Same Sex Couples, The Hair of the Dog and the FLSA

Although the Fourth Circuit Court of Appeals is often viewed as conservative I really don't think it was making a moral judgment when it wrote:

When relationships have deviated from the traditional understanding of employment in fundamental ways, the Supreme Court has refused to shoehorn them into the Act. (my emphasis)

even though it was discussing a same sex relationship gone sour.

I am sure Michelle Hirsch and Tammy Steelman foresaw only a mutually harmonious relationship when they not only joined households but Steelman quit her job to join Hirsch's already established dog grooming business, The Hair of the Dog. Unfortunately instead of bliss, when problems overtook the relationship, litigation soon followed.

Since traditional family law remedies were not available, Steelman's lawyer creatively argued (along with state law causes of action) that Hirsch had not been adequately compensated for her services as an employee as required by the Fair Labor Standards Act.

Although one wonders if the Court could not have used the same rationale that the 5th Circuit did last week in tossing an FLSA case because the plaintiff did not show that his occupation was engaged in commerce, see Sobrinio v. Medical Center's Visitor's Lodge, Inc. (5th Cir. 1/4/07) [pdf], the 4th Circuit instead focused on the domestic arrangements of the couple and whether or not Steelman's situation was what the drafters of the FLSA intended when it defined "employee".

Bottom line the Court concluded it wasn't:

Taking the evidence in this case in the light most favorable to her, the plaintiff cannot be adjudged an "employee" for purposes of the FLSA under these precedents, or under any analysis based in "economic reality." The intended lifetime partnership she described was not "the bargained-for exchange of labor for mutual economic gain that occurs in a true employer-employee relationship." Harker, 990 F.2d at 133 (internal quotations omitted). According to the plaintiff, the couple saw their work together as a way to improve an economic future that they intended to share in perpetuity, rather than as a transfer of one individual’s assets to another in exchange for labor. The plaintiff did not obtain a bargained-for portion of her supposed employer’s assets — she took from those assets for her own purposes with a discretion that is fundamentally alien to employer-employee relationships.

Although noting that possible state court rememdies existed for Steelman, the Court dismissed her FLSA claim. Besides proving again that employment law has the greatest stories, Steelman v. Hirsch (4th Cir. 1/10/07) [pdf] is yet another reminder of the perils of mixing romantic relationships and work.