The opinion of the court was delivered by: P. KEVIN CASTEL, District Judge
Plaintiff Pushpa Topo brought this action against defendants Ashwin
and Nisha Dhir alleging violations of federal and state minimum wage and
overtime laws.*fn1 Plaintiff alleges that for approximately two and a
half years, she was employed by defendants as their live-in domestic
worker, caring for their baby and cleaning their home for 119 to 133
hours per week, with virtually no days off. Plaintiff alleges that, in
return, defendants paid her at the rate of approximately $0.22 per hour
for the first eight months of employment, and a total of approximately
$50.00 for the remaining seventeen months of work. Plaintiff asserts
claims under, among other statutes and common law principles, the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the
Alien Tort Claims Act, and New York Labor Law §§ 190 et
seq., as well as for conversion, claiming unjust enrichment and
quantum meruit under New York and New Jersey law.
On April 18, 2003, Ms. Tope filed a motion for partial summary judgment
contending that on there is no genuine dispute (1) as to, the existence
of an employee/employer relationship under FLSA or New York Labor Law;
and (2) that defendants are liable in quantum meruit and for unjust
enrichment under New York and New Jersey law. The Dhirs moved for partial
summary judgment on the issue of plaintiff's claims under the Alien Tort
Claims Act and New York conversion law. The Dhirs also argued that Ms.
Topo's FLSA claims were time-barred by the statute of limitations, and
moved to amend their answer to include the affirmative defense of the
Statute of Frauds. On December 3, 2003, Magistrate Judge Ellis issued a
Report and Recommendation granting the Dhirs' motion to amend their
answer to permit them to assert the Statute of Frauds defense, and
denying the parties' motions for partial summary judgment in their
On December 22, 2003, plaintiff submitted Objections to that portion of
the Report and Recommendation that denied her motion for partial summary
judgment on three issues: (1) plaintiff's status as an "employee" and
defendants' status as "employers" under FLSA; (2) the parties' same
relationships under New York Labor Law; and (3) defendants' liability
under the common law theory of quantum meruit. Neither party filed any
objection-to those portions of Magistrate Judge Ellis's Report and
Recommendation denying defendants' motion for partial summary judgment,
or that portion of the Report and Recommendation denying plaintiff's
motion for partial summary judgment as to defendants' liability on her
unjust enrichment claim. Under Rule 72(b), Fed.R. Civ. P., I review
those portions of Magistrate Judge Ellis's Report and Recommendation to
which objection has been made de novo. As set forth below, I
adopt the Report and Recommendation in all but one respect: I grant
plaintiff's motion for summary judgment on the issue of plaintiff's
status as an employee under FLSA and the New York Labor Law.
The Parties' Employment Status
Plaintiff moved for summary judgment to establish that she was an
employee, and defendants her employers, under FLSA and New York Labor
Law. Defendants opposed her motion on two grounds, neither of which
addresses the issue of status as employee and employer. First, with
respect to the status under FLSA, defendants claim that defendants are
exempt from complying with both FLSA's minimum wage and maximum hour
requirements on the ground that FLSA exempts workers involved in domestic
service from both provisions. (I note that plaintiff does not appear to
be claiming that the maximum hour requirements of FLSA apply; I also note
that defendants are incorrect that the domestic service exemption cited
in their papers applies to FLSA's minimum wage provisions: the
"domestic service" exemption of Section 213(b)(21) is an exemption only
from the maximum hour provisions of FLSA.) Second, with respect to the
status under New York Labor Law, defendants claim they are exempt because
that statute's definition of "employee" exempts part-time babysitters.
See New York Labor Law § 651.
Although defendants did not claim an exemption under FLSA's equivalent
"casual babysitter" exemption, the Magistrate Judge found that there was
a genuine issue of material fact as to whether plaintiff's services came
within the "part-time" or "casual" babysitter exemption of either FLSA or
New York Labor Law. The Magistrate Judge
therefore did not address the issue of whether plaintiff was an
employee and defendants were employers under either statute.
Both FLSA and New York Labor Law define "employee" and "employer"
broadly. See Ansoumana v. Gristedes Operating Corp.,
255 F. Supp.2d 184 (S.D.N.Y. 2003); Settlement Home Care, Inc., v.
Industrial Board of Appeals of Department of Labor, 151 A.D.2d 580,
581, 542 N.Y.S.2d 346, 347-48 (2d Dep't 1989). Thus, FLSA defines
"employee," with certain exceptions, as "any individual employed by an
employer." 29 U.S.C. § 203(e)(1). "Employ" is defined as "to suffer
or permit to work." Id. at § 203(g). New York Labor Law
defines "employee" as "including any individual employed or permitted to
work by an employer in any occupation," § 651(5), although it
excludes from its definition, as set forth below, "part-time
In their Answer to plaintiff's Second Amended Complaint, defendants
"admit that defendants employed plaintiff as their live-in domestic
worker and that plaintiff provided child-care services to their
daughter." (Answer to the Preliminary Statement in the Second Amended
Complaint) Defendants also admit that "Plaintiff Pushpa Topo was an
employee of the defendants at their apartment in New York, New York and
at their apartment in Secaucus, New Jersey." (Answer to the Second
Amended Complaint at ¶ 3) These formal judicial admissions by
defendants resolve the issue of whether plaintiff is an employee, and
defendants her employers under both FLSA and the New York Labor Law.
Notwithstanding defendant's concession that plaintiff was their live-in
domestic employee, the Report and Recommendation recommends denial of
summary judgement on the issue of the parties' employment relationship on
the ground that there
are issues as to whether plaintiff falls within, exemptions to both
FLSA and the New York Labor Law that essentially exempt part-time or
casual babysitters from those statutes minimum wage provisions.
Defendants, however, have never asserted that the FLSA exemption applies
not in their Answer, not in their motion to amend their Answer,
and not even in opposition to plaintiff's motion for partial summary
judgment. Defendants did not assert the application of the New York Labor
Law carve-out or exemption in their Answer or in their motion to amend
their Answer, but raised it for the first time only in their opposition
to partial summary judgment. As a result, defendants may not now assert
as a defense plaintiff's supposed status as merely a "casual" or
"part-time" babysitter. See Wright v. Aargo Security Systems.
Inc., 99 Civ. 9115, 2001 WL 91705, at *2 (S.D.N.Y. Feb. 2, 2001).
Some affirmative defenses arise only after a plaintiffs deposition is
taken or other discovery of plaintiff proceeds. For example, defendants'
efforts to amend their Answer to raise the Statute of Frauds defense,
which fairly may be said to have crystallized for the first time as a
result of the plaintiff's deposition. In contrast, the FLSA and labor law
exemptions were uniquely within the knowledge of the defendants from the
outset of this litigation in December 2001 and it is now too late for
them to assert the exemption. Plaintiff's deposition was taken in
November of 2002 well over a year ago and defendants have
waited too long to seek an amendment of the Answer. I conclude that the
defendants have waived the defense.
Even if the defendants had not waived the defense, I find that the
defendants have failed to create a genuine issue of material fact with
respect to the application of the exemptions. I conclude this even though
I read the submissions and the
record with every inference in defendants' favor. Both the state
and federal minimum wage statutes are construed narrowly so as to permit
as many individuals as possible to take advantage of their benefits, and
exceptions to the statutes are to be construed narrowly. See, e.g.,
Zheng v. Liberty Apparel Co., 355 F.3d 61 (2d Cir. 2003);
Bilvou v. Dutchess Beer Distributors Inc., 300 F.3d 217, 222
(2nd Cir 2002), and the cases cited therein.
FLSA's "casual" babysitter exemption, according to the implementing
regulations, is meant to apply to teenagers or others who have other
sources of income and "are usually not dependent upon the income from
rendering such services for their livelihood." 29 C.F.R. § 552.104.
The regulations further define "casual" (when applied to babysitting) as
"employment which is irregular or intermittent" 29 C.F.R. § 552.5.
Although state regulations and legislative history do not elucidate the
New York statute's use of "part-time babysitter," I do not find any
support for the proposition that the New York exemption is to be
construed more broadly than the federal exemption. There is general
support for giving FLSA and the New York Labor Law consistent
interpretations. See. e.g., Ansoumana, 255 F. Supp.2d at 189
("Because New York Labor Law and the FLSA embody similar standards with
respect to the legal issues before me, I will consider the federal law in
deciding [the issue].") and cases cited therein.
In this case, the undisputed facts establish that plaintiff's
employment by defendant was more than "irregular or intermittent." It is
undisputed that plaintiff was, by defendants' own description and
admission, defendants' "live-in domestic worker." Plaintiff testified as
to her regular and extensive hours worked for the defendants. She
testified that she worked from 6:30 a.m. to 11:30 p.m., essentially seven
days a week.
(See Deposition Transcript of Pushpa Topo at 124, 125.)
Defendants have failed to come forward with evidence to rebut Ms, Topo's
deposition testimony, which establishes that her services were regular
and not intermittent. Defendants' version of their relationship with
plaintiff is not inconsistent. Defendants acknowledge that they paid
plaintiff $150 per week starting in approximately May 1997, and gave her
a raise to $200 per week starting in September 1998, when Ms. Dhir
started full-time employment. (See Deposition Transcript of
Nisha Dhir at 36 and 38; Deposition Transcript of Ashwin Dhir at 48.)
Although the exact number of hours that plaintiff worked for defendants
may be in dispute, it is not disputed that she was a live-in domestic
worker, and that at least during the period when defendant Ashwin Dhir
was traveling in India, plaintiff worked approximately 10 hours a day
caring for defendants' daughter.
I find that these undisputed facts are sufficient to rule as a matter
of law that the services provided by plaintiff to defendants were neither
irregular nor intermittent, and that neither the FLSA nor the state
exemption for "casual" or "part-time" babysitters applies. Defendants'
bald assertions in opposition to plaintiff's motion, unsupported by any
citation to the factual record, affidavits, or other evidence in this
case, and in ...