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Picu v. Bot

United States District Court, W.D. Washington, Seattle

June 2, 2014

MARIANA BOT, individually and as a member of a marital community; DOREL BOT, individually and as a member of a marital community, and DUVALL ADULT FAMILY HOME, Defendants.


ROBERT S. LASNIK, District Judge.

This matter comes before the Court on "Defendants' Partial Motion to Dismiss Plaintiffs' Complaint." Dkt. # 5. Plaintiffs assert multiple claims for defendants' failure to pay plaintiffs' full wages. Defendants seek dismissal of four of plaintiffs' claims: (1) minimum and overtime wages under the Fair Labor Standards Act ("FLSA"), (2) double damages under RCW 49.52.050 and RCW 49.52.070, (3) fraud and/or negligent misrepresentation; and (4) a claim under the Washington Consumer Protection Act. In the context of a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the allegations of the complaint are accepted as true and construed in the light most favorable to plaintiff. In re Syntex Corp. Sec. Litig. , 95 F.3d 922, 925-26 (9th Cir. 1996); LSO, Ltd. v. Stroh , 205 F.3d 1146, 1150 n.2 (9th Cir. 2000). The question for the Court is whether the well-pled facts in the complaint sufficiently state a "plausible" ground for relief. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Although a complaint need not provide detailed factual allegations, it must offer "more than labels and conclusions" and contain more than a "formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555. If the complaint fails to state a cognizable legal theory or fails to provide sufficient facts to support a claim, dismissal is appropriate. Robertson v. Dean Witter Reynolds, Inc. , 749 F.2d 530, 534 (9th Cir. 1984).

Having reviewed the parties' memoranda, the Court finds as follows:


Plaintiffs assert various claims regarding defendants' alleged failure to pay proper wages while plaintiffs were employed at Duvall Adult Family Home ("DAFH"). Plaintiffs, a married couple, served as live-in attendants and provided care to DAFH's elderly and disabled residents. Plaintiffs allege that defendants agreed to pay each plaintiff $3, 000.00 per month plus room and board pursuant to an oral contract. They allege that defendants failed to provide Mrs. Picu with any compensation at all and failed to pay Mr. Picu overtime wages during their periods of employment with defendants. In addition, plaintiffs assert that defendants made material and false representations and supplied false information about the terms of plaintiffs' employment. Finally, Mrs. Picu alleges that defendants' failure to pay her wages was "an unfair or deceptive act or practice in trade or commerce" that injured her.


1. Fair Labor Standards Act

Defendants argue that plaintiffs do not state a claim for minimum wages and overtime wages under the FLSA because two exemptions apply: the companionship exemption, 29 U.S.C. § 213(a)(15), and the domestic service employee exemption, 29 U.S.C. § 213(b)(21). See Motion to Dismiss (Dkt. # 5) at 4.

The Companionship Exemption

The companionship exemption relieves employers of their duty to pay federally required minimum and overtime wages to "any... employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmary) are unable to care for themselves...." 29 U.S.C.§ 213(a)(15). "The term domestic service employment' refers to services of a household nature performed by an employee in or about a private home."[1] 29 C.F.R.§ 552.3. Plaintiffs assert the exemption does not apply because the adult family home where plaintiffs provided services is not a "private home." Response (Dkt. #6) at 5.

Defendants rely on Park v. Choe to argue that adult family homes in Washington are "private homes" for the purposes of the companionship exemption. C06-5456RJB, 2007 WL 2677135 (W.D. Wash. Sept. 10, 2007). This case dismissed a wage claim under the FLSA on summary judgment, finding the companionship exemption applied to two caregivers who worked at a licensed adult family home. Id. at 6. However, the court did not hold that all adult family homes in Washington are private homes; rather, it found that the particular "home in question here" had distinctive characteristics that made it "private" for the purposes of the exemption. Id . (discussing the ownership of the home, the permanency of residents, and whether the home was open to the public).

In determining what constitutes a "private home" under the companionship exemption, other courts and the Department of Labor apply a multi-factor test stemming from the Tenth Circuit's decision in Welding v. Bios Corp. , 353 F.3d 1214 (10th Cir. 2004). The Welding factors consider whether a home is "private" for the companionship exemption based on: (1) whether the client lived in the living unit before receiving the services; (2) who owns the living unit; (3) who manages and maintains the residence; (4) whether the client could live there without contracting for the provider's services; (5) whether the cost/value of the living unit is a large portion of maintaining it; and (6) whether the provider uses part of the residence for its own business purposes. Id. at 1219. The inquiry depends on the facts and circumstances of each living unit; "no single factor is dispositive." Id. at 1218-19. Although Park did not consider these factors and the Ninth Circuit has not determined the proper test, many courts outside the Tenth Circuit define "private home" by analyzing the Welding factors. See Thompson v. Blesssed Home Inc., 5:13-CV-71-BO, 2014 WL 2085310 (E.D. N.C. May 19, 2014); Murray v. Mary Glynn Homes, Inc., 1:11 CV 00532, 2013 WL 4054595 (N.D. Ohio Aug. 12, 2013); Lochiano v. Compasionate Care, LLC, 10-01089-CV-W-DGK, 2012 WL 4059873 (W.D. Mo. Sept. 14, 2012); Threatt v. CRF First Choice, Inc., 1:05CV117, 2006 WL 2054372 (N.D. Ind. July 21, 2006); see also Chapman v. A.S.U.I. Healthcare and Development Center, No. 13-20081, 2014 WL 351868 (5th Cir. Feb. 3, 2014) (finding the home was not a "private home" under the companionship exemption; cites to Welding but does not specifically apply all six factors). In addition, the Department of Labor has recently endorsed this approach along with other factors. Application of the Fair Labor Standards Act to Domestic Service, 78 Fed. Reg. 60454, 60462 (Oct. 1, 2013) ("In evaluating whether a residence is a private home, the Department considers the six factors identified by the Tenth Circuit in Welding as well as other factors identified in Johnston, Linn and Lott" (citation omitted)).

Plaintiffs have pleaded sufficient facts to avoid dismissal based on the companionship exemption. In their complaint, plaintiffs allege that DAFH is an "adult family home' as defined by WAC 388-76-10000."[2] When viewed in the light most favorable to the plaintiffs, the key statutory and administrative language defining adult family homes in Washington and the allegations in plaintiffs' complaint are sufficient to raise a plausible inference that the adult family home where plaintiffs worked is not a "private home" for purposes of the companionship exemption.[3]

First, there is no indication that a client of DAFH "lived in the living unit as his or her private home before beginning to receive the services, " which would be a "powerful indicator that the residence is a private home." Welding , 353 F.3d at 1219. However, there is also no information to indicate the clients did not live at DAFH before receiving services. Plaintiffs claim it is reasonable to infer that the clients did not live at DAFH based on the statutory definition and regulations of adult family homes, which limit the residents of such homes to those in need of services, their close relatives, and service providers or their representatives. See Response (Dkt. # 6) at 8. However, the Court finds ...

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