950 F.3d 724
10th Cir.2020Background
- Maxim Healthcare, a private staffing company, employed Theresa Jordan and others as in-home "companions" in Colorado; Maxim did not pay overtime (2013–2015 period at issue).
- Colorado Minimum Wage Order (Wage Order) exempts "companions, casual babysitters, and domestic employees employed by households or family members to perform duties in private residences" from overtime; the scope of the phrase "employed by households or family members..." (the "household modifier") was disputed.
- The Colorado Division of Labor’s Bulletin and opinion letters (since 1998) interpreted the Wage Order to mirror federal FLSA rules in effect then, treating companions employed by third-party agencies as exempt; federal regulations similarly exempted third-party-employed companions for much of the period (changed by DOL effective Jan. 1, 2015).
- Jordan sued in state court (putative class); Maxim removed. The district court granted summary judgment to Jordan, holding the household modifier limited the exemption to companions employed directly by households/families, and awarded overtime damages.
- On appeal, the Tenth Circuit reversed: it held the Wage Order ambiguous but, after applying Colorado interpretive canons and giving persuasive weight to the Division’s long-standing interpretation, concluded the companionship exemption covers companions employed by third-party employers; it vacated the damages award and directed judgment for Maxim.
Issues
| Issue | Jordan's Argument | Maxim's Argument | Held |
|---|---|---|---|
| Whether companions employed by third-party employers are covered by the Wage Order companionship exemption | The plain text ("employed by households or family members...") limits the exemption to companions employed directly by households/families | The household modifier applies only to "domestic employees," so "companions" (and casual babysitters) are exempt regardless of employer identity; agency practice and federal law support this | Exemption ambiguous; best reading—and harmonization with enabling statute and surplusage canon—holds the exemption covers all companions, including those employed by third-party employers; reversed district court |
| Whether Maxim must satisfy the "plainly and unmistakably" standard for exemptions (FLSA-style narrow construction) | The Wage Order’s plain language bars third-party employers from invoking the exemption; agency interpretation cannot override plain text | Encino undermines the narrower federal "plainly and unmistakably" approach; Maxim need only show a "fair reading" | Court assumed without deciding that Maxim need not meet the heightened standard post-Encino; applied a "fair reading" standard and found in Maxim’s favor |
| Role and weight of interpretive aids (series-qualifier, surplusage, enabling statute, and agency interpretation) | District court relied on series-qualifier and plain meaning to apply modifier to "companions" | Surplusage, harmonization with the enabling statute, context, and Division’s longstanding interpretation favor Maxim’s reading | Series-qualifier not dispositive here; surplusage and enabling-statute harmonization favor Maxim; Division’s long-standing interpretation is persuasive and supports Maxim |
Key Cases Cited
- Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018) (federal rule rejecting overly narrow, "plainly and unmistakably" construction of FLSA exemptions)
- Lockhart v. United States, 136 S. Ct. 958 (2016) (caution on mechanical application of series-qualifier/last-antecedent canons; context governs modifier scope)
- Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147 (10th Cir. 2016) (applying Colorado regulatory interpretation rules to Wage Order provisions)
- Estate of David v. Snelson, 776 P.2d 813 (Colo. 1989) (use of series-qualifier and surplusage canons in statutory/regulatory construction)
- Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987) (administrative construction can be persuasive when longstanding)
- Benefield v. Colorado Republican Party, 329 P.3d 262 (Colo. 2014) (canons of construction are aids, not absolute rules)