A recent 10th Circuit case held that home care workers in Colorado were exempt from overtime. Theresa Jordan was instrumental in bringing a class action claim against a home care staffing company, alleging that she and other home health workers were not paid overtime and were due $2.7 million. A Colorado district court agreed, but on appeal to the federal district court, the decision was reversed in Jordan v. Maxim Healthcare Services, Inc., (10th Cir. 2020).
Looking at Colorado law and the Colorado Department of Labor and Employment interpretations, the Tenth Circuit Court of Appeals found it to be clear that if a domestic companion was exempt from overtime, it did not matter that the domestic companion was hired by a third party and not by a household or family member. In other words, the fact that the person wanting the care – such as when a parent hires a local babysitter – did not hire the companion doesn’t matter when determining exemption from overtime.
While the decision stops the employees who sued from getting back wages, the new order effectively renders it moot going forward. The new COMPS Order #36, which takes effect March 16, 2020, at section 2.2.7, states that “casual babysitters employed in private residences directly by households, or directly by family members of the individual(s) receiving care from the babysitter” are exempt. It is very specific in outlining who must pay for the service in order for the worker to be exempt.
In other words, the fact that the person wanting the care – such as when a parent hires a local babysitter – did not hire the companion DID NOT matter when determining exemption from overtime.