IN THE SUPREME COURT OF WEST VIRGINIA
 

September 2014 Term 

FILED 

November 7, 2014 

released at 3:00 p.m. 

No. 13-1255 RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

CAROL KING,
 

on behalf of herself and all others similarly situated,
 

Plaintiff Below, Petitioner
 

v. 

WEST VIRGINIA’S CHOICE, INC.,
 

Defendant Below, Respondent
 

Appeal from the Circuit Court of Kanawha County
 

Honorable James C. Stucky, Judge
 

Civil Action No. 12-C-1796
 

AFFIRMED
 

Submitted: October 14, 2014
 

Filed: November 7, 2014
 

Cameron S. McKinney, Esq. Patrick E. McFarland, Esq. 

The Grubb Law Group Patrick E. McFarland, P.L.L.C. 

Charleston, West Virginia Parkersburg, West Virginia 

Attorney for Petitioner 

David K. Hendrickson, Esq. 

Barbara A. Samples, Esq. 

Christopher S. Arnold, Esq. 

Hendrickson & Long, PLLC 

Charleston, West Virginia 

Attorneys for Respondent 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. 

Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). 

2. “Where the language of a statute is clear and without ambiguity the plain 

meaning is to be accepted without resorting to the rules of interpretation.” Syl. Pt. 2, State 

v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LOUGHRY, Justice: 

The petitioner (plaintiff below), Carol King (“Ms. King”), appeals from the 

October 31, 2013, final order of the Circuit Court of Kanawha County. Through this order, 

the circuit court granted summary judgment in favor of the respondent (defendant below), 

West Virginia’s Choice, Inc. (“WV Choice”), and dismissed the action with prejudice. Ms. 

King asserts that the circuit court erred in its legal conclusion that she is not entitled to 

overtime compensation under the state’s Minimum Wage and Maximum Hours Standards1 

(“MWMHS”) because she is subject to the federal Fair Labor Standards Act (“FLSA”).2 

Upon our consideration of the appendix record, the briefs and arguments of the parties, the 

applicable legal authority, and for the reasons discussed below, we affirm the circuit court’s 

final order. 

I. Factual and Procedural Background 

The material facts of this case are undisputed. WV Choice is a West Virginia 

corporation that provides in-home companionship services to persons who are unable to care 

for themselves due to either age or infirmity. These services are provided following a 

medical assessment by a physician and pursuant to a plan of care prepared by a trained nurse. 

1

W.Va. Code §§ 21-5C-1 to -11 (2013, 2014, & Spec. Supp. 2014).
 

2

29 U.S.C. §§ 201 - 219 (1998 & Supp. 2014).
 

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At any given time, WV Choice has as many as 2000 employees, all of whom are referred to 

as in-home direct care workers. To the extent its employees perform incidental household 

work, which rarely occurs, such work does not exceed twenty percent of the work performed 

in any given week by any direct care worker, including Ms. King. The employees of WV 

Choice do not provide trained nursing services or any services that would be the equivalent 

of trained nursing services. 

On January 14, 2011, Ms. King was hired by WV Choice as an in-home direct 

care worker to provide companionship services to the elderly or infirm. These services 

include meal preparation, bed-making, prompting clients to take medications, washing 

clothing, and assisting clients with personal care, such as dressing and personal grooming. 

WV Choice states that these services are typical of the in-home companionship care services 

provided by Ms. King and its other direct care worker employees. 

On September 5, 2012, Ms. King filed a class action complaint against WV 

Choice in the circuit court seeking declaratory and injunctive relief, as well as damages for 

unpaid “overtime” compensation for herself and all other similarly situated employees.3 Ms. 

King alleged that WV Choice violated the MWMHS by failing to pay her for hours worked 

3

Also named as a defendant below was Mulberry Street Management Services, Inc. 

All claims against Mulberry were dismissed with prejudice, and it does not participate in this 

appeal. 

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in excess of forty hours per week at a rate of one and one-half times her regular rate, as 

provided in West Virginia Code § 21-5C-3 (2013).4 Because the damages claim of Ms. King 

was entirely dependent upon whether WV Choice is an “employer,” as defined by the 

MWMHS, the circuit court directed the parties to file briefs and dispositive motions on this 

issue.5 

On or about August 14, 2013, WV Choice filed its motion for summary 

judgment, and the parties submitted their respective memoranda of law. On August 28, 

2013, the circuit court held a hearing on the motion and, by order entered October 31, 2013, 

the circuit court granted summary judgment in favor of WV Choice. 

In its summary judgment order, the circuit court found that MWMHS only 

applies to “employees” and “employers” as defined under the MWMHS in West Virginia 

Code § 21-5C-1 (2013). At the time this action was instituted, the statutory definition of 

“employer” included the proviso that “the term ‘employer’ shall not include any . . . 

4

West Virginia Code § 21-5C-3(a) provides, in part, that 

no employer shall employ any of his employees for a workweek 

longer than forty hours, unless such employee receives 

compensation for his employment in excess of the hours above 

specified at a rate of not less than one and one-half times the 

regular rate at which he is employed. 

5

The circuit court deferred ruling on Ms. King’s motion for class certification. 

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corporation . . . if eighty percent of the persons employed by him are subject to any federal 

act relating to minimum wage, maximum hours and overtime compensation.” W.Va. Code 

§ 21-5C-1(e).6 Applying this statutory provision as written, the circuit court concluded that 

the question of whether WV Choice meets the definition of “employer” under the MWMHS 

is dependent upon whether eighty percent or more of its employees are “subject to” a federal 

act, not whether they are “entitled to” overtime wages under a federal act. 

In addressing the question posed, the circuit court found that the undisputed 

evidence established that more than eighty percent of WV Choice’s employees, including 

Ms. King, are subject to the FLSA, a federal act which relates to minimum wage, maximum 

6

During 2014, the statutory definition of “employer” was amended during both the 

regular and second extraordinary sessions of the Legislature. The statute in effect at the time 

this action was filed reads, as follows: 

“Employer” includes the State of West Virginia, its agencies, 

departments and all its political subdivisions, any individual, 

partnership, association, public or private corporation, or any 

person or group of persons acting directly or indirectly in the 

interest of any employer in relation to an employee; and who 

employs during any calendar week six or more employees as 

herein defined in any one separate, distinct and permanent 

location or business establishment: Provided, That the term 

“employer” shall not include any individual, partnership, 

association, corporation, person or group of persons or similar 

unit if eighty percent of the persons employed by him are subject 

to any federal act relating to minimum wage, maximum hours 

and overtime compensation. 

W.Va. Code § 21-5C-1(e) (1999) (emphasis added). 

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hours, and overtime compensation. The circuit court further found the FLSA also applies to 

WV Choice as an enterprise engaged in commerce. Concluding that WV Choice does not 

meet the statutorydefinition of “employer” under the MWMHS and, therefore, the MWMHS 

did not apply, the circuit court dismissed, with prejudice, Ms. King’s overtime compensation 

claim filed under the MWMHS. It is from this final order that Ms. King appeals. 

II. Standard of Review 

Our review of the circuit court’s summary judgment ruling is plenary. See Syl. 

Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court’s entry of 

summary judgment is reviewed de novo.”). Against this standard, we will consider the 

parties’ arguments. 

III. Discussion 

A. “Employer” for purposes of the MWMHS 

Through this appeal, we are called upon to apply the definition of “employer,” 

as set forth in West Virginia Code § 21-5C-1(e),7 to the undisputed facts of this case. The 

parties acknowledged during oral argument that our resolution of this matter hinges on what 

is meant by the undefined phrase “subject to” in the proviso found in West Virginia Code § 

21-5C-1(e). This exclusionary proviso states that “the term ‘employer’ shall not include any 

7

See supra note 6. 

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. . . corporation . . . if eighty percent of the persons employed by him are subject to any 

federal act relating to minimum wage, maximum hours and overtime compensation.” W.Va. 

Code § 21-5C-1(e). Ms. King contends that the words “subject to” mean “entitled to,” 

whereas WV Choice asserts that this phase means “governed by or affected by.” 

As we have previously explained, “[w]here the language of a statute is clear 

and without ambiguity the plain meaning is to be accepted without resorting to the rules of 

interpretation.” Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968); see also 

Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970) (“Where the language 

of a statute is free from ambiguity, its plain meaning is to be accepted and applied without 

resort to interpretation.”); Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) 

(“A statutory provision which is clear and unambiguous and plainly expresses the legislative 

intent will not be interpreted by the courts but will be given full force and effect.”). 

Recognizing that a court’s duty is not to construe but to apply an unambiguous 

statute, we afford “[u]ndefined words and terms used in a legislative enactment . . . their 

common, ordinary and accepted meaning.” Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin, 

175 W.Va. 525, 336 S.E.2d 171 (1984). While Ms. King argues that “subject to” is 

synonymous with “entitled to,” we find that these phrases have very different meanings and 

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import. The phrase “subject to” is defined as “under authority of”8 and “governed or affected 

by.”9 Conversely, the phrase “entitled to” is defined as to “give (someone) a legal right or 

a just claim to receive . . . something”10 and “to give a right . . . to.”11 

The Legislature has frequently employed the phrase “entitled to” when 

referring to someone or something having a right to a specific benefit. See W.Va. Code § 

5-10-2(11) (2013 & Supp. 2014) (“is an employee . . . entitled to credited service”); W.Va. 

Code § 7A-2-1(c) (2012) (“Consolidated local governments . . . are entitled to all state and 

federal monetary assistance to the same extent a municipality or county is entitled to such 

assistance.”); W.Va. Code § 9-4-2 (2012) (“Recipients . . . shall be entitled to have costs of 

necessary medical services paid out of the fund[.]”); W.Va. Code § 10-1A-4 (2012) 

(providing that interstate library district may “be entitled to receive any federal aid for which 

it may be eligible[]”); W.Va. Code § 15-1F-8 (2014) (“Members of the organized militia in 

the active service of the State shall be entitled to the same reemployment rights granted to 

members of the reserve components of the armed forces of the United States by applicable 

federal law.”); W.Va. Code § 23-4B-2 (2010) (“For the relief of persons who are entitled to 

8

See New Oxford American Dictionary 1733 (3rd ed. 2010). 

9

See Black’s Law Dictionary 1278 (5th ed. 1979). 

10See New Oxford American Dictionary 579 (3rd ed. 2010). 

11See Black’s Law Dictionary 477 (5th ed. 1979). 

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receive benefits by virtue of Title IV of the federal Coal Mine Health and Safety Act of 

1969”); W.Va. Code § 48-1-231(a) (2014) (“‘Individual entitled to support enforcement 

services under the provisions of . . . Title IV-D of the federal Social Security Act’[.]”).12 We 

find it significant that the Legislature affirmatively chose to use the words “subject to” in the 

exclusionary proviso of West Virginia Code § 21-5C-1(e), rather than employing the phrase 

“entitled to,” as it did in many other statutes. 

In addition to requiring courts to apply a statute by giving words the meaning 

commonly attributed to them, we have further instructed that 

“‘courts must presume that a legislature says in a statute what it 

means and means in a statute what it says there.’” Martin v. 

Randolph County Board of Education, 195 W.Va. 297, 312, 465 

S.E.2d 399, 414 (1995), quoting Connecticut Nat’l Bank v. 

Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 1149, 117 

L.Ed.2d 391, 397 (1992). 

Appalachian Power Co. v. State Tax Dept., 195 W.Va. 573, 586, 466 S.E.2d 424, 437 (1995); 

see also Stinson v. Com., 396 S.W.3d 900, 903 (Ky. 2013) (internal citations omitted) (“The 

plain meaning of the statutory language is presumed to be what the legislature intended.”); 

Haile v. State, 66 A.3d 600, 611 (Md. 2013) (stating that in ascertaining actual intent of 

Legislature court will look to plain language under theory that “Legislature is presumed to 

12We do not suggest any particular interpretation of these statutes. They are cited 

solely for the purpose of demonstrating the Legislature’s repeated use of the phrase “entitled 

to” in its statutory enactments, and we have italicized those words for emphasis. 

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have meant what it said and said what it meant.”); State v. Rama, 689 A.2d. 776, 777 (N.J. 

Super. Ct. App. Div. 1997) (“[W]e are not to presume that the Legislature intended 

something other than what it expressed by its plain language.”); Fox v. Fox, 734 S.E.2d 662, 

667 (Va. Ct. App. 2012) (“We look to the plain meaning of the statutory language, and 

presume that the legislature chose, with care, the words it used when it enacted the relevant 

statute.”). 

In applying the presumption that the Legislature said in West Virginia Code 

§ 21-5C-1(e) what it meant and meant what it said, we conclude that the Legislature 

purposefully created a distinction between those employers with eighty percent or more of 

their employees being subject to the minimum wage and overtime provisions of the FLSA 

as opposed to those employers with less than eighty percent of their employees being subject 

to the FLSA.13 See Appalachian Power Co., 195 W.Va. at 585-86, 466 S.E.2d at 436-37. 

13While not dispositive of the issues being decided, the record contains a West 

Virginia Division of Labor bulletin which states that “[s]ome industries are automatically 

covered under federal law and are therefore exempt from the West Virginia minimum wage 

provisions regardless of specific employee activity.” “In-Home Health Care Providers” are 

among those industries listed in the bulletin. The record also contains a United States 

Department of Labor bulletin addressing which states do not “extend minimum wage and 

overtime provisions to in-home care workers.” (emphasis added.). On this Department of 

Labor bulletin, West Virginia is depicted as a state that does not apply its minimum wage and 

overtime provisions to home health care workers. See Long Island Care at Home, Ltd. v. 

Coke, 551 U.S. 158, 173 (2007) (affording deference to federal dpartment of Labor’s 

interpretation of its own regulations). We observe that these bulletins reflect that state and 

federal labor departments examine whether a category of workers is subject to the FLSA, 

(continued...) 

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In short, this Legislative distinction cannot be altered by attributing a meaning to the phrase 

“subject to” that differs from its plain meaning.14 Accordingly, we conclude that the phrase 

“subject to” in the exclusionary proviso of West Virginia Code § 21-5C-1(e) means under 

the authority of, or governed or affected by, and not “entitled to.”15 

13(...continued)
 

rather than whether a category of workers is definitionally excluded from state wage and
 

hours laws.
 

14Ms. King relies upon Adkins v. City of Huntington, 191 W.Va. 317, 445 S.E.2d 500 

(1994), and Haney v. County Commission of Preston County, 212 W.Va. 824, 575 S.E.2d 

434 (2002), to argue that we have previously interpreted “subject to” in West Virginia Code 

§ 21-5C-1(e) as meaning “entitled to.” However, in neither Adkins nor Haney were we asked 

to address the meaning of the phrase “subject to.” In Adkins, we were asked to determine 

whether a political subdivision of the state was an “employer” under the statutory definition 

of that term as set forth in West Virginia Code § 21-5C-1(e). The phrase “subject to” was 

not an issue because the parties stipulated to the fact that eighty percent of the city’s 

employees were subject to the FLSA. Adkins, 191 W.Va. at 318, 445 S.E.2d at 501. In 

Haney, we addressed a similar issue finding that the county commission was an “employer” 

under West Virginia Code § 21-5C-1(e). We remanded the case for a determination as to 

whether at least eighty percent of all of the county commission’s employees, including 

Sheriff’s employees, were subject to the FLSA, which would take the county commission 

outside the state’s MWMHS. While we used the terms “subject to” and “covered by” in 

Haney, the meaning of the statutory phrase “subject to” was simply not an issue in Haney. 

15Other states have created analogous statutory distinctions. See Parker v. Schilli 

Transp., 686 N.E.2d 845 (Ind. Ct. App. 1997) (finding employer did not fall under state 

minimum wage law where employer subject to FLSA) (emphasis supplied); Hayes v. Rite Aid 

of Michigan, Inc., No. 248015, 2004 WL 1335865 (Mich. App. 2004) (affirming sanctions 

against plaintiff who refused to voluntarily dismiss state wage law overtime compensation 

claim where state law specifically provided that employers subject to FLSA did not fall under 

state wage law) (emphasis supplied); Jones v. OS Restaurant Services, Inc., 245 P.3d 624 

(Okla. Civ. App. 2010) (holding state minimum wage law excluded from its coverage 

employers subject to and complying with FLSA) (emphasis supplied). 

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B. Whether eighty percent or more of WV Choice’s employees 

are “subject to” the FLSA 

We now turn to the issue of whether eighty percent or more of WV Choice’s 

employees are subject to, that is governed or affected by, the FLSA. If so, then WV Choice 

does not fall within the definition of “employer” for purposes of the MWMHS. 

As the circuit court found and as the record reflects, Ms. King admits that she 

is employed in “domestic service employment” to provide “companionship services” for 

individuals who, because of age or infirmity, are unable to care for themselves. The 

uncontested evidence further demonstrates that more than eighty percent of WV Choice’s 

employees are direct care workers who are engaged in “domestic service” employment 

through the provision of in-home “companionship services” to the elderly and infirm. 

“Domestic service” employment is clearly governed by the FLSA. As the 

United States Supreme Court explained, 

[i]n 1974, Congress amended the Fair Labor Standards 

Act of 1938 (FLSA or Act) . . . to include many “domestic 

service” employees not previously subject to its minimum wage 

and maximum hour requirements. See Fair Labor Standards 

Amendments of 1974 . . . (adding 29 U.S.C. § 206(f), which 

provides for a minimum wage for domestic service employees, 

and § 207( l ), which extends overtime restrictions to domestic 

service employees). When doing so, Congress simultaneously 

created an exemption that excluded from FLSA coverage certain 

subsets of employees “employed in domestic service 

employment,” including babysitters “employed on a casual 

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basis” and the companionship workers . . . . (codified at 29 

U.S.C. § 213(a)(15)).16 

Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 162 (2007) (footnote added). Other 

courts have insightfully commented that “Congress created the [companionship services] 

exception ‘to enable guardians of the elderly and disabled to financially afford to have their 

wards cared for in their own private homes as opposed to institutionalizing them.’ Welding 

v. Bios Corp., 353 F.3d 1214, 1217 (10th Cir. 2004) (internal citations omitted).” Rawls v. 

Augustine Home Health Care, Inc., 244 F.R.D. 298, 300-01 (D. Md. 2007). 

While “domestic service” employment falls within the penumbra of the FLSA, 

certain domestic service employees are exempt from the FLSA’s minimum wage and 

overtime provisions. 29 U.S.C. § 213(a)(15). Before the exemption applies, however, 

1629 U.S.C. § 213(a)(15) (1998) provides: 

(a) Minimum wage and maximum hour requirements 

The provisions of section 206 (except subsection (d) in the case 

of paragraph (1) of this subsection) and section 207 of this title 

shall not apply with respect to – 

 ̇  ̇  ̇  ̇ 

(15) any employee employed on a casual basis in 

domestic service employment to provide babysitting services or 

any employee employed in domestic service employment to 

provide companionship services for individuals who (because of 

age or infirmity) are unable to care for themselves (as such 

terms are defined and delimited by regulations of the 

Secretary)[.] 

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specific criteria must be met in an employee’s domestic service employment. For example, 

the domestic service employment must be “performed by an employee in or about a private 

home (permanent or temporary) of the person by whom he or she is employed.” 29 C.F.R. 

§ 552.3. Further, the companionship services may include household work such as meal 

preparation, bed making, washing of clothes, and other similar services. See 29 C.F.R. § 

552.6.17 While general household work may be performed, such work may “not exceed 20 

percent of the total weekly hours worked” for the § 213(a)(15) exemption to apply.18 Id. In 

addition, companionship services do not include services “relating to the care and protection 

of the aged or infirm which require and are performed by trained personnel, such as a 

1729 C.F.R § 552.6 currently provides, in part: 

As used in section 13(a)(15) of the Act [29 U.S.C. § 

213(a)(15)], the term companionship services shall mean those 

services which provide fellowship, care, and protection for a 

person who, because of advanced age or physical or mental 

infirmity, cannot care for his or her own needs. Such services 

may include household work related to the care of the aged or 

infirm person such as meal preparation, bed making, washing of 

clothes, and other similar services. They may also include the 

performance of general household work: Provided, however, 

That such work is incidental, i.e., does not exceed 20 percent of 

the total weekly hours worked. The term “companionship 

services” does not include services relating to the care and 

protection of the aged or infirm which require and are performed 

by trained personnel, such as a registered or practical nurse. 

18As indicated previously, the record reflects that WV Choice employees rarely 

perform such general household work and, when they do, such work does not exceed twenty 

percent of the work performed in any given week by any direct care worker, including Ms. 

King. 

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registered or practical nurse.” Id. Ms. King’s employment in the provision of 

companionship services meets the criteria required to invoke the exemption. 

Furthermore, through its regulations, the United States Department of Labor 

has extended the § 213(a)(15) exemption to persons, like Ms. King, who are employed by 

third-party employers, such as WV Choice, to provide companionship services. See 29 

C.F.R. § 552.109(a) (providing that “[e]mployees who are engaged in providing 

companionship services, as defined in § 552.6, and who are employed by an employer or 

agency other than the family or household using their services, are exempt from the Act’s 

minimum wage and overtime pay requirements byvirtue of [§ 2]13(a)(15)”);19 see also Coke, 

19We observe that beginning January 1, 2015, employees engaged in domestic 

employment through the provision of companionship services will no longer be exempted 

from the FLSA’s minimum wage and overtime provisions. See 29 C.F.R. § 552.109(a) 

(effective Jan. 1, 2015) (“Third party employers of employees engaged in companionship 

services within the meaning of § 552.6 may not avail themselves of the minimum wage and 

overtime exemption provided by section [2]13(a)(15) of the Act[.]”). As the Wage and Hour 

Division of the United States Department of Labor explains in its Fact Sheet: Application of 

the Fair Labor Standards Act to Domestic Service, Final Rule, regarding this rule change: 

Minimum Wage and Overtime Protections. This Final Rule . . 

. is prohibiting third party employers, such as home care 

agencies, from claiming the companionship . . . exemption[]. 

The major effect of this Final Rule is that more domestic service 

workers will be protected by the FLSA’s minimum wage and 

overtime provisions. 

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at 172 (finding that “the Department [of Labor] intended the third-partyregulation [29 C.F.R. 

§ 109(a)] as a binding application of its rulemaking authority.”).20 

Ms. King asserts that her exemption from receiving overtime compensation 

under the FLSA means that WV Choice meets the definition of “employer” in the MWMHS. 

We disagree. Importantly, the applicability of a particular FLSA exemption does not mean 

that an employer or an employee is no longer subject to the FLSA. By way of illustration, 

in Brown v. Ford Storage and Moving Co., Inc., 224 P.3d 593 (Kan. App. 2010), the court 

determined that the defendant employers did not meet the definition of “employer” for 

purposes of Kansas’s minimum wage and maximum hours statutes because they were 

“subject to” the FLSA. Id. at 601. The Court of Appeals of Kansas reached this decision 

even though the plaintiff truck driver employees were exempt from the overtime 

compensation requirements of the FLSA.21 As the Kansas court sagely instructed, “a party 

may be exempt from certain aspects of the FLSA without being categorically or 

20In Coke, the Supreme Court addressed the conflict between 29 C.F.R. § 552.109(a), 

which extends the § 213(a)(15) exemption to those who are employed by a third party 

employer to provide companionship services, compared to 29 C.F.R. § 552.3, which applies 

the § 213(a)(15) exemption to domestic services performed by an employee in or about a 

private home of the person by whom he or she is employed. The Supreme Court concluded 

that 29 C.F.R. § 552.109(a) extends the § 213(a)(15) exemption to companionship workers 

employed by third-party employers. 

21The Kansas statute excludes from its definition of “employer” for purposes of its 

minimum wage and maximum hours law “any employer who is subject to the provisions of 

the fair labor standards act[.]” K.S.A. 44-1202(d) (2000 & Supp. 2013). 

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jurisdictionally excluded from the statute.”22 Id.; see also Lumry v. State of Kansas, 307 P.3d 

232 (Kan. Ct. App. 2014) (citing Brown with approval and finding employer exempt from 

Kansas maximum hours and minimum wage law even though employer immune from lawsuit 

for damages under FLSA); Vanartsdalen v. Deffenbaugh Industries, Inc., No. 09-2030-EFM, 

2011 WL 1002027, *45 (D. Kan. 2011) (finding employer subject to FLSA was not subject 

to state overtime law even though plaintiff’s employment was exempt from FLSA overtime 

requirements). Despite being exempt from the overtime compensation provisions of the 

FLSA, WV Choice and its employees remain subject to other provisions of the FLSA, 

including statutes and regulations related to discrimination on the basis of sex; keeping and 

preserving employee records related to payroll, hours worked, and other practices and 

conditions of employment; and restrictions on the employment of minors and students. See 

29 U.S.C. §§ 206(d)(1) (1998); 211(c) (1998); 212(c) (1998); and 214 (1998). Thus, we 

22Ms. King argues that Brown and other cases relied upon by WV Choice are 

distinguishable from the case sub judice because the state wage and hours laws in those cases 

exclude, by definition, employers who are subject to the FLSA, rather than employees who 

are subject to the FLSA. Ms. King essentially contends that this Court must determine 

whether more than twenty percent of an employer’s employees are exempt from the FLSA, 

rather than considering whether the employer is subject to the FLSA. This argument seems 

to be based on her underlying theory that “subject to” means “entitled to,” which we have 

rejected. While we acknowledge the distinction that Ms. King endeavors to draw, we are 

nonetheless persuaded by the court’s reasoning in Brown that “a party may be exempt from 

certain aspects of the FLSA without being categorically or jurisdictionally excluded from the 

statute.” Brown, 224 P.3d at 601. Ms. King remains subject to the FLSA, although she is 

exempted from its overtime provisions. 

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conclude that the applicability of the § 213(a)(15) exemption does not equate with Ms. King 

not being subject to, or governed by, the FLSA. 

C. Whether the FLSA applies to WV Choice 

In addition to challenging the circuit court’s ruling that WV Choice’s domestic 

service workers are under the authority of, or governed by, the FLSA, Ms. King also 

challenges the circuit court’s ruling that the FLSA applies to WV Choice. For purposes of 

the FLSA, an “employer” is defined as “any person acting directly or indirectly in the interest 

of an employer in relation to an employee.” 29 U.S.C. 203(d) (1998). Although WV Choice 

clearly meets this statutory definition, Ms. King contends that the FLSA does not extend to 

WV Choice because it is engaged in purely intrastate commerce. Again, we disagree. 

In 1961, the FLSA was amended to add what is referred to as “enterprise 

coverage.” As one court has explained, 

[t]he concept of enterprise coverage was added by amendments 

in 1961 and expanded by amendments in 1966. Under the 

concept of enterprise coverage, a business that qualifies as a 

covered enterprise within the meaning of the statute is subject to 

the [FLSA’s] requirements with respect to all its employees, 

including workers engaged in purely local activities. . . . [T]he 

[FLSA], as originally enacted, covered employees individually 

when their particular activities had something to do with 

interstate commerce. Amendments to the Act in 1961 and 1966 

extended coverage to all employees working for a covered 

enterprise, whether or not the particular employee’s activities 

had anything to do with interstate commerce. 

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Shultz v. Poirier, 300 F.Supp. 1156, 1158 (D.C. La. 1969). Several years later, in 1974, 

Congress amended its Congressional findings to expressly state that “the employment of 

persons in domestic service in households affects commerce.” 29 U.S.C. § 202(a) (1998) 

(emphasis added). 

Through both statutory and regulatory definition, an enterprise is engaged in 

commerce if its employees handle or otherwise work on goods or materials that have moved 

in commerce and it has an annual gross volume of sales or business in excess of $500,000, 

exclusive of excise taxes. See 29 U.S.C. § 203(s)(1)(A)(1998);23 see also 29 C.F.R. § 

779.238.24 The undisputed evidence in the record demonstrates that at any given time, WV 

2329 U.S.C. 203(s) provides: 

(1) “Enterprise engaged in commerce or in the production of 

goods for commerce” means an enterprise that– 

(A)(i) has employees engaged in commerce or in the 

production of goods for commerce, or that has employees 

handling, selling, or otherwise working on goods or materials 

that have been moved in or produced for commerce by any 

person; and 

(ii) is an enterprise whose annual gross volume of sales 

made or business done is not less than $500,000 (exclusive of 

excise taxes at the retail level that are separately stated)[.] 

2429 C.F.R. § 779.238 provides, in part, that 

[a]n enterprise . . . will be considered to have 

employees engaged in commerce or in the 

(continued...) 

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Choice employs 2000 direct care workers who are “handling . . . goods or materials that 

have been moved in or produced for commerce[,]” and that its annual gross volume of sales 

made or business done is not less than $500,000, exclusive of excise taxes. Id.; see also 29 

C.F.R. § 779.238; Dias v. HBT, Inc., 2012 WL 294749 *4 (D.Md. Jan. 21, 2012) 

(recognizing employer fell within purview of FLSA where its employees handled goods or 

materials that had moved in interstate commerce). Further, Ms. King testified that she 

routinely handles and purchases food, household cleaning supplies, medications, and 

toiletries in the course of performing the companionship services that she provides. As Ms. 

King explained, she handles eggs and makes toast when cooking breakfast for a client; she 

shops at the Dollar General for her client; she handles linen and laundry detergent when 

doing laundry for her client; and she handles purchased toiletries when assisting a client 

with grooming. It is clear that in her provision of these services, Ms. King is handling 

goods that have moved or have been produced in interstate commerce. See Dole v. Odd 

Fellows Home Endowment Bd., 912 F.2d 689, 695 (4th Cir. 1990) (finding that boards, 

which managed and funded home for sick or aged persons, were “enterprise” in interstate 

commerce under FLSA where employees of home “prepared and served food to the 

24(...continued) 

production of goods for commerce, including the 

handling, selling or otherwise working on goods 

that have been moved in or produced for 

commerce by any person, if . . . it regularly and 

recurrently has at least two or more employees 

engaged in such activities. 

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residents, washed the residents’ laundry . . . all the time using goods and materials that had 

traveled in interstate commerce.”). 

Other undisputed evidence in the record reflects the existence of “enterprise 

coverage.” Some of WV Choice’s employees reside in states other than West Virginia. 

Further, some of its employees transport West Virginia residents to other states for the 

purpose of obtaining goods or services. WV Choice also uses the U.S. Mail to send 

paychecks to some of its out-of-state employees, and it uses direct deposit banking services 

to transfer funds from its West Virginia bank to out-of-state banks for payroll purposes. As 

one court has aptly observed, “[i]t is difficult to imagine a defendant employer in the 

twenty-first century that does not have employees who handle, sell, or otherwise work on 

goods or materials that have moved in or have been produced for commerce by any person.” 

Dias, 2012 WL 294749, *4. Accordingly, we conclude that WV Choice is an enterprise 

engaged in commerce as defined under the FLSA. 

In consideration of all of the above, we conclude that WV Choice is a FLSAregulated employer. We further conclude that because more than eighty percent of its 

employees are “subject to a federal act relating to minimum wage, maximum hours and 

overtime compensation[,]” WV Choice does not meet the definition of an “employer” under 

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the state’s MWMHS for purposes of Ms. King’s overtime compensation claim. See W.Va. 

Code § 21-5C-1(e).25 

IV. Conclusion 

For all of the foregoing reasons, and based upon the specific facts and 

circumstances of this case, this Court is of the opinion that the circuit court acted properly 

in granting summary judgment to WV Choice. The Circuit Court of Kanawha County’s 

final order entered on October 31, 2013, is affirmed. 

Affirmed. 

25Lastly, Ms. King cites the “savings clause” of the FLSA, 29 U.S.C. § 218(a) (1998), 

which allows states to enact wage laws more favorable than those under the FLSA. 

However, this savings clause does not apply under the facts of this case. Because WV 

Choice does not meet the definition of “employer” under the MWMHS, a comparison of the 

FLSA’s wage laws with those provided under the MWMHS is unwarranted. 

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