the amount she is owed.
5 The Parents initially raised a few other defenses. They asserted that Blanco
improperly seeks payment for sleep and meal time, some de minimis time, and
some time that the statute of limitations bars. But the Parents did not develop
these defenses in the district court, so we do not discuss them further.
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12 Opinion of the Court 22-13669
pay because the record evidence suggested that she was exempt
from overtime pay under section 213(b)(21). As the district court
saw things, under the Department of Labor’s (“Department”) reg-
ulations, Blanco “reside[d]” in the Parents’ house, so she was ex-
empt from overtime pay. The district court also found that a gen-
uine dispute of material fact existed over whether the Parents were
Blanco’s employer.
Besides reaching these conclusions, the district court gave
notice that it would consider applying Rule 56(f ) to support sum-
mary judgment in the Parents’ favor. Then, it scheduled a hearing
to allow Blanco to present arguments.
After the hearing, the district court granted summary judg-
ment for the Parents. It reiterated its conclusion that Blanco was
exempt from overtime pay under section 213(b)(21) and that
Blanco did not create a genuine dispute of material fact on the ap-
plicability of the exemption. Citing record evidence that Blanco
slept during her shifts, the court determined that the evidence sup-
ported summary judgment.
Blanco timely appealed.6
II. Standard of Review
Summary judgment is appropriate when no genuine dispute
of material fact exists and the moving party is entitled to judgment
6 While this appeal was pending, the district court awarded $6,741.58 in costs
to the Parents.
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22-13669 Opinion of the Court 13
as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986). As to Blanco’s Rule 56(a) motion, we re-
view a district court’s grant of summary judgment de novo, con-
struing all evidence in the light most favorable to the nonmoving
party, the Parents. See Harrison v. Culliver, 746 F.3d 1288, 1297 (11th
Cir. 2014). When factual conflicts arise, we “must credit the non-
moving party’s version.” Feliciano, 707 F.3d at 1252 (alteration
adopted) (citation omitted). But summary judgment may be
proper when the question before the district court is purely a ques-
tion of law. Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th
Cir. 2011).
On the other hand, even if a court “believes the evidence
presented by one side is of doubtful veracity, it is not proper to
grant summary judgment on the basis of credibility choices.” Mil-
ler v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006). Indeed, the court
cannot discount a party’s testimony on summary judgment “unless
it is blatantly contradicted by the record, blatantly inconsistent, or
incredible as a matter of law, meaning that it relates to facts that
could not have possibly been observed or events that are contrary
to the laws of nature.” Feliciano, 707 F.3d at 1253. And we’ve rec-
ognized that a nonmoving party can create a genuine dispute of
material fact even if its evidence “consists primarily or solely of [its]
own self-serving sworn statements or testimony.” Patterson v. Ga.
Pac., LLC, 38 F.4th 1336, 1351 (11th Cir. 2022). “‘Credibility deter-
minations, the weighing of the evidence, and the drawing of legit-
imate inferences from the facts are jury functions, not those of a
judge,’ so they are not appropriate determinations to make at the
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14 Opinion of the Court 22-13669
summary judgment stage.” Butler v. Gualtieri, 41 F.4th 1329, 1334
(11th Cir. 2022) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)).
III. Discussion
Our discussion proceeds in two parts. We first consider
whether the FLSA’s exemption for live-in domestic service employ-
ees excludes Blanco from overtime-payment eligibility. Second, we
assess whether the Parents have raised a genuine dispute of mate-
rial fact as to whether they were Blanco’s employer.
A. Blanco is not exempt from overtime pay.
1. Under the FLSA, Blanco did not reside at the Parents’ house.
The FLSA entitles many workers to overtime compensa-
tion—time-and-a-half pay—for each hour of work exceeding forty
hours per week. 29 U.S.C. § 207(a); see Thompson v. Regions Sec.
Servs., Inc., 67 F.4th 1301, 1305 (11th Cir. 2023). Congress designed
the overtime provision “both to ‘compensate employees for the
burden’ of working extra-long hours and to increase overall em-
ployment by incentivizing employers to widen their ‘distribution
of available work.’” Helix Energy Sols. Grp., Inc. v. Hewitt, 598 U.S.
39, 44 (2023) (alteration adopted) (quoting Overnight Motor Transp.
Co. v. Missel, 316 U.S. 572, 577 (1942)).
But not all workers are eligible for overtime compensation.
The FLSA “exempts certain categories of workers from its protec-
tions, including the overtime-pay guarantee.” Id.; 29 U.S.C.
§ 213(b). The exemption at issue here excludes “any employee who
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22-13669 Opinion of the Court 15
is employed in domestic service in a household and who resides in
such household.” 29 U.S.C. § 213(b)(21). We will call this provision
the live-in service exemption.
Congress enacted the live-in service exemption in 1974
when it amended the FLSA “to include many ‘domestic service’
employees not previously subject to its minimum wage and maxi-
mum hour requirements.” Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158, 162 (2007); Fair Labor Standards Amendments of
1974, Pub. L. 93-259, § 7, 88 Stat. 55, 62 (1974). Though the amend-
ments broadened FLSA’s coverage of domestic service workers,
they exempted certain workers from coverage, including through
the live-in service exemption. Long Island Care, 551 U.S. at 162.
For the live-in service exemption to apply, the employee
must (1) work in domestic service, (2) work in a household, and (3)
reside in that household. See 29 U.S.C. § 213(b)(21). The parties
agree that Blanco meets the first two requirements. But they dis-
pute whether she “reside[d]” in the Parents’ household. So we
must interpret the statute and apply it to the undisputed facts in the
record to determine whether Blanco “reside[d]” with the Parents,
as the FLSA contemplates that term.
The Supreme Court has provided instructions for how we
should interpret the FLSA’s exemptions. In the past, courts had
construed the exemptions narrowly against the employers assert-
ing them. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960).
But we no longer do so after the Supreme Court’s decision in En-
cino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018). In Encino
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16 Opinion of the Court 22-13669
Motorcars, the Court explained that “the FLSA gives no ‘textual in-
dication’ that its exemptions should be construed narrowly,” so
“there is no reason to give them anything other than a fair (rather
than a ‘narrow’) interpretation.” Id. (quoting Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 363
(2012)). After all, the Supreme Court reasoned, the exemptions in
section 213(b) “are as much a part of the FLSA’s purpose as the
overtime-pay requirement.” Id.7
To construe the live-in service exemption, we begin (as we
always do) with the statutory text. See Thompson, 67 F.4th at 1305.
The FLSA does not define “resides.” Nor have the Supreme Court
or we construed the FLSA’s use of that term. So to determine the
meaning of “resides,” we turn to its “plain meaning at the time of
enactment.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020). Based on
contemporaneous dictionary definitions, to “reside” means “to
dwell permanently or continuously; have a settled abode for a time;
have one’s residence or domicile.” Reside, Webster’s Third New Int’l
Dictionary, Unabridged 1971 (1971);8 see also United States v. Sabhnani,
7 Nevertheless, the employer generally bears the burden of proving that an
exemption applies. See Corning Glass Works v. Brennan, 417 U.S. 188, 196–97
(1974); Fowler v. OSP Prevention Group, Inc., 38 F.4th 103, 105 (11th Cir. 2022).
8 This definition parallels others from around 1974, when Congress enacted
the language. See e.g., Reside, Black’s Law Dictionary 1473 (4th ed. rev. 1968)
(“Live, dwell, abide, sojourn, stay, remain, lodge.”); Reside, Webster’s New
World Dictionary 1209 (2d college ed. 1972) (“To dwell for a long time; have
one’s residence; live.”); Reside, Shorter Oxford English Dictionary 1806 (3d ed.
1973) (“To dwell permanently or for a considerable time, to have one’s settled
or usual abode, to live, in or at a particular place.”).
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22-13669 Opinion of the Court 17
599 F.3d 215, 256 (2d Cir. 2010) (adopting a similar definition). In
other words, to determine whether Blanco “reside[d]” at the Par-
ents’ house, we must examine whether she lived there.
Applying that definition, the undisputed facts in the record
show that Blanco did not “reside[]” at the Parents’ house. At all
times, Blanco was one of three or four nannies who worked in
shifts at the Parents’ house. Blanco arrived at the house on Sunday
mornings, worked for 23 hours, and then worked four 14-hour
shifts during the rest of the week. So she was generally at the Par-
ents’ house for less than half of the week (79 out of 168 hours). In
between her five shifts, Blanco usually left the Parents’ house and
returned to the apartment she shared with her aunt to carry on
with her own life.
And when she was at the Parents’ house, Blanco was always
working and on duty. To be sure, Blanco slept at times during the
night while she was on duty and the children in her room were fast
asleep. But even so, Blanco remained on duty at those times. So if
a child cried during the night, it was Blanco’s job to immediately
respond to that child. In other words, though Blanco may have
slept sometimes while the children slept, her time was not hers.
Indeed, the Parents paid Blanco to be on call for all the hours of her
shift. See 29 C.F.R. § 785.21 (“An employee who is required to be
on duty for less than 24 hours is working even though [s]he is per-
mitted to sleep or engage in other personal activities when not busy
. . . It makes no difference that she is furnished facilities for
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18 Opinion of the Court 22-13669
sleeping. Her time is given to her employer. She is required to be
on duty and the time is worktime.”).
To put an even finer point on it, the bed Blanco sometimes
slept in—which, as we’ve noted, wasn’t in her own space but in the
same room as two of the children—wasn’t even hers. She shared
it with the two or three other nannies. Because the three or four
nannies weren’t all at the Parents’ house at the same time, they ef-
fectively tag-teamed the single bed, each using that same bed on
their own shifts. That is hardly a typical arrangement at one’s own
residence. And if the Parents were right, that would mean that all
three or four nannies who shared that single bed in the children’s
room lived at the Blanco house, merely because they sometimes
slept there. So on this record, the fact that Blanco sometimes slept
in the shared bed, while the children in her care also slept, does not
help the Parents’ case that she “reside[d]” at their house.
Nor did Blanco spend any real leisure time at the house, and
she kept few personal belongings there. So every time Blanco ar-
rived for a shift, she had to bring an overnight bag and change of
clothes with her.
From these facts, viewed in the Parents’ favor, we cannot
conclude that Blanco “reside[d]” at the Parents’ house. No doubt
Blanco worked at the house and spent significant time there. But
that alone does not mean she “reside[d]” there any more than fire-
fighters who sleep in fire-station dormitories while on duty reside
at a fire station. The record contains no evidence that Blanco con-
sidered the Parents’ house to be her own home. She maintained a
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22-13669 Opinion of the Court 19
separate address and spent as much time away from the Parents’
house as she spent at the house. She also did not usually spend any
time at the house between 9:00 a.m. and 7:00 p.m. on the days she
was scheduled to work. Nor did she usually spend any time there
on Fridays or Saturdays after her weekly shifts ended.9 What’s
more, Blanco did not even have her own key to the Parents’ house.
In short, her behavior was inconsistent with “resid[ing]” there.
The Parents emphasize certain parts of the record to sup-
port their argument that Blanco “reside[d]” in their house. We are
not persuaded.
First, the Parents stress that Blanco sometimes slept when
she tended to the children overnight. We’ve already explained why
that doesn’t help the Parents here.
The Parents also contend that Blanco “treated [their] home
as her residence” for three other reasons. The Parents note that
Blanco (1) stored clothing, books, and papers in the nightstand,
kept an alarm clock on the nightstand, placed an open Bible in the
living room, and affixed religious paraphernalia around the house;
(2) regularly made breakfast for herself after the school-aged chil-
dren left for school; and (3) hosted guests from time to time.
To support the first aspect of their arguments, the Parents
submitted a declaration from one of the other nannies, Adrianna
Gomez. More specifically, Gomez said that Blanco kept religious
9 The lone exception occurred when Blanco agreed to cover the Friday or Sat-
urday shifts of the other nannies, which the record shows she did sometimes.
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20 Opinion of the Court 22-13669
books, cosmetics, slippers, and socks in the children’s room with
the nannies’ bed. Gomez also attested that the alarm clock in the
bedroom belonged to Blanco. And Samuel said Blanco placed a fan
and an air purifier by her bedside (though Blanco testified that the
fan belonged to the Samuel family).
Blanco did not dispute that she placed certain items around
the house. She testified at her deposition that she bought a protect-
ing angel statute and gave it to the girls. She hung one rosary that
belonged to her over the bed designated for her (and the other nan-
nies) and another rosary that belonged to the family in the bed-
room that the two older daughters shared. Blanco also opened a
Bible to a particular verse to protect the home from illness. She
testified that she did these things out of her concern for the girls
and based on her Catholic faith, which she shared with Samuel.
Even after we credit Gomez’s declaration and make all infer-
ences in the Parents’ favor, our conclusion remains the same:
Blanco did not “reside[]” in the Parents’ house, as the FLSA uses
that term. That Blanco kept a few belongings at the Parents’ house
does not mean she treated the house as her residence. Just as many
office workers keep personal effects—clothing, photos, religious
items, and other personal mementos—at their place of employ-
ment, Blanco kept a few items in the bedroom where she spent
much of her time at work.
And given that Blanco testified that she placed religious ob-
jects in the house to protect her charges, Blanco’s display of a bible
verse, a couple of rosaries, and an angel around the house are also
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22-13669 Opinion of the Court 21
unremarkable. She saw her placement of those items as helping
her care for the children—what she was hired to do. The presence
of Blanco’s few stray belongings didn’t make her place of employ-
ment her residence. Nor did the Parents’ testimony about eating
breakfast at the Parents’ house or having an occasional houseguest
turn their house into Blanco’s residence any more than eating
breakfast at the office or having a friend stop by an employee’s
workplace makes that workplace the employee’s residence.
To establish that Blanco “reside[d]” at their home, or to cre-
ate a genuine issue of material fact on this question, the Parents
needed to submit additional evidence to suggest that she did, in
fact, live there. On this record, they have failed to do so.
By all accounts, Blanco maintained a separate residence at
her aunt’s apartment and returned there after her shifts were over.
That she worked long hours at the Parents’ house does not mean
she also resided there. The common understanding of a “resi-
dence” precludes the conclusion that the Parents’ house was
Blanco’s residence.
The Parents contend that our conclusion that Blanco did not
“reside” in their house conflicts with the Second Circuit’s decision
in United States v. Sabhnani. Even if Sabhnani were binding—it’s
not—we disagree that the two decisions are inconsistent. In Sa-
bhnani, the defendants forced two domestic workers to live in the
defendants’ house and work there for minimal wages. 599 F.3d 215,
224–32 (2d Cir. 2010). Because the workers were brought to the
United States from Indonesia and had nowhere else to go, the
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22 Opinion of the Court 22-13669
Second Circuit concluded that they “reside[d]” at the defendants’
house. Id. at 256–57. In contrast, here, Blanco spent only her paid
work hours at the Parents’ house and returned to her own apart-
ment at the end of each of her shifts. She is not similarly situated
to the workers in Sabhnani. Unlike those workers, she was not a
permanent resident in the defendants’ home for any period.
In sum, after reviewing the record and making all inferences
in the Parents’ favor, we conclude that Blanco did not “reside[]” in
the Parents’ house. For that reason, Blanco falls outside the FLSA’s
live-in service exemption, and she is entitled to overtime pay from
her employer10 for each hour she worked over forty hours per
week.
2. The Department regulations that the Parents cited do not establish
that Blanco resided at the Parents’ house.
Our decision flows directly from the statutory text. Still,
though, the Parents focus on Department regulations that they be-
lieve bear on the meaning of the term “resides.” See Appellees’ Br.
at 9–37. We take a moment to explain why we conclude that, even
considering these regulations, Blanco did not “reside” at the Par-
ents’ house.11
10 As we discuss in Section III.B, a fact issue exists as to who or what entity was
Blanco’s employer.
11 As we note in the first sentence of the paragraph above, we agree with our
colleague Judge Hull that “the statutory text of the Fair Labor Standards Act .
. . is unambiguous and dispositive of the issue on appeal.” That said, the par-
ties and the district court spent much time addressing the regulations as well.
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22-13669 Opinion of the Court 23
In parts of the 1974 FLSA amendments, Congress expressly
empowered the Secretary of Labor to define certain statutory
terms through regulations. E.g., 29 U.S.C. § 213(a)(15) (noting that
exemptions apply to certain employees in “domestic service em-
ployment . . . as such terms are defined and delimited by regula-
tions of the Secretary”); see also Long Island Care, 551 U.S. at 165
(“the FLSA explicitly leaves gaps” for the Department to fill
“through rules and regulations”). Although Congress did not make
such an indication for the term “resides,” the 1974 amendments
also included a broad, general grant of rulemaking authority, au-
thorizing the Secretary of Labor “to prescribe necessary rules, reg-
ulations, and orders with regard to the amendments made by this
Act.” Pub. L. 93-259, § 29(a); see also Home Care Ass’n of Am. v. Weil,
799 F.3d 1084, 1091 (D.C. Cir. 2015) (recognizing the Department’s
broad authority).
We begin by observing that the Department has promul-
gated regulations about live-in service workers. Still, though, none
of those regulations expressly define “resides.” But in regulatory
materials, the Department has elaborated on its view of when a
worker “resides” at her employer’s premises.
In 2013, the Department promulgated a Final Rule further
developing its interpretation of certain FLSA provisions, including
the applicability of overtime provisions to domestic service
So while we don’t need to address them because the statutory text answers
our question, we think it makes sense to explain why, even if we considered
the regulations, it would make no difference to the outcome here.
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24 Opinion of the Court 22-13669
workers. Application of the Fair Labor Standards Act, 78 Fed. Reg.
60,454 (Oct. 1, 2013) (codified at 29 C.F.R. § 552) (“2013 Final
Rule”). In the preamble to the 2013 Final Rule,12 the Department
said it promulgated the Rule to “better reflect Congressional intent
given the changes to the home care industry and workforce since
that time.” 78 Fed. Reg. at 60,454. And “[t]he major effect of th[e]
Final Rule,” in the Department’s view, was “that more domestic
service workers w[ould] be protected by the FLSA’s minimum
wage, overtime, and recordkeeping provisions.” Id.
The preamble to the 2013 Final Rule addressed the statutory
live-in service exemption found at 29 U.S.C. § 213(b)(21), the provi-
sion that governs here. In the preamble, the Department explained
that a person is a live-in employee if she “resides on [her] em-
ployer’s premises on a ‘permanent basis’ or for ‘extended periods
of time.’” Id. at 60,474 (citing 29 C.F.R. § 785.23; U.S. Dep’t of La-
bor, Wage & Hour Div., Field Operations Handbook § 31b20).
The preamble then provided guidance on what the Depart-
ment meant by the phrase “extended period of time.” First, the
Department considers whether the employee spends 120 hours or
more on her employer’s premises each week. Id. If so, the em-
ployee “resides” there. For employees like Blanco who spend “less
than 120 hours per week . . . working and sleeping on the em-
ployer’s premises,” the Department has explained, they may
12 The preamble was not codified in the Code of Federal Regulations.
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22-13669 Opinion of the Court 25
“reside” on the premises for an “extended period of time” if they
spend “five consecutive days or nights” there. Id.
But as it turns out, the phrase “five consecutive days or
nights” enjoys its own specialized meaning. To explain that phrase,
the Department offered examples. The 2013 Final Rule stated that
“employees who reside on the employer’s premises five consecutive
days from 9:00 a.m. Monday until 5:00 p.m. Friday (sleeping four
straight nights on the premises) would be considered to reside on
the employer’s premises for an extended period of time.” Id. And
“[s]imilarly, employees who reside on an employer’s premises five
consecutive nights from 9:00 p.m. Monday until 9:00 a.m. Saturday
would also be considered to reside on their employer’s premises for
an extended period of time.” Id.
The Parents focus solely on the part of this illustration that
mentions “five consecutive nights.” Then, noting that Blanco
worked and slept at their house on Sunday, Monday, Tuesday,
Wednesday, and Thursday nights, they argue that she satisfies the
definition because she spent “five consecutive days or nights there.”
We see two problems with this argument. First, the statu-
tory language of section 213(b)(21) is not ambiguous, so we don’t
get to the Department’s interpretation (which is not itself a regula-
tion). And second, even if we applied the Department’s interpre-
tation, that would require the same conclusion that we reach:
Blanco did not “reside” at the Parents’ house. We explain each an-
swer in turn.
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26 Opinion of the Court 22-13669
Starting with whether the Department’s interpretation is en-
titled to any deference, we find it is not. As we’ve discussed, our
analysis of the statutory text compels the conclusion that Blanco
did not “reside[]” in the Parents’ house.
And even if we considered the language in the 2013 Final
Rule, we could not ignore that the key language appears only in the
preamble to the 2013 Final Rule rather than in the Department’s
regulations themselves. That distinction likely makes a difference.
Definitions that appear in the preamble and the Federal Register
but do not appear in the Code of Federal Regulations do not enjoy
the force of law. AT&T Corp. v. FCC, 970 F.3d 344, 350 (D.C. Cir.
2020) (“[T]he real dividing point between the portions of a final
rule with and without legal force is designation for publication in
the Code of Federal Regulations.” (citation and internal quotation
marks omitted)).13 After all, any definitions that appear in only a
preamble have not undergone the notice-and-comment process, so
they do not necessarily reflect the agency’s considered position. See
id. at 350–51; cf. Wyeth v. Levine, 555 U.S. 555, 580 (2009) (declining
to defer to agency’s preamble in part because it did not go through
notice-and-comment).
To be sure, courts have recognized that a regulation’s pre-
amble can offer “evidence of an agency’s contemporaneous
13 As the District of Columbia Circuit has done, we “reserve[] a possibility that
statements in a preamble may in some unique cases constitute binding, final
agency action susceptible to judicial review.” AT&T Corp., 970 F.3d at 350
(internal quotation marks and citation omitted).
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22-13669 Opinion of the Court 27
understanding of its proposed rules.” Wy. Outdoor Council v. U.S.
Forest Serv., 165 F.3d 43, 53 (D.C. Cir. 1999). And we have said that
regulatory preambles can “provide[] some guidance” on the mean-
ing of an agency’s regulations. Watkins v. City of Montgomery, 775
F.3d 1280, 1284 (11th Cir. 2014). But we are unaware of any au-
thority suggesting that the language an agency uses in a preamble
should be awarded the same weight as if the agency chose to for-
mally use the language in the regulation itself.14 And without a def-
inition of “resides” that appears in the Department’s codified regu-
lations, we do not conclude that the preamble to the 2013 Final
Rule is dispositive here.
Still, though, we can consider the Department’s definition
of what it means to “reside” and work at an employer’s premises
for an “extended period of time” for any persuasive value it has.
Because the Department’s interpretation applies the plain meaning
of section 213(b)(21)’s text, we find it has persuasive value.
That brings us to the second reason we must reject the Par-
ents’ argument that the Department’s construction of “resides”
supports them. As we’ve noted, the Parents homed in on the
14 The Parents suggest that the Supreme Court’s recent decision in Bittner v.
United States, 598 U.S. 85 (2023), supports their argument that the preamble to
the 2013 Final Rule can receive controlling weight. In Bittner, the Court con-
sidered a statute’s enumerated purpose in its statutory-interpretation analysis
and noted that “[a] preamble, purpose clause, or recital is a permissible indica-
tor of meaning.” 598 U.S. at 98 n.6 (citation omitted). But an agency regula-
tion’s preamble—that has not been through notice and comment—is not like
a statute’s enumerated preamble that Congress has affirmatively enacted.
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28 Opinion of the Court 22-13669
preamble’s language about “five consecutive nights” to argue that
Blanco resided in their house. But this construction ignores part of
the definition. It does not account for the context in which this
phrase appears.
The language “five consecutive days from 9:00 a.m. Monday
until 5:00 p.m. Friday (sleeping four straight nights on the prem-
ises)” refers to an uninterrupted period of four-and-(roughly)-one-
half consecutive 24-hour days (so a shift of five straight days that
includes the four consecutive nights in between).15 In the same
way, the “five consecutive nights” language contemplates an unin-
terrupted period of four-and-(roughly)-one-half consecutive 24-
hour days, but beginning with a night (so a shift of five consecutive
nights that includes the four straight days in between). In other
words, the preamble did not consider a period of “five consecutive
nights” of duty, interrupted by the four intervening days off duty,
to satisfy its illustration of the meaning of “an extended period of
time,” and thus “resid[ing].”
Given this language, it’s perhaps unsurprising that the De-
partment asserted precisely this interpretation in an amicus brief it
15 As a reminder, the 2013 Final Rule stated that “employees who reside on the
employer’s premises five consecutive days from 9:00 a.m. Monday until 5:00
p.m. Friday (sleeping four straight nights on the premises) would be consid-
ered to reside on the employer’s premises for an extended period of time.” 78
Fed. Reg. at 60,474. And similarly, “employees who reside on an employer’s
premises five consecutive nights from 9:00 p.m. Monday until 9:00 a.m. Satur-
day would also be considered to reside on their employer’s premises for an
extended period of time.” Id.
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22-13669 Opinion of the Court 29
filed here. As the Department explained, this language from the
preamble derives from a 1981 Opinion Letter from the Depart-
ment’s Wage and Hour Division. U.S. Dep’t of Labor, Wage &
Hour Div., Opinion Letter WH-505, 1981 WL 179033 (Feb. 3, 1981)
(“1981 Opinion Letter”). In that letter, the Department clarified
that an employee who spent an uninterrupted period of four days
and five nights or four nights and five days (that is, a total of just
under 120 hours straight) on the employer’s premises qualified as
one who “reside[d]” there, if “the facilities offered by the employer
provide a home-like environment with private quarters separate
from the residents of the” home. Id. at *1–2.
In making this point, the Opinion Letter stated,
Employees who are on duty from 9 a.m. Monday until
5 p.m. Friday would also be considered to reside on
the employer’s premises. Even though on duty for
less than 120 hours, they are on duty for five consec-
utive days (Monday through Friday). The fact that
they sleep over only four nights does not matter. Sim-
ilarly, employees who are on duty from 9 p.m. Monday
until 9 a.m. Saturday would also be considered to re-
side on their employer’s premises since they are on
duty for five consecutive nights (Monday night
through Friday night).
Id. at *2 (emphases added). Here, Blanco did not remain at the Par-
ents’ house during the days between her consecutive nights on
duty. So under the preamble language, Blanco does not qualify as
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30 Opinion of the Court 22-13669
having spent “an extended period of time” at the Parents’ house.
And as a result, she did not “reside” there.16
The Parents resist this conclusion. They cite other examples
in Department regulatory materials for the proposition that an em-
ployee can leave her employer’s premises while she is off duty and
still “reside” there. And of course, that is true. But none of the
examples the Parents cite help them.
For starters, the Parents’ examples are not designed to assess
when an employee “resides” at the employer’s premises. Rather,
the Department created them to illustrate when an employee must
be paid for hours they are not actually working. That issue is not
before us.
Take the first example the Parents cite. It involves a live-in
direct-care worker who assists her roommate in the morning,
leaves the residence to attend classes, and then returns “home” to
the premises in the evenings where she spends time further assist-
ing her roommate but also spends time studying, watching televi-
sion, and doing her laundry. 78 Fed. Reg. at 60,492. This example,
which comes from a different part of the preamble to the 2013 Fi-
nal Rule, explains that “the hours spent engaged in personal pur-
suits are considered bona fide off-duty time and are not
16 We need not consider whether the language of the Opinion Letter offers
another reason why Blanco didn’t “reside” at the Parents’ house: the bed she
shared with the other nannies was not “separate from” the quarters of the chil-
dren she cared for. In any event, it’s clear for the other reasons we’ve identi-
fied that Blanco did not “reside” at the Parents’ house.
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22-13669 Opinion of the Court 31
compensable hours.” Id. But that tells us nothing—and is not in-
tended to tell us anything—about the issue we must address:
whether Blanco “reside[d]” at the Parents’ house. And even if we
could squeeze out some relevance to our issue, it wouldn’t help the
Parents. Unlike in Blanco’s case, the hypothetical worker appar-
ently lives full-time at the premises. And even if she doesn’t, it’s
clear she spends significant time in pursuit of her own interests,
needs, and leisure there. Blanco did not.
The Parents also invoke a Department Fact Sheet that envi-
sions a live-in domestic service worker who assists her disabled em-
ployer in the mornings, leaves the residence to work at a different
part-time job while her employer works at his own job, and then
returns to the home with her employer where she provides addi-
tional care until he retires for the evening. U.S. Dep’t of Labor,
Wage & Hour Div., Fact Sheet #79D: Hours Worked Applicable to
Domestic Service Employment Under the Fair Labor Standards Act
(FLSA) (Apr. 2016). But again, this example contemplates that the
“employee . . . lives on the employer’s premises.” Id. The Depart-
ment offers the example only to show that “[a]n employee who
lives on the employer’s premises is not necessarily considered work-
ing all the time he or she is on the premises.” Id. That’s not at issue
here, so this example is not helpful.17
17 The Parents rely on several other regulatory documents that the Depart-
ment has published over the past few decades, which they say support their
argument that Blanco “reside[d]” in their house. These include the following:
U.S. Dep’t of Labor, Wage & Hour Div., Administrator’s Interpretation No.
2014-1 (Nov. 17, 2016); U.S. Dep’t of Labor, Wage & Hour Div., Field Assistance
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32 Opinion of the Court 22-13669
Besides these materials, the Parents cite the Eighth Circuit’s
decision in Bouchard v. Regional Governing Board of Region V Mental
Retardation Services, 939 F.2d 1323 (8th Cir. 1991). But Bouchard does
not alter our determination. There, the employees not only
worked at the employer’s facility but also spent off-duty time sleep-
ing there. Id. at 1330–31. So the few hours they spent away from
the employer’s premises each day did not change the conclusion
that they resided at their employer’s facility. Id. As we’ve explained,
Blanco did not spend any off-duty time at the Parents’ house. Ra-
ther, she returned to her aunt’s apartment during the daytime
hours.
Bulletin No. 2016-1 (Apr. 25, 2016); U.S. Dep’t of Labor, Wage & Hour Div.,
Fact Sheet #79B: Live-in Domestic Service Workers Under the Fair Labor
Standards Act (FLSA) (Sept. 2013); U.S. Dep’t of Labor, Wage & Hour Div.,
Field Operations Handbook, §§ 31b20, 25n02(c)(2); and U.S. Dep’t of Labor,
Wage & Hour Div., Enforcement Letter, 1988 WL 614199 ( June 30, 1988). We
do not discuss these documents further because they use similar language to
the 2013 Final Rule. In fact, the 2013 Final Rule cited many of these docu-
ments, and the Department noted there that it “did not propose any changes
to the definition of live-in domestic service employee or otherwise discuss the
requirements for meeting the live-in domestic service exemption[.]” 78 Fed.
Reg. at 60,474. In other words, the Preamble to the 2013 Final Rule repeated
the same standards the Department had used in the cited materials to deter-
mine whether an employee is a live-in service worker. So for the same reasons
the language in the 2013 Final Rule supports Blanco’s argument that Blanco
did not reside in the Parents’ house, that same language in the other sources
the Parents cite also counsels against their position.
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22-13669 Opinion of the Court 33
In sum, we agree with the Department’s interpretation of
the preamble to the 2013 Final Rule. But that’s because it is con-
sistent with the plain meaning of the statutory text.
And even if the statutory text were ambiguous—we don’t
think it is for the reasons we’ve explained—we would value the De-
partment’s interpretation only for its “power to persuade.” Skid-
more v. Swift & Co., 323 U.S. 134, 140 (1944). As the Supreme Court
explained, the “general rule . . . is not to give deference to agency
interpretations advanced for the first time in legal briefs,” unless
the interpretation reflects the agency’s “fair and considered judg-
ment on the matter in question.” Kisor v. Wilkie, 139 S. Ct. 2400,
2417 n.6 (2019) (quoting Auer v. Robbins, 519 U.S. 452, 462 (1997)).
Here, we would not defer to the Department’s position in its ami-
cus brief but instead evaluate the weight of the Department’s judg-
ment based on “the thoroughness evident in its consideration, the
validity of its reasoning, [and] its consistency with earlier and later
pronouncements,” among other factors. Skidmore, 323 U.S. at 140.
The Department’s reliance on decades of its own formal interpre-
tations of what it means to “reside” on an employer’s premises re-
flect the breadth and depth of its consideration of the issue before
us. See id. So we would find the Department’s brief to be persua-
sive if we had to look past the statutory text.
All told, the Department’s applicable regulations and inter-
pretive documents establish that Blanco did not “reside[]” in the
Parents’ house. So even under this analysis, Blanco would not be
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34 Opinion of the Court 22-13669
exempt from overtime pay under the FLSA’s live-in service exemp-
tion, and the Parents were not entitled to summary judgment.
In sum, as to overtime pay for Blanco, we vacate the district
court’s grant of summary judgment in favor of the Parents, reverse
the district court’s denial of Blanco’s motion for summary judg-
ment, and conclude Blanco is entitled to overtime pay.
B. A factual dispute exists over whether the Parents
were Blanco’s employer.
The Parents argue that, if Blanco is entitled to overtime pay,
they are not responsible for paying her overtime wages because
they were not her “employer” as the FLSA defines that term. See
29 U.S.C. § 207 (requiring only an “employer” to pay overtime
wages). Rather, the Parents assert, Blanco’s actual employers were
the two LLCs: Nannies with Love and Amazing Gracie.
The district court found a genuine dispute of material fact
as to whether the Parents were Blanco’s employer. Blanco appeals
that decision and asks us to enter summary judgment in her favor.
We cannot do that because we agree with the district court.
As we’ve explained, on review of an order on summary judg-
ment, we apply the same standards as the district court. So on this
separate issue we must view the record in the light most favorable
to the Parents and make all inferences in their favor. Feliciano, 707
F.3d at 1252. And when we do that, we must conclude that a gen-
uine dispute of material fact exists and precludes summary judg-
ment.
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22-13669 Opinion of the Court 35
Under the FLSA, to “employ” means “to suffer or permit to
work.” 29 U.S.C. § 203(g). And the definition of “employer” in-
cludes “any person acting directly or indirectly in the interest of an
employer in relation to an employee.” Id. § 203(d). The Supreme
Court has described the definition of “employ” as one with “strik-
ing breadth.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326
(1992) (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 728
(1947)). We have said that the “statutory ‘suffer or permit to work’
definition is one of the broadest possible delineations of the em-
ployer-employee relationship.” Garcia-Celestino v. Ruiz Harvesting,
Inc., 843 F.3d 1276, 1287 (11th Cir. 2016) (quoting 29 U.S.C.
§ 203(g)).
“[U]nder this expansive approach, an entity is deemed to em-
ploy a worker where, as a matter of ‘economic reality’ and under
all the circumstances, the worker is ‘economically dependent’ on
the hiring entity.” Id. (quoting Aimable v. Long & Scott Farms, 20 F.3d
434, 439 (11th Cir. 1994)). Any label the parties may place on their
relationship and any contracts that may govern that relationship do
not control whether an employer-employee relationship exists.
Scantland v. Jeffry Knight, Inc., 721 F.3d 1308, 1311 (11th Cir. 2013).
Rather, we answer that question by homing in on “whether ‘the
work done, in its essence, follows the usual path of an employee.’”
Id. (quoting Rutherford Food, 331 U.S. at 729).
To help us determine whether an entity qualifies as an “em-
ployer” under the FLSA’s “suffer or permit to work’ standard,” we
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36 Opinion of the Court 22-13669
consider the eight Aimable factors. Garcia-Celestino, 843 F.3d at
1294. Those factors include the following:
(1) the nature and degree of control of the workers; (2) the
degree of supervision, direct or indirect of the work; (3) the
power to determine the pay rates or the methods of pay-
ment of the workers; (4) the right, directly or indirectly, to
hire, fire, or modify the employment conditions of the
workers; (5) preparation of payroll and the payment of
wages; (6) ownership of facilities where work occurred; (7)
performance of a specialty job integral to the business; and
(8) investment in equipment and facilities.
Id. (alterations adopted) (citation and internal quotation marks
omitted).
We’ve also outlined five overarching principles that inform
our application of the Aimable factors. First, “in joint employer
cases, rather than fixating on whether the worker is relatively more
dependent on one putative employer than the other,” we “focus on
the worker’s relationships with each putative employer.” Id. (cita-
tions omitted). Second, “no one factor is dispositive” in this analy-
sis. Id. Third, the weight we give to each of the eight Aimable fac-
tors “depend[s] upon the extent to which it is probative of the
worker’s economic dependence on the putative employer under
the circumstances.” Id. Fourth, our review is not an exercise in
addition and subtraction. Rather, we consider the evidence “holis-
tically and qualitatively.” Id. Fifth and finally, we’ve recognized that
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22-13669 Opinion of the Court 37
“common law principles of employment have no bearing” on the
analysis. Id.
Before we apply the Aimable factors to Blanco’s case, we re-
iterate that, at this stage, we must view the record in the light most
favorable to the Parents and make reasonable inferences in their
favor. As we’ve emphasized, “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge[.]” Strickland
v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (quoting
Anderson, 477 U.S. at 255).
The Parents disclaim any involvement with controlling, su-
pervising, hiring, firing, and paying the nannies. Dr. Finch (the chil-
dren’s mother) testified at her deposition that she could not recall
giving any of the nannies any directions about how to care for her
children. Nor did Dr. Finch know any details about Blanco’s re-
sponsibilities and duties within the house. The only job require-
ment, from Dr. Finch’s perspective, was that an adult would come
to the house to care for the children.
Dr. Finch also swore in her declaration that she “did not con-
trol or supervise Ms. Blanco to any meaningful degree.” She at-
tested that she “outsourced all aspects of the nanny operations in-
cluding scheduling, payroll and regulatory compliance” to the
LLCs. Dr. Finch’s only role, she claimed, was to “indicate[] to the
agency the coverage [she] needed (i.e., what hours [she] needed a
nanny).” But she “did not direct who among the nannies appeared
at any particular time, or what specific duties each nanny had (such
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38 Opinion of the Court 22-13669
as preparing meals, bathing, dressing for school or for bed, etc.).”
The Parents also represented that they “had no operational control
over, and knew little about” Amazing Gracie.
Nor did the Parents “determine the rate and method of pay-
ment each week,” according to Dr. Finch. And they did not know
how much each nanny was paid. Dr. Finch attested that she gener-
ally paid Amazing Gracie one lump sum of around $2,400 each
week without any knowledge of which nanny received which
amount.
Dr. Finch also disclaimed any involvement in hiring and fir-
ing Blanco. In fact, at her deposition, Dr. Finch testified that she
did not know how Blanco came to work for the family. And she
said that Blanco’s departure stemmed from her own abandonment
of the job.
But other record evidence creates disputes about the Par-
ents’ degree of control over the nannies. For example, Grace
Trask—one of the nannies and the principal of Amazing Gracie—
testified at her deposition that she did not tell the other nannies
what to do or otherwise supervise them, and that she did not have
the right to discipline or fire them. Trask also testified that the Par-
ents gave instructions about caring for the children, such as which
activities were scheduled and which tasks needed to be done
around the house. And though Trask knew that she paid Blanco
$880 per week, she did not know how that amount was calculated.
Rather, Trask explained, it was simply the same amount that
Blanco had been making previously.
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22-13669 Opinion of the Court 39
Still, some undisputed facts exist about an eight-week period
in which the nannies were not affiliated with an LLC. At some
point, Toribio and her LLC, Nannies with Love, which ostensibly
employed the other nannies as well, parted ways with the Parents.
When that happened, the nannies ceased their affiliation with Nan-
nies with Love. And an eight-week period ensued in which no LLC
even possibly employed the nannies who continued to work for the
Parents, including Blanco and Gomez. During that period, Dr.
Finch acknowledges that she paid the nannies directly by personal
check.18 And over that interval, the only possible supervisors for
the nannies were the Parents themselves. That regime continued
until the Parents hired Trask and Trask formed Amazing Gracie.
Even then, though, the Parents entirely funded Amazing Gracie,
and the LLC neither had any other clients nor retained any profits.
In short, the Parents claim that all the nannies at first worked
exclusively for Nannies with Love until the remaining nannies sep-
arated from Nannies with Love and continued to work for the Par-
ents. Then, after an eight-week gap in which the Parents were re-
sponsible for supervising and paying the nannies, a new entity—
Amazing Gracie—emerged, hired both Blanco and Gomez, and be-
came their exclusive employer. At that point, according to the Par-
ents, Amazing Gracie assumed all oversight of the nanny operation
18 The Parents—who are both licensed attorneys—say that, around this time,
they researched the FLSA’s overtime requirements and determined that
Blanco was exempt under the live-in service exemption.
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40 Opinion of the Court 22-13669
and the Parents once again removed themselves and transferred
childcare responsibilities to an entity they “knew little about.”
As the Parents tell it, they did no independent vetting of the
nannies who entered their home to watch their children, gave no
directions as to the nannies’ duties and responsibilities, and paid lit-
tle to no attention to the nannies’ work in their home. And while
the Parents acknowledge that, for an eight-week period, they paid
the nannies directly, they maintain that this was the “lone excep-
tion” to their general practice of detachment from the nannies’
day-to-day care for their children.
No matter which version of the events may seem more plau-
sible, under the summary-judgment standard, it is not our role to
assess the credibility of the Parents’ assertions. Butler, 41 F.4th at
1334. If the Parents submit evidence that raises a genuine dispute
of material fact, then we must send the question to a jury to eval-
uate the parties’ credibility. See id. Here, the Parents have submit-
ted sworn testimony and declarations, under penalty of perjury, in-
dicating that they had minimal oversight over the nannies’ care for
their children. So we must conclude that a genuine dispute of ma-
terial fact exists about whether the Parents exercised control and
supervision over the nannies’ work in their house. And a jury must
decide whether the Parents were Blanco’s employer and are there-
fore responsible for paying her overtime compensation.19
19 Because a genuine dispute of material fact exists about whether the Parents
were Blanco’s employer, we need not and do not address the Department’s
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22-13669 Opinion of the Court 41
Before concluding, we briefly address the parties’ conten-
tions regarding damages. In the district court, the Parents argued
that Blanco is not entitled to liquidated damages under 29 U.S.C.
§ 216(b). They invoked the FLSA defense that applies if the em-
ployer “shows to the satisfaction of the court that the act or omis-
sion giving rise to such action was in good faith and that [the em-
ployer] had reasonable grounds for believing that his act or omis-
sion was not a violation of the [FLSA] . . . .” 29 U.S.C. § 260. If, on
remand, the district court ultimately considers whether the Parents
acted in good faith under § 260, it should evaluate the credibility of,
and if appropriate, account for the Parents’ representations to the
court that they effectively had no supervision or control over the
nannies’ care for their children.20
IV. Conclusion
For all these reasons, we conclude that Blanco did not “re-
side” in the Parents’ house and that she is entitled to overtime pay.
As a result, we must vacate the grant of summary judgment to the
Parents on that issue. But because a genuine dispute of material
fact remains as to who must pay that overtime—that is, whether
the Parents were Blanco’s “employer”—we affirm the district
argument that the Parents and the LLCs were Blanco’s joint employers. That
question also turns on a genuine dispute of material fact.
20 The cover page of Blanco’s brief indicates that she seeks to bring this action
on behalf of all employees similarly situated under 29 U.S.C. § 216(b). Because
no others are plaintiffs and Blanco has not developed this point in any of her
briefing, we do not consider or discuss it further.
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42 Opinion of the Court 22-13669
court’s denial of summary judgment in favor of Blanco on that
“employer” issue. We remand for further proceedings consistent
with this opinion.
REVERSED AND VACATED IN PART; AFFIRMED IN
PART; and REMANDED IN PART.
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22-13669 H ULL, J., Specially Concurring 1
H ULL, Circuit Judge, specially concurring in part:
I concur in the Court’s opinion in full, except for Section
III.A.2 concerning the Department of Labor’s (the “Department”)
“regulations” and materials discussed in that Section. In my view,
the statutory text of the Fair Labor Standards Act, discussed in
Section III.A.1, is unambiguous and dispositive of the issue on
appeal. I would not give any deference or persuasive value to the
preamble of the Department’s 2013 Final Rule or other materials
discussed in Section III.A.2.
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