United States District Court, W.D. Arkansas, Fort Smith Division
JANET CUMMINGS; EMILIA MARTINEZ; VICTOR PIERINI; and LAUREL RINGUIS, PLAINTIFFS
BOST, INC., d/b/a BOST, DEFENDANT
OPINION AND ORDER
HOLMES, III, CHIEF U.S. DISTRICT JUDGE
the Court are Defendant Bost, Inc.'s (“Bost”)
motion for summary judgment (Doc. 94), Plaintiffs Janet
Cummings, Emilia Martinez, Victor Pierini, and Laurel
Ringuis's response (Doc. 97), Bost's reply (Doc. 99),
and the parties' supporting documents. Also before the
Court is Plaintiffs' cross-motion for partial summary
judgment (Doc. 100), Bost's response (Doc. 103),
Plaintiffs' reply (Doc. 106), and the parties'
supporting documents as to that motion. Plaintiffs filed a
supplement to their motion (Doc. 109) to which Bost responded
(Doc. 110). For the following reasons, Bost's motion for
summary judgment (Doc. 94) will be GRANTED IN PART, and
Plaintiffs' motion for partial summary judgment (Doc.
100) will be DENIED.
a private, not-for-profit corporation that provides care to
disabled persons throughout Arkansas. Plaintiffs were
employed by Bost as caregivers for Bost clients who lived in
the Plaintiffs' homes. Plaintiffs' amended complaint
(Doc. 90) was brought under the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201, et. seq., and the
Arkansas Minimum Wage Act (“AMWA”), Ark. Code
Ann. § 11-4-201, et. seq., seeking a declaratory
judgment and damages for Bost's alleged failure to pay
Plaintiffs overtime compensation for the time in excess of
forty hours per week during which Plaintiffs cared for Bost
clients in Plaintiffs' homes.
motion for summary judgment contends that no overtime
compensation was owed because Plaintiffs were exempt
employees under the companionship services exemption to the
FLSA and a similar exemption under the AMWA. In their
cross-motion, Plaintiffs seek partial summary judgment on the
issue of whether the companionship services exemption
determining whether summary judgment is appropriate, the
burden is on the moving party to establish both the absence
of a genuine dispute of material fact and that it is entitled
to judgment as a matter of law. See Fed. R. Civ. P.
56; Nat'l Bank of Commerce of El Dorado, Ark. v. Dow
Chem. Co., 165 F.3d 602 (8th Cir. 1999). The same
standard applies where, as here, the parties file
cross-motions for summary judgment on an issue. Each motion
should be reviewed in its own right, with each side,
respectively, “entitled to the benefit of all
inferences favorable to them which might reasonably be drawn
from the record.” Wermager v. Cormorant Twp.
Bd., 716 F.2d 1211, 1214 (8th Cir. 1983); see also
Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th
Cir. 1998). In order for there to be a genuine issue of
material fact, the evidence must be “such that a
reasonable jury could return a verdict for the nonmoving
party.” Allison v. Flexway Trucking, Inc., 28
F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). Once the movant
has met its burden, the nonmovant must present specific facts
showing a genuine issue of material fact for trial.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). To show a genuine issue of material
fact, the nonmovant must produce evidence “such that a
reasonable jury could return a verdict for the
[nonmovant].” Allison, 28 F.3d at 66-67
(quoting Anderson, 477 U.S. at 248).
The Companionship Services Exemption
FLSA requires payment of overtime compensation of at least
time and a half for time worked over forty hours per week. 29
U.S.C. § 207. However, the FLSA contains a companionship
services exemption from overtime pay for “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 (as such terms
are defined and delimited by regulations of the Secretary [of
Labor]).” 29 U.S.C. § 213(a)(15). Plaintiffs have
been employed by Bost for various periods spanning from at
least 2000 to the present. The regulations defining
“companionship services” were substantially
amended in 2015. The parties' cross-motions consider only
the regulations that were in place before 2015.
service employment” is defined as “services of a
household nature performed by an employee in or about a
private home (permanent or temporary).” 29 C.F.R.
§ 552.3 (2015).In Fezard v. United Cerebral Palsy of
Central Arkansas, 809 F.3d 1006, 1010 (8th Cir. 2016),
the Eighth Circuit held that where an employee provided care
to clients in the employee's residence, and the nonprofit
services-provider employer did not own or exert control over
the home, it qualified as a “private home” such
that the employees were engaged in domestic service
employment. Based on this ruling, “for summary judgment
purposes Plaintiffs do not dispute that they worked in their
clients' private homes as ‘domestic service'
employees.” (Doc. 97, pp. 3-4).
decisive issue in the present motions is whether the
“companionship services” prong of the exemption
applies. The pre-2015 regulations defined
“companionship services” in relevant part as:
those services which provide fellowship, care, and protection
for a person who, because of advanced age or physical or
mental infirmity, cannot care for his or her own needs. Such
services may include household work related to the care of
the aged or infirm person such as meal preparation, bed
making, washing of clothes, and other similar services. They
may also include the performance of general household work:
Provided, however, that such work is incidental, i.e., does
not exceed 20 percent of the total weekly hours worked.
29 C.F.R. § 552.6 (1975). Bost argues that under this
definition of “companionship services, ”
Plaintiffs were exempt employees because they provided
attention and care to disabled clients. Plaintiffs agree that
they provided attention and care to the clients, but argue
that Bost cannot show that Plaintiffs ...