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Colorado Home Care Workers Should Receive Overtime Pay, Judge Rules

October 1, 2015

A federal judge in Colorado ruled on September 24 that home health aides employed by third parties are entitled to overtime pay under state law.

In her decision in the case Kennett v. Bayada Home Health Care, Inc., Judge Christine Arguello of the U.S. District Court for the District of Colorado ruled that, although home care workers are considered to be “companions” under Colorado law, those employed by third parties do not fall under the state’s companionship exemption.

Home care workers who are directly employed by a family or an individual are not entitled to time-and-a-half overtime pay.

Arguello’s ruling hinged largely on a grammatical interpretation of Colorado’s Minimum Wage Order (pdf), which exempts “companions, casual babysitters, and domestic employees employed by households or family members to perform duties in private residences” from receiving overtime pay.

Attorneys representing the plaintiff, home health aide Michele Kennett, argued that the phrase “employed by households or family members to perform duties in private residences” modifies all three types of workers that precede it, including companions.

Lawyers representing Bayada — a large, for-profit home care company with offices in 22 states as well as India — argued that the modifying phrase only pertains to domestic employees, the term immediately preceding it. All companions, even those working for third-party employers, should therefore be exempt from overtime pay, they argued.

In her decision, Arguello described the defendant’s interpretation as “strained.”

“The only grammatically sound reading of the statute…dictates that the household qualifier is equally applicable to the antecedents ‘companions’ and ‘casual babysitters’ as it is to ‘domestic employees,'” she wrote.

Kennett worked for Bayada from January 2012 to August 2013. She filed a class-action lawsuit against the company after being paid the same $10/hour wage for hours worked beyond 40 a week or a 12-hour day.

In August, the U.S. Court of Appeals for the District of Columbia Circuit unanimously upheld a U.S. Department of Labor (DOL) rule change extending minimum-wage and overtime protections to home care workers.

The new rule is scheduled to take effect in mid-October. DOL said it will begin enforcing the rule 30 days later.

The home care industry has filed a petition asking U.S. Chief Justice John Roberts to stay the court’s ruling.

— by Matthew Ozga

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