135 F. Supp. 3d 1232
D. Colo.2015Background
- Plaintiff Michele Kennett worked as a Bayada home health aide (HHA); Bayada paid a flat $10/hr and did not pay overtime for hours over 40/week.
- Bayada recruited, trained, supervised, evaluated, paid HHAs, maintained employment records, required non‑compete and uniform rules, and controlled care plans via Clinical Managers.
- HHAs performed personal care and limited quasi‑medical tasks (bathing assistance, toileting, mobility assistance, bed changes, vitals monitoring) but were not authorized to perform advanced nursing procedures or directly administer medication.
- Colorado Minimum Wage Order (MWO) exempts “companions, casual babysitters, and domestic employees employed by households or family members to perform duties in private residences” from overtime (the “Companion Exemption”); MWO does not define “companion.”
- The Division of Labor issued an Opinion Letter treating the Colorado exemption as mirroring federal law (allowing third‑party employer exemptions); parties dispute whether that letter is entitled to deference.
- Court held summary‑judgment phase limited to whether the Companion Exemption bars Kennett’s state‑law overtime claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HHAs qualify as “companions” under Colorado MWO | Kennett: HHAs perform personal care and some quasi‑medical tasks but not fellowship-only duties; still fall within MWO’s catchall (meal prep, bed changing, washing) and thus qualify | Bayada: HHAs provide specialized care beyond companionship and thus should not be considered "companions" | Court: HHAs do qualify as "companions" — their services fit the MWO’s catchall description |
| Whether Companion Exemption applies when employee is hired by third‑party agency | Kennett: MWO’s grammar and the household‑qualifier require that companions be "employed by households or family members," so third‑party agency employees are not exempt | Bayada: Exemption mirrors federal regs allowing third‑party employer exemptions; companions need not be directly employed by household | Court: The household qualifier grammatically modifies companions and babysitters as well as domestic employees; exemption does not cover third‑party agency employees |
| Whether Colorado Division of Labor Opinion Letter deserves deference | Kennett: The Opinion Letter is disclaimer‑laden, conclusory, lacks analysis, and conflicts with plain MWO language; it is not entitled to deference | Bayada: The Division’s interpretation of its own regulation merits substantial deference and supports third‑party exemption | Court: Opinion letter is not persuasive/deferential — it is conclusory, contrary to plain text, and lacks formality or reasoned analysis |
| Whether clients are joint/special employers such that exemption applies | Bayada: Clients exercised control over care, could reject or request HHAs, and thus were joint employers under special‑employment tests | Kennett: Bayada retained ultimate control (hiring, discipline, policies, pay, records); clients’ marginal control does not create joint employment | Court: No joint/special employment — Bayada retained the requisite control; clients’ limited choices do not make them employers |
Key Cases Cited
- Home Care Ass’n of Am. v. Weil, 799 F.3d 1084 (D.C. Cir. 2015) (federal DOL regulation narrowing companionship exemption upheld)
- Estate of David v. Snelson, 776 P.2d 813 (Colo. 1989) (qualifying clause following a list applies to all prior items)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (informal agency interpretations entitled to weight proportionate to their persuasiveness)
- Evans v. Webster, 832 P.2d 951 (Colo. App. 1991) (special/dual employment factors for borrowed‑servant analysis)
- Chase v. Farmers Ins. Exch., 129 P.3d 1011 (Colo. App. 2004) (employer bears burden to show employee plainly and unmistakably falls within an exemption)