A Department of Labor regulation (29 C.F.R. § 776.23(c)) purports to bring “within the scope” of the FLSA all employees engaged in construction work, including maintenance and repair work, that is “closely or intimately related” to a covered enterprise. In other words, “[i]f the construction project is subject to the [FLSA], all employees who participate in the integrated effort are covered….” The plaintiff in Josendis v. Wall to Wall Residence Repairs, Inc., claimed that this coverage was available to him, even if his construction employer was not covered under the FLSA, by virtue of remodeling work he did for his employer’s customer, a covered enterprise.
The Eleventh Circuit, rejecting this argument, refused to apply Chevron deference because it found that the FLSA’s text concerning enterprise coverage was clear and unambiguous – an employee must be employed “in an enterprise engaged in commerce or in the production of goods for commerce” in order to be entitled to FLSA overtime under an enterprise coverage theory. The court concluded that this text can only be construed to cover employees actually employed by the covered enterprise.©2013 Greenberg Traurig, LLP. All rights reserved.