THERESA JORDAN, individually and on behalf of the Proposed Colorado Rule 23 Class, Plaintiff - Appellee, v. MAXIM HEALTHCARE SERVICES, INC., Defendant - Appellant.
No. 18-1290
United States Court of Appeals, Tenth Circuit
February 19, 2020
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-01372-KMT)
David B. Salmons (Lincoln O. Bisbee, Matthew J. Sharbaugh and Michael E. Kenneally, with him on the briefs), Morgan, Lewis & Bockius LLP, Washington, D.C., for Defendant-Appellant.
Robert E. DeRose, Barkan Meizlish Handelman Goodin DeRose Wentz, LLP, Columbus, Ohio (Jason J. Thompson, Sommers Schwartz, P.C., Southfield, Michigan; Timothy J. Becker and David H. Grounds, Johnson Becker, PLLC, St. Paul, Minnesota, with him on the brief), for Plaintiff-Appellee.
Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.
Under Colorado law, employers generally must pay all employees time-and-a-half wages for overtime hours. That said, the law carves out several express exemptions from this requirement. Specifically, employers need not pay overtime wages to “companions, casual babysitters, and domestic employees employed by households or family members to perform duties in private residences.”
I
Maxim Healthcare Services, Inc. (“Maxim“) is a for-profit staffing company that provides customers with in-home care.
A
Before turning to Colorado law, we offer a primer on federal wage-and-hour law, which undergirds our analysis of the state-law issues before us. The lynchpin federal law in this case is the Fair Labor Standards Act (the “FLSA“),
The U.S. Department of Labor, which is charged with implementing the FLSA, has promulgated regulations explicating this exemption. One such regulation, which was in effect during most of the years at issue here, defined “companionship services” as “those services which provide fellowship, care, and protection for a person who . . . cannot care for his or her own needs.” 40 Fed. Reg. 7404, 7405 (Feb. 20, 1975) (language formerly codified at
B
Like the FLSA, Colorado statute provides for overtime pay “at a rate of one and one-half times the regular rate of pay.”
This appeal centers around the Wage Order‘s overtime-pay requirement and the scope of a certain exemption to that requirement. In particular, section four of the Wage Order prescribes a general rule that all employees working in certain industries5 must be paid the statutorily set time-and-a-half pay rate for overtime hours.
The Wage Order is short on details. Significantly, it is silent as to whether third-party employers such as Maxim must pay overtime wages to companions.
Moreover, it does not define such key terms as “companions,” “casual babysitters,” and “domestic employees.” See
That said, the Wage Order does not exist in a vacuum, but rather within the broader regulatory scheme within which it was promulgated. To begin, the Division has issued an Advisory Bulletins and Resource Guide (the “Bulletin“) “for general advisory, clarification, and explanatory purposes,” which includes a “Keyword Index” addressing some of the Wage Order‘s terms that are central to оur analysis. Aplt.‘s App. at 263 (Excerpt of Advisory Bulletins & Resource Guide, dated Aug.
Through opinion letters, the Division has provided further context on the companionship exemption. For example, in response to Maxim‘s inquiry to the Division in 2006 “concerning the companionship exemption and third party employers,” the Division issued a letter detailing its “position” on the exemption as follows: “the practice of applying the companionship exemption in situations involving third party employers is acceptable under . . . [the] Wage Order.” Id. at 192–93 (Colo. Dep‘t of Labor & Emp‘t, Div. of Labor, Op. Letter (dated Aug. 3, 2006)). In so advising, the Division explained that “the treatment and interpretation of the companions exemption in the Wage Order was intended to mirror” the federal scheme, which in turn explicitly exempted companions employed by third-party employers from the overtime-pay requirement. Id. at 192. Six years later, the Division sent Maxim another opinion letter reaffirming this interpretation. See id. at 187–90 (Colo. Dep‘t of Labor & Emp‘t, Div. of Labor, Op. Letter (dated June 14, 2012)).
The Division has followed this interpretation of the Wage Order in practice, too. In response to a claim filed with the Division by a Maxim employee in 2012, the Division reiterated that Colorado‘s companionship exemption was “intended to mimic federal law.” Id. at 541 (Division‘s Resp. to Maxim Emp.‘s 2012 Claim, dated Aug. 28, 2012). Two years later, anоther Maxim employee filed a claim with the Division, in support of which that employee argued that the
companionship exemption applied to only those companions “employed directly by households,” not to those employed by third-party employers such as Maxim. Id. at 544 (Maxim Emp.‘s Claim, dated June 24, 2014). The Division rejected that argument and concluded that it lacked “the statutory authority to pursue this matter further,” once again noting its “position” was that “the treatment and interpretation of the companions exemption in the Wage Order is intended to mirror . . . federal law.” Id. at 546 (Division‘s Resp. to Maxim Emp.‘s 2014 Claim, dated July 23, 2014).
C
Against this statutory and regulatory backdrop, Ms. Jordan filed this putative class action in state court in May 2015. She alleged that Maxim violated Colorado law by refusing to pay her and other Maxim companions overtime wages as required by section 4 of the Wage Order. Maxim removed the suit to federal court.
Once in federal court, Ms. Jordan moved for partial summary judgment as to Maxim‘s liability. In her motion, she argued that under the plain language of the companionship exemption, only those companions who were employed by households or family members were exempt from the Wage Order‘s overtime-pay requirement. She also pointed out that neither party disputed that Maxim was a third-party
“companions” under Colorado law, and that Maxim had not paid Ms. Jordan or its other companions overtime wages from 2012 through 2015. Thus, Ms. Jordan reasoned, Maxim had improperly relied on the companionship exemption in denying Ms. Jordan and the other Maxim companions overtime wages, thereby rendering Maxim liable for all unpaid overtime for the relevant period and entitling Ms. Jordan to summary judgment against Maxim.
Maxim cross-moved for summary judgment. It argued that the household modifier (i.e., the phrase, “employed by households or family members to perform duties in private residences“) applied only to “domestic employeеs” and not to “companions” or “casual babysitters.” In other words, according to Maxim, the companionship exemption extended to all companions—including those employed by third-party employers. On that reading, Maxim concluded that, as a third-party employer, it had no duty to pay Ms. Jordan or the class of Maxim companions overtime wages.
The district court sided with Ms. Jordan, adopting in all relevant respects her reading of the companionship exemption. It reasoned that under its plain language, the exemption applied only to companions who were employed by households or family members, and thus did not apply to employees working for third-party employers such as Maxim. For that reason, the court granted Ms.
Jordan‘s summary-judgment motion in relevant part, and entered final judgment against Maxim and in favor of Ms. Jordan.
Maxim now appeals from that judgment. It presents one question for our review: Did the district court err in concluding that third-party employers are precluded from invoking the companionship exemption?6 Put differently, does the companionship exemption apply to companions working for third-party employers, and not just to those working for households or family members?
II
In answering the foregoing question, we review the district court‘s order granting Ms. Jordan summary judgment de novo. See, e.g., Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015). And we apply “the same legal standards the district court applied under
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
We also review the district court‘s interpretation of state law de novo. See, e.g., Phila. Indem. Ins. Co. v. Lexington Ins. Co., 845 F.3d 1330, 1336–37 (10th Cir. 2017). If the state‘s highest court has not decided an issue, “our task is to predict
III
We now turn to the question at hand: Do “companions” employed by third-party employers—as opposed to by households or family members—fall within the companionship exemption of the Wage Order?
Maxim answers that question in the affirmative. It believes the companionship exemption is best read as including companions employed by third-party employers. The district court‘s contrary reading, Maxim contends, creates “glaring redundancy” and “conflicts with the enabling statute for the Wage Order[].” Aplt.‘s Opening Br. at 21. Maxim also points out that its
interpretation comports “with the Division‘s longstanding and consistent interpretation” of the Wage Order. Id. For those reasons, Maxim asks us to reverse the district court‘s judgment.
Ms. Jordan disagrees. In her view, the companionship exemption is unambiguous, as “the plain language makes it clear that the [companionship exemption] does not extend to third party employers.” Aplee.‘s Resp. Br. at 16–17; see Oral Arg. at 19:15–20:30 (reiterating her argument that the exemption is unambiguous). She further argues that because of the exemption‘s lack of ambiguity, it is of no moment that the Division has consistently adopted a contrary interpretation of the exemption.
We agree with Maxim. That is to say, we hold that the companionship exemption applies to all companions—including those employed by third-party employers. As a result, Colorado law did not require Maxim to pay Ms. Jordan or the class of Maxim companions overtime wages. We therefore reverse the final judgment awarding Ms. Jordan and the companion class damages and prejudgment interest.
We explain our holding in four steps. First, we summarize the Colorado interpretive rules that govern our analysis. Second, applying these interpretive rules here we determine that, although the companionship exemption is ambiguous, the ordinary and particular meanings of the relevant terms suggest
that the Division intended the exemption to apply to all companions. Third, we explain how Colorado‘s canons of construction reinforce that suggestion. Fourth, without deciding if deference applies to the Division‘s longstanding and consistent interpretation of the companionship exemption, we discuss why the Division‘s interpretation provides persuasive support for our holding.
A
Colorado law governs “[o]ur interpretation and application of the Wage Order” and, more specifically, of the companionship exemption. Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147, 1160 (10th Cir. 2016). And under Colorado law, the rules for interpreting a regulation are the same “basic rules of interpretation which pertain to the construction of a statute.” Regular Route Common Carrier Conference of Colo. Motor Carriers Ass‘n v. Pub. Utils. Comm‘n, 761 P.2d 737, 745 (Colo. 1988). To that end, we interpret the companionship exemption according to Colorado‘s ordinary rules of statutory interpretation. See, e.g., Deherrera, 820 F.3d at 1160–62 (using those interpretive rules to interpret the Wage Order).
the [regulatory] language and consider it within the context of the [regulation] as a whole.” Denver Post Corp. v. Ritter, 255 P.3d 1083, 1088 (Colo. 2011). This exercise ordinarily entails reading words and phrases “according to the rules of grammar and common usage.”
If the enacting body‘s intent is evident from the text and context, that meaning controls. See, e.g., Deherrera, 820 F.3d at 1161; Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 397 (Colo. 2010). Put another way, when a regulation has only one plausible meaning as divined from its text and context, we apply that meaning, and our analysis ends there: we do not peer beyond the regulation‘s text and context in search of other interpretive clues. See Deherrera, 820 F.3d at 1161; Rags Over the Ark. River, Inc. v. Colo. Parks & Wildlife Bd., 360 P.3d 186, 192 (Colo. App. 2015) (“W[hen] constru[ing] agency regulations[,] . . . we look first to the regulation‘s plain language. If the plain lаnguage is unambiguous, we need not resort to other canons of construction.” (citations omitted)). But if—and only if—a regulation is ambiguous (i.e., “susceptible to multiple interpretations“) do we then “look to other aids in construction” to ascertain the enacting body‘s intent. Specialty, 231 P.3d at 397; see Rags, 360 P.3d at 192; see also City & Cty. of Denver v. Expedia, Inc., 405 P.3d 1128, 1132
(Colo. 2017) (holding that if a statute is “clear and unambiguous, . . . it must simply be applied as written,” but if it is ambiguous, “interpretive aids, or canons of construction,” are “available to help determine which . . . reasonable interpretation[] . . . embodies the legislative intent” (emphasis added)).
Finally, with respect to Maxim‘s burden of proving that Ms. Jordan and the companion class fell within the companionship exemption‘s terms, Maxim was required to prove, according to the district court, “that a particular employee ‘plainly and unmistakably’ qualifies for an overtime exemption.” Aplt.‘s App. at 286 (Order Den. Mot. to Dismiss, dated Mar. 17, 2016) (emphasis added) (quoting Kennett v. Bayada Home Health Care, Inc., 135 F. Supp. 3d 1232, 1238 (D. Colo. 2015), appeal docketed, No. 19-1004 (10th Cir. argued Nov. 19, 2019)). In employing this plainly-and-unmistakably standard, the district court relied on language from, inter alia, Chase v. Farmers Insurance Exchange, a Colorado state case in which the court, like here, contended with the question of whether certain employees fell under an exemption to a certain wage order. See 129 P.3d 1011, 1014–15 (Colo. App. 2004). In resolving that question, the court invoked the plainly-and-unmistakably standard, reasoning that this standard was applicable there because “[u]nder the FLSA, the employer bears the burden of demonstrating that its employee ‘plainly and unmistakably’ qualifies for an exemption,” and the court “perceive[d] no reason why that same burden should not also be placed on
an employer seeking to establish that an employee falls within an exemption under Colorado law.” Id. (quoting Daniels v. Caleel+Hayden, L.L.C., 72 P.3d 466, 468 (Colo. App. 2003)). In other words, the Chase court effectively incorporated the plainly-and-unmistakably standard used to analyze FLSA exemptions under federal law into cases that, like
Despite Chase‘s dictates, Maxim argues on appeal that it need not meet this elevated plainly-and-unmistakably standard. For support, it invokes Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018), in which the Supreme Court rejected a hitherto-employed principle by federal courts that FLSA exemptions must be narrowly interpreted, on the view that courts “have no license to give [an] exemption anything but a fair reading.” Id. at 1142. By rejecting the principle that FLSA exemptions must be narrowly interpreted, according to Maxim, Encino renounced the plainly-and-unmistakably standard. See id. at 1148 n.7 (Ginsburg, J., dissenting) (suggesting that Encino toppled the “longstanding principle” that FLSA exemptions apply only “to those [cases] plainly and unmistakably within their terms and spirit‘” (alteration in original) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). Thus, by Maxim‘s logic, because Chase had concluded that the Colorado standard for invoking a wage-order exemption tracks the federal standard under the FLSA, and because Encino rejected the plainly-
and-unmistakably standard, the plainly-and-unmistakably standard no longer applies to the interpretation of wage-order exemptions under Colorado law post-Encino, and the district court erred in concluding to the contrary here.
In her appeal brief, Ms. Jordan does not contest Maxim‘s argument that the plainly-and-unmistakably standard no longer applies post-Encino. See Aplee.‘s Resp. Br. at 14 (arguing only that Maxim “severely overstate[s]” the district court‘s use of the plainly-and-unmistakably standard, and that the district court had in actuality based its interpretation of the companionship exemption on “the ‘basic rules of interpretation‘” (quoting Richter, 796 F.3d at 1185)). And, at oral argument, Ms. Jordan conceded that she had not preserved this argument. See Oral Arg. at 17:20–18:25. Given this concession, we assume without deciding that Maxim need not show that Ms. Jordan and the Maxim companion class plainly and unmistakably fall within the companionship exemption‘s terms. Cf. United States v. Iley, 914 F.3d 1274, 1279–80 (10th Cir. 2019) (assuming that de novo review applied, despite the fact that the Tenth Circuit had yet to address whether this standard of review applied in such a case, “because the parties present no genuine controversy regarding it“). Rather, for our purposes, Maxim only needs to show that it may invoke the exemption under a “fair reading.”
B
Applying Colorado‘s interpretive rules here, we first look to whether the enacting body‘s intent is clear from the regulation‘s text and context. The enacting body here is the Division, and the relevant text is the companionship exemption. As we explain below, the companionship exemption is ambiguous. And although we believe that the ordinary and particular meanings of the relevant terms suggest that the Division intended the companionship exemption to apply to companions employed by third-party employers (such as Maxim), that suggestion is not so strong as to render the exemption unambiguous.
1
To determine whether the Division‘s intent regarding the companionship exemption is clear, we begin by consulting the relevant text. That text—viz., the companionship exemption—provides that “the following employees or occupations . . . are exempt from all provisions of [the Wage
The parties advance two different readings of this text, with the crux of their dispute concerning the proper construction of the household modifier (i.e., the phrase “employed by households or family members to perform duties in
private residences“). Maxim, on the one hand, argues that the household modifier modifies the term “domestic employees” only; that is, it does not also modify the preceding terms “companions” and “casual babysitters.” On this reading, all companions fall under the companionship exemption, regardless of their employer‘s identity. Ms. Jordan, by contrast, maintains that the household modifier not only modifies “domestic employees,” but that it also modifies “companions” and “casual babysitters.” Read that way, the companionship exemption applies to only those companions “employed by households or family members to perform duties in private residences” and would thus not apply to Ms. Jordan or to Maxim‘s оther companion employees. Maxim‘s and Ms. Jordan‘s readings are both plausible. We have no reasoned way to pick between them, absent an examination of the language‘s context, to which we turn infra. Cf. Brunson v. Colo. Cab Co., 433 P.3d 93, 97 (Colo. App. 2018) (concluding that the term “interstate drivers” in the Wage Order was ambiguous), cert. granted then dismissed, 2019 WL 578344 (Colo. Jan. 29, 2019).
To be sure, the district court proclaimed to the contrary that the companionship exemption had only one “grammatically sound” reading. Aplt.‘s App. at 289 (quoting Kennett, 135 F. Supp. 3d at 1241). It determined that Maxim‘s interpretation was unsound because it “fails to account for its grammatical structure“—i.e., the commas separating the terms “companions” and
“casual babysitters,” and the “and” that appears immediately before “domestic employees“—and because such an interpretation would render the “and” preceding “domestic employees” “either superfluous or nonsensical.” Id. at 288 (quoting Kennett, 135 F. Supp. 3d at 1241). The only phrasing of the companionship exemption that would have rendered the exemption applicable to all companions, according to the district court, would have been the following: “[o]ther exemptions are: companions and casual babysitters, and domestic employees employed by households or family members . . . .” Id. at 288–89 (quoting Kennett, 135 F. Supp. 3d at 1241). But the Division did not draft the companionship exemption that way. So, the district court concluded that the only sound reading of the companionship exemption was that it applied to only those companions employed by households and family members.
On appeal, Ms. Jordan echoes the district court, and argues, more specifically, that the companionship exemption is unambiguous. But beyond insisting that the exemption‘s plain meaning is obvious, she declines to explain how or why that is so. And other than to say that the district court “determined that no such ambiguity existed,” Ms. Jordan does not defend the particulars of the district court‘s supposed declaration to this effect. Aplee.‘s Resp. Br. at 14, 16–17.
We reject the reading adopted by the district сourt and Ms. Jordan. To be sure, commas and conjunctions are important. Indeed, where a drafter places a comma can sometimes altogether change a sentence‘s meaning. See, e.g., ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 161–63
To see the district court‘s error, consider a sign in an apartment complex that says, “No pets allowed. Exceptions include: cats, small dogs, and animals owned by visually impaired persons.” There is no rule of grammar dictating that only cats that are owned by the visually impaired are allowed in the complex. In fact, despite the commas and the placement of “and,” the more natural reading is that the complex permits all cats—regardless of their owners’ visual ability. And just as our fictional sign may be properly read as allowing all cats, the companionship exemption may be properly read as exempting all companions—including those employed by third-party employers. Simply put, the companionship exemption is ambiguous, and the district court erred in concluding otherwise.
2
In view of this ambiguity, we must take a deeper dive into the meaning of the terms “companions,” “casual babysitters,” and “domestic employees.” And this inquiry hints that the companionship exemption applies to all companions. To begin, because neither the General Assembly nor the Division has defined these terms in, respectively, Colorado‘s wage-and-hour statutes or the Wage Order, we “lоok first to the commonly accepted meaning of th[ose] term[s].” Binkley v. People, 716 P.2d 1111, 1113 (Colo. 1986). “When determining the plain and ordinary meaning of words,” the Colorado Supreme Court often looks to “definitions in a recognized dictionary.” Renfrand v. N.Y. Life Ins. Co., 419 P.3d 576, 580 (Colo. 2018). Such dictionaries include Black‘s Law Dictionary (“Black‘s“), the Oxford English Dictionary (“Oxford English“), the American Heritage Dictionary of the English Language (“American Heritage“), and Merriam-Webster Online Dictionary (“Merriam-Webster“).7 By consulting these recognized dictionaries, we can identify the commonly accepted meanings of the terms “companions,” “casual babysitters,” and “domestic employees.”
We start with “companions.” At its most basic, the word “companion” refers to “[a] person employed to assist, live with, or travel with another.” Companion, AMERICAN HERITAGE 384 (3d ed. 1992). This assistance ordinarily entails “help[ing] with personal matters such as bathing and dressing.” Companionship Services, BLACK‘S (11th ed. 2019). Due to the intimacy
We next turn to the ordinary meaning of “casual babysitters.” The various above-referenced dictionaries agree that “casual” in the employment context means “occurring without regularity.”8 Casual, BLACK‘S. These dictionaries likewise concur on the meaning of “babysitter,” defining the term as “[a] person engaged to care for one or more children when the parents or guardians are not at home.”9 Babysitter, AMERICAN HERITAGE, supra, аt 133. So a “casual babysitter” is a person who irregularly or occasionally is hired to care for children while their guardians are not home.
As for the ordinary meaning of “domestic employees,” none of the referenced dictionaries has a dedicated entry for the term, but we can still ascertain its commonly accepted meaning. The word “domestic,” which in this context is an adjective, means “[o]f or relating to the family or household.” Domestic, AMERICAN HERITAGE, supra, at 550. This adjective modifies the noun “employee,” which the Wage Order defines as “any person . . . performing labor or services for the benefit of an employer” and who is not “primarily free from control and direction in the performance of the service.”
An inference arises from these ordinary definitions. Companions and casual babysitters have a close personal connection with the individuals receiving their services. Companions have such a connection with the individual whom they assist with personal matters. Casual babysitters have such a connection with the children they look after. And domestic employees “employed by households or family members to perform duties in private residences” have a similar connection. A maid, for instance, who is hired by a family to come into their home and clean twice a month, has a close personal connection to that family (albeit, typically to a lesser extent than a companion), as evinced by the family‘s opening the doors of their home to her, allowing her access to the personal and intimate spaces of their home to clean, and
This inference begets another. As mentioned, all “companions” have the requisite close personal connection to those whom they serve. This is true even of those companions who are employed by third-party employers: such companions have a close personal connection with the individual with whom they may live and whom they assist with bathing, dressing, or other personal matters. And so the household modifier is unnecessary to effect the Division‘s intent as it applies to companions. In fact, applying the modifier to companions would frustrate that intent, as it would exclude some companions—namely, those employed by third-party employers—to whom the Division intended the companionship exemption to apply. The same is not true for domestic employees, however. A maid employed to clean a home by a third-party housekeeping service, as opposed to one employed directly by a family to perform these services, ordinarily will not have a close personal connection with those individuals receiving her services—if any connection at all. After all, those individuals have not personally placed their trust in the maid not to steal or otherwise engage in misconduct in the private and intimate spaces of their home while cleaning; rather, those individuals are holding the third-party employer responsible for vetting its employees and ensuring that they are fit to enter and clean the private homes of strangers. Thus, the application of the household modifier to the term “domestic employees” ensures that the companionship exemption extends only to those domestic employees with the requisite close рersonal connection. The application of the household modifier to “companions,” on the other hand, would not effectuate such a distinction. More specifically, given that all companions—even those employed by third-party companies, like Maxim—have the requisite close personal connection, application of the household modifier to the term “companions” would actually have the effect of excluding companions who satisfy the close-personal-connection requirement from the coverage of the companionship exemption. That leads us to the conclusion that we will best give effect to the Division‘s intent by construing the household modifier as applying to “domestic employees” but not “companions.”
Our conclusion gains further strength when we consider the particular meaning of the relevant terms. Terms can acquire a particular meaning “by legislative definition or otherwise.”
As Maxim points out, the terms “companions,” “casual babysitters,” and “domestic employees” have particular meanings in wage-and-hour law.11 Both the federal regulation operative during times material here and the Division‘s Bulletin define “[c]ompanionship services” as those that “provide fellowship, care and protection for a person, who due to advanced age or physical or mental conditions cannot care for his or her own needs.” Aplt.‘s App. at 277; see 40 Fed. Reg. at 7405 (language formerly codified at
Plugging these particular meanings into the companionship exemption indicates that the Division intended to exempt all companions. As in the ordinary sense, in the wage-and-hour sense, companions have a close personal connection with the persons receiving their services. So do casual babysitters. Unlike professional babysitters, casual babysitters are often friends, neighbors, or relatives of the family. Domestic employees also have a close personal connection with the individuals they serve because, by definition, they “must” work “in or about the private home of the employer.” Id. at 7406 (language formerly codified at
By contrast, we would subvert that intent by reading the household modifier as applying to “companions.” Under that view, the companionship exemption would be underinclusive—not reaching all companions that we may reasonably infer that the Division intended to reach. Specifically, it would not reach otherwise-eligible companions who have the requisite close personal connection with the individuals whom they serve simply because those companions are employed by third-party employers. And, evincing this subversion of the Division‘s inferred intent, there would be significant space created by this reading of the scope of the household modifier between the acquired meaning of the term “companion” in the wage-and-hour context—which applies irrespective of the identity of the employer—and the meaning purportedly adopted by the Wage Order‘s companionship exemption.
Therefore, the term “companion” of the companionship exemption is best read as not including the household modifier. Put another way, in effectuating the Division‘s intent, the term “companion” is best read as including all companions who categorically have the requisite close personal connection with the people whom they serve—even companions employed by third-party employers.
***
In sum, the companionship exemption is ambiguous. One plausible reading is that the exemption applies to all companions. Or it could be read as applying to only those companions “employed by households or family members to perform duties in private residences.” Nonetheless, we conclude that the ordinary and particular meanings of “companions,” “casual babysitters,” and “domestic employees” suggest that the Division intended the former reading. That suggestion, however, is not so strong as to make the Division‘s intent “clear.” Specialty, 231 P.3d at 397. Consequently, we may “look to other aids in construction” to pin down the proper scope of the companionship exemption. Id.
C
Those other aids in construсtion confirm what the ordinary and particular meanings suggest: the companionship exemption applies to all companions. Two interpretive aids—the presumption that agency actions are valid, and the surplusage canon—are instructive. Each counsels in favor of reading the companionship exemption as applying to all companions. Although it is true, as the district court emphasized, that the series-qualifier canon points in the other direction, that canon cannot bear the interpretive weight that the district court put on it. As a result, we agree with Maxim that the companionship exemption applies to all companions—in particular, a third-party employer such as Maxim.
1
In Colorado, “agencies are legally bound to comply strictly with their enabling statutes.” Schlapp ex rel. Schlapp v. Colo. Dep‘t of Health Care Policy & Fin., 284 P.3d 177, 182 (Colo. App. 2012) (quoting Adams v. Colo. Dep‘t of Social Servs., 824 P.2d 83, 86 (Colo. App. 1991)); accord Maul v. State Bd. of Dental Exam‘rs, 668 P.2d 933, 937 (Colo. 1983). A regulation that goes beyond the authority conferred by its enabling statute is void. See
The enabling statute herе authorizes the Division to issue wage orders setting the “conditions and rules” for overtime pay.
In a similar way, Ms. Jordan‘s (and the district court‘s) interpretation of the companionship exemption violates the enabling statute. Under her reading of it, the companionship exemption requires third-party employers to pay their companions overtime wages, while it simultaneously exempts “households or family members” who employ companions to perform like duties. In short, her interpretation runs afoul of the enabling statute because it treats employers in the same occupation or industry (i.e, companionship services) unequally. In other words, by virtue of its unequal application to employers of companions, Ms. Jordan‘s interpretation essentially renders the term “companion” void by operation of the enabling statute. And Ms. Jordan does not even try to reconcile this conflict with the enabling statute. Thus, her reading of the companionship exemption is one to eschew. Under Colorado law, we should instead adopt a reasonable interpretation that better harmonizes the companionship exemption with the enabling statute, and Maxim provides such a reasonable interpretation—specifically, one that interprets the companionship exemption as applying to all companions, irrespective of the identity of their employer.
To be sure, even under Maxim‘s construction of the companionship exemption, there is space for some conflict with the enabling stаtute. As noted supra, that statute commands that overtime rules “shall apply equally to all employers in [a given] industry or occupation.” Id. And the companionship exemption exempts three types of employees—“companions,” “casual babysitters,” and “domestic employees“—from the overtime-pay requirement. Were we to adopt Maxim‘s reading, the companionship exemption only would apply evenly to employers of two of the three employee types—“companions” and “casual babysitters“—but not to the third type, “domestic
But this unequal application of the companionship exemption to employers of domestic employees—which creates a basis for conflict with the enabling statute—is reasonably viewed as simply a function of the Division‘s inclusion of the household modifier in the companionship exemption in the first place, rather than as a result of any misstep on Maxim‘s end in interpreting the companionship exemption. Stated differently, the household modifier is, by its plain terms, restrictive; its language is limited to one subset of employers, and one subset of employers only: “households or family members” who employ workers “to perform duties in private residences.” And, givеn the Division‘s inclusion of the household modifier in the companionship exemption—if courts are to remain faithful to the interpretive principles of Colorado law, which require, to the extent possible, that all the terms of the agency‘s regulations be given effect (as we discuss further infra)—then the operative question is not whether the household modifier‘s restriction applies at all to the employers that the companionship exemption implicates but rather to which of those employers does the modifier apply. And that question necessarily requires that we consider, as we do here, which of those classes of employers may be subjected to unequal treatment by the application of the household modifier to them, such that this application may engender a conflict with the enabling statute.
And even if Maxim‘s interpretation of the companionship exemption does allow for some conflict with the enabling statute by restricting the application of the household modifier solely to domestic employees, its interpretation would nevertheless allow for less of a restriction—and thus present less of a conflict—than would Ms. Jordan‘s reading. Under Ms. Jordan‘s reading of the companionship exemption, the household modifier would apply to employers of all three types of employees that the exemption covers. And because this could at least arguably result in unequal treatment of employers of all three employee types—viz., treatment that excludes third-party employers of all three from being able to invoke the exemption—the extent of the exemption‘s possible conflict with the enabling statute would be greater under Ms. Jordan‘s reading. The upshot of this is that under Ms. Jordan‘s reading, all three employee classifications could possibly be rendered void because her reading allows for unequal treatment of their respective employers. Under Mаxim‘s interpretation, by contrast, only one employee classification, domestic employees, could possibly suffer this fate.12 And
To be clear, our purpose here is not to opine on whether any portion of the companionship exemption should be deemed void under Colorado law, and we offer no opinion on that matter.13 Rather, our aim is to determine which interpretation of the ambiguous companionship exemption under the circumstance of this case is the best one. And, as between Maxim‘s interpretation, which could possibly result in one employee classification of the exemption being declared void, and Ms. Jordan‘s, which could possibly result in all of the employee classifications being declared void, we believe Maxim‘s interpretation is the better one.
2
Another interpretive tool—the surplusage canon—makes our decision to adopt Maxim‘s interpretation that much easier. In Colorado, courts “disfavor constructions that render [regulatory] language superfluous.” Kinder Morgan CO2 Co. v. Montezuma Cty. Bd. of Comm‘rs, 396 P.3d 657, 667 (Colo. 2017). Applying this canon, the district court concluded that Maxim‘s reading renders the “and” in “companions, casual babysitters, and domestic employees” superfluous. On appeal, Maxim turns the surplusage canon against the district court and argues that its interpretation makes “companions” and “casual babysitters” redundant. We think Maxim‘s argument carries the day.14
However, even if Maxim‘s interpretation does create an unnecessary “and,” it gives us no cause for concern.15 Above all else, our job “is to ‘give effect to14 the intent of the enacting body.‘” Richter, 796 F.3d at 1185 (quoting Benuishis, 195 P.3d at 1145). The Division does not appear to have been “concerned about redundant conjunctive language.” Aplt.‘s Opening Br. at 31. Had it been, it would have drafted section 5 as “a single long list of exempt employees and occupations, with a single ‘and’ at the end.” Id. But it did not do so. Instead, the Division used seven “ands“—at least four of which would be unnecessary in one long list. See, e.g.,
By contrast, surplusage stemming from Ms. Jordan‘s reading is cause for concern.
Accordingly, the surplusage canon favors Maxim‘s reading. Even if that reading renders the “and” before “domestic employees” superfluous, we much prefer an extra “and” to the meaningless presence in the companionship exemption of the terms “companions” and “casual babysitters“—especially when the former of those two terms is the exact one at issue here. Thus, as with our enabling-statute analysis, we conclude that the surplusage canon militates in favor of interpreting the companionship exemption as applying to all companions—including those employed by third-party employers, like Maxim.
3
A centerpiece of the district court‘s contrary interpretation of the companionship exemption, however, was the series-qualifier canon. That canon teaches that “[w]hen a referential or qualifying clause follows several words or phases and is applicable as much to the first word or phrase as to the others in the list, . . . the clause should be applied to all of the words or phrases that preceded it.” Aplt.‘s App. at 289 (omission in original) (quoting Kennett, 135 F. Supp. 3d at 1241). Without explanation, the district court thought “the household qualifier [] equally applicable to the antecedents ‘companions’ and ‘casual babysitters’ as it [was] to ‘domestic employees.‘”
In our view, the district court should have declined to apply the series-qualifier canon here. “Perhaps more than most of the othеr canons, this one is highly sensitive to context.” SCALIA & GARNER, supra, at 150. “Often the sense of the matter prevails” over the meaning the series-qualifier canon suggests. Id. “He went forth and wept bitterly,” for example, “does not suggest that he went forth bitterly.” Id. Similarly, the series-qualifier canon, “perhaps more than most [canons] . . . [,] is subject to defeasance by other canons“—that is, it is perhaps more prone than most to have its effect nullified by other canons. Id. At bottom, “like all canons of construction, [the series-qualifier canon] is merely an interpretive aid, not an absolute rule.” Benefield, 329 P.3d at 267. Its utility depends on “context and consideration of other, and often conflicting, interpretive aids.” Id.
In our view, the context is not suitable for application of the series-qualifier canon and, accordingly, the district court should have declined to apply it. Remember, the ordinary and particular meanings of the terms suggest that the Division intended the companionship exemption to apply to those household workers who have a close personal connection to the recipients of their services. Application of the series-qualifier canon would undermine that intent by rendering the companionship exemption underinclusive: it would not cover companions employed by third-party employers—even though those companions have the requisite close personal connection with those they serve and, consequently, are the type of household workers that the Division intended to cover under the companionship exemption. The aptness of the series-qualifier canon in this context is further undermined by the other canons of construction. Most notably, using the series-qualifier canon here creates conflict with the enabling statute, which expressly requires that any overtime requirements for particular categories of employees “apply equally to all employers in such industry or occupation.”
Lockhart v. United States nicely illustrates the perils of blind allegiance to the series-qualifier canon.16 At issue there was
In reaching that holding, the Court offered three reasons that the series-qualifier canon could not “bear the weight that either Lockhart or the dissent” attributed to it. Id. at 965. First, applying that canon “would risk running headlong into the rule against superfluity.” Id. at 965–66. If the phrase “involving a minor or ward” were to modify not just “abusive sexual conduct,” but “aggravated sexual abuse” and “sexual abuse” as well, the Court explained, those latter two terms would become “hopelessly redundant.” Id. at 965. Applying the modifier to only “abusive sexual conduct,” by contrast, “preserve[d] some distinction between the categories.” Id. at 966. The Court recognized that its preferred reading did “not eliminate all superfluity,” but the series-qualifier canon created even more surplusage, which counseled against applying it. See id.
Second, the Court declined to follow the series-qualifier canon because of the strong “parallel” between three other sections of the Federal Criminal Code—which applied the phrase “involving a minor or ward” to only the antecedent “abusive sexual conduct“—and the instant section of the Federal Criminal Code. In particular, the Court noted that those three other sections—entitled, respectively, “Aggravated sexual abuse,” “Sexual abuse,” and “Sexual abuse of a minor or ward“—“mirror[ed] precisely” the “structure and language” of the section‘s text at issue here: “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Id. at 964. With this fact in mind, the Court “doubt[ed]” that if “Congress had intended to limit” the terms “aggravated sexual abuse” and “sexual abuse” “to conduct ‘involving a minor or ward,‘” that it would have “so closely [followed] the structure and language” of those other sections of the Code. Id.
Third, the Supreme Court considered the last-antecedent canon a better fit. That canon “provides that ‘a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.‘” Id. at 962 (alteration in original) (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)). According to the Court, following the last-antecedent canon made more sense because the provision did “not contain items that readers are used to seeing listed together or a concluding modifier that readers are accustomed to applying to each of them.” Id. at 963. But at bottom, the Court reminded the parties that whether a modifier applies to each word in a list or only to the last word is a “fundamentally contextual question[].” Id. at 965. And the last-antecedent canon was just another piece of the context that convinced the Court that the modifier applied only to the last word in the list.
That said, Lockhart‘s third lesson—the last-antecedent canon—is one we cannot embrace. The Colorado General Assembly has “declare[d]” that the last-antecedent canon “has not been adopted by the general assembly and does not create any presumption of statutory intent.”
Maxim begs to differ. It argues that the anti-last-antecedent statute does not apply here because this case involves “interpret[ing] a regulation adopted by the Division of Labor, not a statute adopted by the General Assembly.” Aplt.‘s Opening Br. at 36. For support, Maxim cites a Colorado case applying the forbidden last-antecedent canon to interpret a contract. See id. (citing Chandler-McPhail v. Duffey, 194 P.3d 434, 440–41 (Colo. App. 2008)).
But beyond splitting hairs, Maxim‘s argument is misguided. For starters, Maxim concedes that the same “basic rules of interpretation which pertain to the construction of a statute” also apply to regulations like the Wage Order. Aplt.‘s Opening Br. at 26 (quoting Richter, 796 F.3d at 1185). Thus, if the General Assembly has removed the last-antecedent rule from the statutory-interpretation toolbox, as it has, that rule can no longer be used to interpret regulations either. And Maxim‘s invocation of Duffey does not alter the analysis. The court there overlooked the anti-last-antecedent statute because the meaning of a contract between private parties turns on “the intent of the contracting parties.” 194 P.3d at 441. By contrast, the meaning of a regulation turns on the promulgating agency‘s intent, which is, in effect, an extension of the General Assembly‘s will. That is why Colorado courts must “set aside [an] agency action” if it exceeds “statutory authority.”
Even without the last-antecedent canon at our disposal, for the reasons already discussed, the series-qualifier canon is not a good fit in this context. Furthermore, People v. Weeks, 369 P.3d 699 (Colo. App. 2015), a case that Maxim cites, does not lead us to a different view. The statute there defined “child abuse” as “a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury
People v. Trujillo, 251 P.3d 477 (Colo. App. 2010) did the same. The statute there rendered certain statements made “by a child” admissible in “proceedings in which a child is a victim of an unlawful sexual offense . . . or is a victim of incest . . . when the victim was less than fifteen years of age at the time of the commission of the offense.” Id. at 479 (quoting
Trujillo and Weeks teach that Colorado courts are free—and, thus, so are we—to eschew the series-qualifier canon and instead follow the context and other canons. As explained above, the context and other canons militate in favor of reading the household modifier as applying only to “domestic employees.” We therefore decline to apply the series-qualifier canon to the companionship exemption.
A comparison between our case and the two cases the district court cited in support of applying the series-qualifier canon reinforces our decision to eschew that canon. Take Estate of David v. Snelson, 776 P.2d 813 (Colo. 1989). At issue in that case was whether two adopted children could inherit from their natural father‘s estate. The governing statute there provided that adopted children could inherit from their natural parents “except to the extent that inheritance rights have been divested by a final order of relinquishment, a final decree of adoption, or an order terminating the parent-child relationship under the laws of this state or of any other jurisdiction.” Id. at 816 (quoting
The long and short of it is this: while the series-qualifier canon did figure into the parties’ arguments and the Snelson court‘s analysis, it was hardly pivotal. Indeed, we note that there is no indication in Snelson‘s text that the parties “focused on” the modifier “under the laws of this state or any other jurisdiction” and argued against the application of the series-qualifier canon. See id. at 816 n.2. Here, by contrast, Ms. Jordan hangs her hat on this canon (despite offering no defense of why its application would be proper here), while Maxim vigorously argues against it. And yet another point of distinction is that in Snelson, the court‘s discussion centered in substantial part around the surplusage canon. And under that canon, it concluded that construing the modifying phrase at issue to apply to all of the phrases in the series, as opposed to only the phrase immediately preceding that modifier, would avoid considerable surplusage. See id. at 818–19. Doing so here, on the other hand, for reasons explicated supra, would create surplusage. Accordingly, unlike the district court, we do not view the circumstances here as providing an appropriate context for the application of the series-qualifier canon.
People ex rel. M.W., 796 P.2d 66 (Colo. App. 1990) likewise fails to convince us to follow the series-qualifier canon. The statute there required a guardian ad litem to “examine and cross-examine witnesses in both adjudicatory and dispositional hearings, introduce and examine his own witnessеs, make recommendations to the court concerning the child‘s welfare, appeal matters to the court of appeals . . . , and participate further in the proceedings to the degree necessary to adequately represent the child.” Id. at 68 (emphasis added) (quoting
Again, the court‘s application of the series-qualifier canon in M.W. made sense. To have eschewed the canon would have yielded odd results. Indeed, if the court were to have applied the modifier only to the instruction for guardians ad litem to “participate further in the proceedings,” then a guardian ad litem would always have had to “appeal matters to the court of appeals“—even if the guardian thought doing so was contrary to the child‘s best interest. Id. at 68. No such odd results arise here from reading the household modifier to apply only to “domestic employees.” Put simply, the mere fact that M.W. applied the series-qualifier canon there does not justify applying it under the distinct circumstances of this case.
No doubt under a purely mechanical application of the series-qualifier canon, the household modifier would apply to “companions.” But again, this canon “is highly sensitive to context.” SCALIA & GARNER, supra, at 150. And the context here makes plain that the Division intended thе companionship exemption to apply to all companions—including those employed by third-party employers.
***
The foregoing analysis is sufficient to resolve this case. It imparts that the companionship exemption is ambiguous but that the ordinary and particular meanings of “companions,” “casual babysitters,” and “domestic employees,” along with other tools of construction, compel the conclusion that the companionship exemption applies to all companions—irrespective of whether their employers are households or family members on the one hand, or third-party companies, like Maxim, on the other. But we find persuasive support for our conclusion in the Division‘s longstanding and consistent interpretation of the companionship exemption. An examination of that interpretation therefore follows.
D
Explaining how and why we find the Division‘s interpretation persuasive is a three-step process. In step one, we recount how the Division has interpreted the companionship exemption. In step two, we decline to decide whether any formal deference attaches to the Division‘s interpretation; instead, we conclude that we may treat that interpretation as at least persuasive authority. In step three, we explain why we find that interpretation persuasive.
1
The Division has, as is relevant here, interpreted the companionship exemption in two sources: (1) two substantively identical opinion letters to Maxim, and (2) two administrative proceedings. In both sources, the Division confirmed that the companionship exemption applies to companions employed by third-party employers.
We start with the opinion letters to Maxim. In both letters, the Division stated its “position . . . that the treatment and interpretation of the companions exemption in the Wage Order w[ere] intended to mirror the companions definition and associated regulations contained in federal
The two administrative proceedings, which were instituted in 2012 and 2014, put the interpretation announced in the opinion letters into practice. In the 2012 proceeding, a “companion” claimed that Maxim owed the employee overtime wages. Id. at 539–40. The Division denied that claim. In doing so, it reiterated that Colorado‘s companionship exemption was “intended to mimic federal law,” which at the time provided that the exemption applied to companions working for third-party employers. Id. at 541. Thus, the Division concluded that it lacked “the authority to pursue th[e] matter further under Colorado law.” Id. Put differently, the Division determined that the Maxim companion was exempt from overtime wages under Colorado law.
The Division stuck to its longstanding interpretation in the 2014 administrative proceeding. Again, a Maxim employee filed a complaint with the Division. This time, though, the employee explicitly argued that the companionship exemption applied to only those companions “employed directly by households,” not to those employed by third-party employers such as Maxim. Id. at 544. The Division rejected that argument and reaffirmed that “the companions exemption in the Wage Order [was] intended to mirror the current definition and associated regulations in federal law.” Id. at 546. Therefore, once again, the Division dismissed the complaint for lack of “statutory authority to pursue th[e] matter further.” Id.
The bottom line is this: since 1998, the Division has consistently interpreted the companionship exemption as applying to companions employed by third-party employers. The Division has reiterated this longstanding interpretation in at least two opinion letters. And it has put its interpretation to work in at least two administrative proceedings. Simply put, the Division‘s words and actions confirm that it intended the companionship exemption to apply to companions employed by third-party employers.
2
On appeal, the parties quarrel over whether we must defer to the Division‘s longstanding interpretation. Maxim thinks so. It claims that under Colorado law, the Division‘s interpretation “easily merits deference,” as it is neither “‘plainly erroneous [n]or inconsistent with’ the Wage Orders’ text.” Aplt.‘s Opening Br. at 43–44 (quoting Schneider v. Indus. Comm‘n, 624 P.2d 371, 373 (Colo. App. 1981)). Ms. Jordan disagrees. She argues that deference is inappropriate here because the Division‘s interpretation contradicts the companionship exemption‘s “plain language.” Aplee.‘s Resp. Br. at 17.
We need not decide whether any deference attaches to the Division‘s interpretation17
3
We find the Division‘s interpretation persuasive. As explained above, the companionship exemption is ambiguous: one could read it as applying to all cоmpanions, or as applying to only those companions employed by households or family members. Both readings are reasonable and consistent with Colorado public policy. That said, ever since 1998, the Division has consistently and repeatedly adopted the former reading. It made that point clear in the two opinion letters, and it put that interpretation into practice in the two administrative proceedings. The Division‘s unbroken, oft-expressed position is potent evidence that it intended the companionship exemption to apply to companions employed by third-party employers.
The district court disagreed. It was unpersuaded by the Division‘s interpretation, as expressed in its opinion letters. As noted supra, in those letters, the Division explained that its interpretation of the Wage Order‘s companionship exemption as extending to companions employed by third-party employers “was intended to mirror” the corresponding federal “companions definition and associated regulations” promulgated by the U.S. Department of Labor under the FLSA, which likewise extended the exemption to companions employed by third-party employers. Id. at 189–90, 192–93. The district
In our view, however, the district court‘s reasons for ignoring the opinion letters are mistaken. For one, the CWA does not have a companionship exemption. See
We also do not agree with the district court‘s reliance in its analysis on the disclaimers included in the Division‘s respective letters. It is true that both letters include nearly identical disclaimers,19 which as noted supra read in relevant part as follows: “The position of the Division may . . . change over time. This position is
In short, we find the Division‘s longstanding and consistent interpretation of the companionship exemption as applying to companions employed by third-party employers рersuasive. This persuasive authority gives us greater confidence in our conclusion—reached through our analysis of the ordinary and particular meanings of the relevant terms and application of other aids of construction—that Maxim‘s reading of the companionship exemption is the superior one. We therefore hold that the companionship exemption applies to companions employed by third-party employers.
IV
To conclude, as companions employed by a third-party employer, Ms. Jordan and her fellow class members fall within the companionship exemption. As a result, they are not entitled to overtime wages under Colorado law. For that reason, we REVERSE the district court‘s final judgment, VACATE the award of $2,015,253.42 in overtime wages and $691,474.20 in prejudgment interest, and REMAND the case to the district court with instructions to enter judgment in Maxim‘s favor.