FLSA2019-1 — Wage and recordkeeping requirements for residential janitors and "good faith" defense

U.S. Department of Labor Wage and Hour Division
Washington, DC 20210

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FLSA2019-1
March 14, 2019
Dear Name*:
This letter responds to your request for an opinion concerning: (1) whether the Fair Labor
Standards Act (FLSA) guarantees minimum wage and overtime pay to residential janitors despite
their exemption from similar state law requirements; (2) whether an employer’s noncompliance
with the FLSA in reliance on this state law exemption demonstrates “good faith,” allowing the
employer to avoid liquidated damages or the FLSA’s three-year back wage liability period; and
(3) how an employer may track and record a residential janitor’s hours worked. This opinion is
based exclusively on the facts you have presented. You represent that you do not seek this opinion
for any party that the Wage and Hour Division (WHD) is currently investigating or for use in any
litigation that commenced prior to your request.
BACKGROUND
Your clients are real estate managing entities and landlords in the state of New York. You
represent that several of your clients employ a live-in superintendent or “residential janitor” to
handle building care and maintenance in certain multi-unit residential buildings. You state that
New York law expressly excludes these residential janitors from state minimum wage and
overtime requirements. You recognize that the FLSA does not have a similar exemption.
GENERAL LEGAL PRINCIPLES
When a federal, state, or local minimum wage or overtime law differs from the FLSA, the
employer must comply with both laws and meet the standard of whichever law gives the employee
the greatest protection. See 29 U.S.C. § 218(a); 29 C.F.R. § 778.5 (“Compliance with other
applicable legislation does not excuse noncompliance with the Fair Labor Standards Act.”).
The Portal-to-Portal Act generally establishes a two-year statute of limitations for an FLSA
minimum wage, overtime, or liquidated damages claim, and a three-year limitation for an FLSA
claim involving a willful violation. See 29 U.S.C. § 255(a). A willful violation occurs “where
the employer knew that its conduct was prohibited by the Act or showed reckless disregard for the
requirements” of the FLSA, including situations where “the employer should have inquired further
into whether its conduct was in compliance with the Act, and failed to make adequate further
inquiry.” 29 C.F.R. § 578.3(c). If an employer shows that it acted in “good faith,” having had
“reasonable grounds for believing that his act or omission was not a violation” of the FLSA, a
court may, in its discretion, deny liquidated damages. 29 U.S.C. § 260.
“An employee who resides on his employer’s premises on a permanent basis or for extended
periods of time is not considered as working all the time he is on the premises.” 29 C.F.R.
§ 785.23. The employee’s “normal private pursuits” on the premises, such as “eating, sleeping,

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entertaining, and other periods of complete freedom from all duties when he may leave the
premises for purposes of his own,” are not hours worked. Id.
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Because it is difficult to determine
when the employee is actually working, the parties may establish a “reasonable agreement” that
determines which hours on the premises are hours worked. Id.
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This agreement must “take[ ] into
consideration all of the pertinent facts.” 29 C.F.R. § 785.23. Once this agreement is in effect,
“precise recordkeeping” of the employee’s hours worked is not required. FOH 31b18. The
employer’s time records will be sufficient so long as they “generally coincide[ ] with the
agreement.” Id. If the parties find that the recorded hours significantly deviate from the initial
agreement, they should establish a new agreement reflecting the actual facts. Id.
OPINION
Based on the facts you have provided, your clients’ residential janitors are not exempt from the
FLSA’s minimum wage and overtime requirements, because the FLSA does not include an
exemption for residential janitors or similar employees. See 29 U.S.C. §§ 206, 207; see also
29 C.F.R. § 541.3 (“[N]on-management employees in maintenance ... such as carpenters,
electricians, mechanics, [and] plumbers ... are not exempt ....”). This is true notwithstanding New
York state law which expressly exempts your clients’ residential janitors from state minimum
wage and overtime requirements. Compliance with state law does not excuse noncompliance with
the FLSA. See 29 U.S.C. § 218(a); 29 C.F.R. § 778.5.
Moreover, WHD does not believe that relying on a state law exemption from state law minimum
wage and overtime requirements is a good faith defense to noncompliance with the FLSA, but a
court retains discretion to make that determination on a case-by-case basis. See 29 U.S.C. § 260.
Since the residential janitors you describe in your letter reside in multiunit buildings managed or
owned by your clients, your clients may reach a reasonable agreement with the janitors to establish
which hours they are and are not working. See 29 C.F.R. § 785.23. Your client’s time records
need not be precise, but they should “generally coincide[ ] with the agreement.” See FOH 31b18.
We trust that this letter is responsive to your inquiry.
Sincerely,

Keith E. Sonderling
Acting Administrator

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Whether an employee is free to use time for personal pursuits will depend on the facts of each case,
notwithstanding the provisions of any written agreement. Field Operations Handbook (FOH) 31b18.
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A “reasonable agreement” is, of course, a contract between the employer and employee, not a “unilateral
decision by the employer.” FOH 31b18. While WHD does not require the employer and employee to
reduce this agreement to writing, WHD encourages them to do so in order to avoid any misunderstandings.
Id.

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*Note: The actual name(s) was removed to protect privacy in accordance with 5 U.S.C.
§ 552(b)(7).