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Jordan v. Maxim Healthcare Services, Inc.

United States District Court, D. Colorado

March 29, 2018

THERESA JORDAN, individually and on behalf of the Proposed Colorado Rule 23 Class, Plaintiff,


          Kathleen M. Tafoya, United States Magistrate Judge

         This matter is before the court on “Plaintiff's Motion and Memorandum in Support of Her Motion for Partial Summary Judgment” (Pl. Mot.) [Doc. No. 103] filed August 1, 2017 and on “Defendant Maxim Healthcare Services, Inc.'s Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment” (Cross Mot.) [Doc. No. 108] which was filed on September 1, 2018. “Plaintiff's Response to Defendant's Cross-Motion for Summary Judgment and Reply to Defendant's Opposition to Plaintiff's Motion for Partial Summary Judgment” (Pl. Resp.) [Doc. No. 109] was filed on October 2, 2017 and “Defendant Maxim Healthcare Services, Inc.'s Reply in Support of Cross-Motion for Summary Judgment” (Df. Reply) [Doc. No. 111] was filed on October 20, 2017.


         The crux of this case involves unpaid overtime for employees employed by a third party agency. More specifically, Plaintiff was a certified nursing assistant employed by Defendant from February 2007 to December 2013. (Doc. No. 4 [“Comp.”] at 2). The parties agree that Plaintiff was a home health care worker (“HHCW”) who would be classified as a provider of companionship services. (Pl. Mot. at 5-6.) Defendant is a for-profit healthcare services company that provides its customers with in-home personal care and management and/or treatment of a variety of medical and non-medical conditions. (Compl. at 2.) While employed by Defendant, Plaintiff was paid on an hourly basis and was not paid overtime compensation. (Id. at 4-5.) On May 27, 2015, Plaintiff sued Defendant alleging that it failed to pay her, and the Rule 23 class of HHCWs she represents, overtime wages under Colorado's Wage Act, C.R.S. §§ 8-4-101, et seq. (“CWA”), Minimum Wage Order (“MWO”), and 7 Colo. Code Regs 1103-1, § 5 (“CCR”). Id.[1]

         To date, the case has turned on the interpretation of the CWA's companion exemption, 7 Colo. Code Regs. § 1103-1.5, which exempts certain employees providing home health care services from overtime protections. In a previous motion to dismiss under Fed.R.Civ.P. 12(b), Defendant contended that the exemption applies to Plaintiff and the potential class members. Plaintiff contended that, according to the plain language of the exemption, it applies only to companion employees that are employed by households or family members-and not those employed by third parties, such as Defendant. The court disposed of the statutory interpretation of the companion exemption on March 17, 2016. (Doc. No. 59.) That order adopted Plaintiffs preferred interpretation.

         In the parties' instant motions, however, Defendant seeks to re-litigate interpretation of the companion exemption.[2] For reasons that the court will address infra, those arguments are rejected. It is improper, at least at this juncture, that the interpretation of the companion exemption be re-litigated based on the motions before the court. The more prudent course is for this to be addressed by way of motion to re-consider (if at all). As such, the issues in play for present purposes include:

. Whether Defendant is entitled to judgment under a safe-harbor defense.
. Whether the court's interpretation of the companion exemption in Doc No. 59 should apply retroactively.
. Whether Defendant is liable for overtime wages to Plaintiff based on the court's statutory interpretation of the companion exemption in its previous order. (Doc. No. 59.)
. Whether liability is mitigated to a two-year Statute of Limitations period.

         The court largely adopts Plaintiffs preferred positions on these issues albeit with one exception: the two-year Statute of Limitations defense. The court finds this defense applicable here because any alleged overtime violations were not willful under the CWA.


         Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

         Where a court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant summary judgment.[3] Cf. Plascenia v. Taylor, 514 F. App'x 711 (10th Cir. 2013); see also McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir.1997) (allowing appellate review of a motion for summary judgment on the ground of governmental immunity because . . . the issue before the court was “purely one of law”).

         It is worth noting, as here, that Defendant indicates that the “material facts of this case are straightforward and undisputed”-making for ease of disposition as to most of the issues before the court. (Doc. No. 108 at 3.)


         There is utility in first setting out the statutory framework and addressing why re-litigation of the statutory interpretation issue in the court's March 17, 2016 opinion is inappropriate. (Doc. No. 59.)

         A. Statutory and Regulatory Framework

         For the purposes of background, the CWA does not contain a specific overtime requirement. Instead, Colorado's overtime requirements are established by the Colorado Division of Labor (“DOL”) through a regulatory enactment known as a Minimum Wage Order (“CMWO”). See Colo. Rev. Stat. §§ 8-6-104, -106, -108.5. The current version, CMWO, became effective on January 1, 2018. 7 C.C.R. § 1103-1.[4] Relevantly, 7 C.C.R. § 1103-1:4 requires that all employers provide overtime compensation to employees that work in excess of 40 hours in one work week or in excess of 12 hours in one day at a time-and-a-half rate. But 7 C.C.R. § 1103-1:5 provides certain exemptions from the CMWO's overtime requirements:

The following employees or occupations, as defined below, are exempt from all provisions of Minimum Wage Order No. 34: administrative, executive/supervisor, professional, outside sales employees, and elected officials and members of their staff. Other exemptions are: companions, casual babysitters, and domestic employees employed by households or family members to perform duties in private residences, property managers, interstate drivers, driver helpers, loaders or mechanics of motor carriers, taxi cab drivers, and bona fide volunteers. Also exempt are: students employed by sororities, fraternities, college clubs, or dormitories, and students employed in a work experience study program and employees working in laundries of charitable institutions which pay no wages to workers and inmates, or patient workers who work in institutional laundries.

Id. (emphasis provided).[5]

         In contrast to the wording of the CWA, the FLSA explicitly provided, up until its amendment on January 1, 2015, that its companionship services exemption specifically did apply to third party employers of such providers. Title 29 C.F.R. § 552.109(a) stated:

(a) Employees 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 by virtue of section 13(a)(15). Assigning such an employee to more than one household or family in the same workweek would not defeat the exemption for that workweek, provided that the services rendered during each assignment come within the definition of companionship services.

         Title 29 C.F.R. § 552.109(a) (emphasis added). In contrast, the FLSA now provides, as of January 1, 2015:

(a)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 13(a)(15) of the Act, even if the employee is jointly employed by the individual or member of the family or household using the services. However, the individual or member of the family or household, even if considered a joint employer, is still entitled to assert the exemption, if the employee meets all of the requirements of § 552.6.[6]

Id. (emphasis added). In other words, through careful and thoughtful wording, the federal lawmakers made themselves abundantly clear concerning the exemption's application in connection with companionship services when the companions were employed by third party employers rather than by households or family members directly. Colorado DOL rulemakers, however, did not take their cue from the wording of the federal Rule if mirroring the federal law was their intent. Since Colorado had guidance from a carefully worded federal rule, the inference drawn by this court is that Colorado did not intend for the CWMO to mirror the FLSA, but was instead choosing a path more protective of the individual worker by excluding third party employers from the exemption.

         B. Statutory Interpretation is Improperly Postured in ...

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