A Florida construction worker was employed by a firm in the home restoration and repair business from November 2006 to February 2008. He resigned after arguing with the owners about back wages he felt he was owed, and he sued in late July. His basic contention was that, because of the type of work he was doing, he should have been covered by the Fair Labor Standards Act.

What happened. "Josephs" contended that, even though his employer, Wall to Wall Residence Repairs, was not covered by FLSA, the project he worked on most extensively was at an enterprise that was covered. The U.S. Department of Labor (DOL) has interpreted a particular section of FLSA to mean that all employees engaged in construction work, including maintenance and repair work, that is "closely or intimately related" to a covered enterprise should be brought "within the scope" of FLSA. Josephs relied on that DOL regulation in his lawsuit.

Failing that, he argued in federal district court that Wall to Wall itself should have been covered by FLSA. He asserted that the firm's tax returns grossly understated its income, which, based on Josephs' calculations, rose to more than the $500,000 minimum required for FLSA coverage. But income is only one of two requirements for FLSA; the other is that the firm must be engaged in interstate commerce.

Josephs acknowledged that he had never traveled outside Florida during his employment, and the district judge ruled for Wall to Wall. Josephs appealed to the 11th Circuit, which covers Alabama, Florida, and Georgia.

What the court said. Appellate judges looked at the complexities of FLSA, which was enacted in 1938, especially in regard to whether Wall to Wall could be seen as engaged in interstate commerce. Are tools and supplies like vehicles, paint, tape, drywall, and the like "goods or materials" under FLSA? If a firm uses such goods and materials, is it engaged in interstate commerce?

Rather than decide, judges took the easy way out: They rejected the DOL regulation regarding construction work as overbroad. That relieved them of needing to decide whether Wall to Wall might be covered by FLSA. So Josephs lost his case again. Josendis v. Wall to Wall, U.S. Court of Appeals for the 11th Circuit, No. 09-12266 (2011).

Point to remember: For purposes of FLSA coverage, a firm must have "at least two employees engaged in interstate commerce or the production of goods for interstate commerce, or who handle, sell, or otherwise work on goods or materials that had once moved or been produced for interstate commerce." Making such distinctions isn't easy under the best of terms if an organization works only in one state.