The Second Circuit to SCOTUS: Up Yours!

I'm not exactly sure how I missed this, but the Second Circuit has reconsidered its original ruling in Coke v. Long Island Care at Home and affirmed its holding, notwithstanding the Supreme Court's summary and unanimous directive to reconsider it.  I'm delighted.  Full disclosure: I worked on the case when I was clerking and was very disappointed about the Supreme Court's vacatur. 

As you may recall, the Second Circuit had held that home health care attendants who are employed through third party agencies cannot be denied minimum wage and overtime under the FLSA.  The defendants and Department of Labor (DOL) had argued that these workers qualified for the "companionship services" exemption, as the DOL had defined the term through a set of interpretive regulations.  In a careful reading of Mead, the Second Circuit refused to give the agency's construction Chevron deference -- and held the regulation unenforceable because it failed Skidmore deference. 

In a last ditch effort to help the home health care industry avoid paying minimum wage, the DOL wrote up a memo a year and four months after the Second Circuit's ruling and submitted it to the Supreme Court to prove that they had carefully considered the regulation; they further sought to show that the DOL had always considered the "third-party employer" exemption legislative rather than interpretive (which would entitle it to Chevron deference).  The Supreme Court vacated the Second Circuit ruling to give the lower court a chance to consider the memo, notwithstanding the fact that the DOL had every opportunity to make the arguments in the memo at that court (though didn't -- they apparently didn't really think it was plausible that they'd lose, I suppose).

The Second Circuit dutifully reconsidered its opinion.  But rather than take the hint from the Supreme Court, it stood its ground.  Fun, fun!  Here's the latest opinion from the Second Circuit: Download 037666_remand_opn.pdf.  I'm sure the saga will continue.