good morning your honors and may it please the court i'm david salman's on behalf of appellant maxim health care services in this case concerns regulations issued each year by the colorado division of labor known as minimum wage orders these orders define the categories of employees an industry that are exempt from colorado's overtime pay requirement one of those exceptions is for companions which are home health workers that assist physically impaired clients with everyday tasks such as bathing and getting dressed for decades the division of labor has consistently and authoritatively construed the wage orders to exempt all employees that perform companion work whether employed directly by the households or by third parties it has announced its interpretation through final agency proceedings and through opinion letters including to maxim which specifically sought of pain and relied upon the division's guidance in this case and it has reissued wage orders every year with the same language and with the intent that all companions be exempt from overtime regardless of the identity of the of their employer now the district court below committed several legal errors in rejecting the division's longstanding interpretation of its own regulation and its decision should be referred if we were reversed the first era i'd like to focus on is sort of a threshold issue and it has to do with this court's decision in u s versus richter which we submit provides the rule of construction for this case in ritter judge mchugh's decision for the court makes clear that when courts applying colorado law construe a state regulation such as the wage orders they must apply the same basic principles that govern statutory construction that means quote the primary goal of interpretation is to give effect to the intent of the enacting body and here that body is the division of labor but rather than ask the straightforward question of whether the division intended the companion exception to apply to all companions the district court imposed a heightened burden limiting the exception only to those employees that it concludes plainly and must unmistakably qualify for it but no heightened burden is appropriate the supreme court made that clear recently in a so you know more motor cars and in any event it would be clearly satisfied where it's here the division has authoritatively construed its own regulation to apply any other conclusion is inconsistent with richter's requirement that we focus on how the division intended the exception to apply since the there's really no meaningful doubt about the divisions intent here well to determine what the divisions intent is we start with the plain language of the wage order absolutely  and takes us right into the question of whether the modifying clause and to prefer if employed by households or family members to perform duties the what the court below said is that construing that language the phrase again applies here for companions which doesn't have any qualification just as companions casual babysitter so babysitters has a qualifier which is casual and domestic employees and then it says employed by household or family members or perform duties in private residences so the question is do you carry the series qualifier kana the other obvious can and is the rule of last into c didn't which the supreme court recently in the lockhart case sort of gave preeminence over the series qualifier question as a general matter but but what do we do that the fact that the colorado assembly has said they they don't recognize that well i think that's actually not what the colorado assembly has said your honor what what the statute you're referring to in this is colorado revised that you two dash for dash to fourteen does is it it makes reference to a specific colorado supreme court decision that in a criminal case essentially adopted a rule that you always had to apply the rule of the last in a seat and and what the legislature said is that the general assembly here by fines and declares that the rule of statutory construction expressed in that case people versus macpherson i'm sorry i lost my spot here  has not been adopted by the general assembly and does not create any presumption of statutory intent so it's not saying you can't apply it and we on pages thirty six and thirty seven of our opening brief cite to several colorado appellate cases that continue to apply the rule of last antecedent hasn't ceased to be a textual can and even in colorado it just says you can't just automatically assume that that's what's in to it it requires courts to do what they should always do which is look at the context and decide which canon is the best to apply and that's the way colorado courts have interpreted that provision and when you do that here we think the answer is actually clear that the divisions interpretation is the best interpretation but i would just note before i start walking through the reasons why that we only have to show it's a plausible one to win this case and require reversal because of the requirement for deference to an agency's interpretation of  is in fact we have and weeks we cite to these we have at least two formal adjudications or enforcement proceedings where the fact it was back subs employees that initiated those with the division and they were rejected enforcement proceedings we have the letters in response to your client's requests for interpretation but it's not the sort of the garden variety situation where we have a regulation or some type of formal policy well i think it's important here to keep in mind your honor that the governing statute the colorado statute that sets all of this up is for as we're used to seeing in federal law that provide discretion to an agency is a bit unusual what it says is that over time at a rate of one and one half times the regular rate of pay may be permitted by the director of the division of labor under conditions and to promulgating wage orders wrecked and then it has this directive which is which shall apply equally to all employers in such industry or occupation so the only real limitation is there directing the division of labor that with single category of employee or occupation that you not discriminate among employers with regard to the overtime or minimum wage requirement and so is there any way to interpret the language that we are focused on this exception so that it doesn't conflict with the enabling statute yes yes your honor the way is to follow the division's own interpretation which is consistent with the enabling statute in other words that would still wouldn't treat differently people that the qualifier does apply to which would be domestic employees a with regard to domestic again let me try to march this out is normally when we have some confusion and you have two possible interpretations of the regulation and one of them conflicts with the language of the statute and the other is consistent with the language of the statutes pretty easy because we're going to go with the one that doesn't conflict here either interpretation violates the clause you just read about not treating and people differently that they all have to be treated the same in the same classification so i think that's incorrect your honor and i'd make two points about it the first is that that that category of domestic employees is not a single category of employee or occupation it is an amalgam it is a catchall it includes cooks and gardeners and governesses and all others and we see we see this both in the federal scheme and in the state one through its guidance and other interpretations that the a g s provided and so what it doesn't violate the rule of a statute which is among a single category of  industry or occupation you have to treat employers the same but what if i have i have a cook who cooks outside the home and delivers my food and i have a cook who lives with me i wish and cooks every meal every day they're both cooks but one is in the household and one isn't so in that instance you'd have a category of employment that would be treated differently under th the way i would put it your honor is that what you have is a sort of catch all of a variety of types of employees or industries where because of their connection to the household they are provided  different rule with regard to overtime than others in those various categories but you don't have a single set of employment occupation defined that then you treat employers differently based on that but i would just  second point your honor that even if you think you can't perfectly interpret this regulation to fully comply with that mandate i would think that you would still if you if their specially there's any ambiguity in the in the written wage order here you would construe it so as to the maximum extent possible to be consistent with the governing statute as opposed to just throw it out the window if you find that four in a category that's not even you in this case that the agency may not have fully implemented that well that the second point i think that's really a third point i think is really important to keep in mind here is that the agency did not create these categories out of whole cloth and this court has recognized several other courts have recognized this what it what what the state agency did here was it women looked at the categories of exemptions provided in section two thirteen of the f l s say and and among those in that section by the way is enumerated lots of sub parts and it breaks down a whole host of exceptions and in two thirteen a fifteen there's a category for employee any employee employed on a casual basis in domestic service employment to provide babysitting services and any employee employed in domestic service employment to provide companionship services and then there's an entirely separate section two thirteen be twenty one which refers to any employee who is employed  domestic service in a household and who resides in such household so under the federal scheme there is a category for companions it has no qualifier there is a category for babysitters which has a casual basis qualifier and there is a category for domestic employees which has a household qualifier although a slightly different one than then the division adopted here which was reside in the household as opposed to being employed directly by the household but that's the structure and when an agency state adopts that from federal law the general presumption is they're carrying those meanings over and that's exactly what the divisions interpretation has required we had like you said something about the category you can't you can't discriminate among persons or end entities within a category are we are we talking about treating employers the same or treating employee yes that's what the statute says i'd like to reserve the remainder of my time my name is bob derechos and i represent the apple ollie's in this case mr jordan over one thousand colorado ones who are employed his companions with the appellant who's a third party provider of home health care services it's important to note that this case began in the state district court of el paso county in colorado springs alleging class violations of the colorado wage act more specifically violations of the colorado minimum wage orders it's also very important to note that the impelling moved this case to the federal district court under cafe because a maryland corporation employed coloradoans in the state of colorado work them more than forty hours a week more than summonses more than twelve hours a day and did not pay overtime s prescribed by the colorado minimum wage or it is important to know why the employer has bent over backwards to remove itself to federal jurisdiction is because their arguments from the inception from the motion to dismiss that was  the cross motion for summary judgment which was denied on their behalf to the briefs that were before this court here today the insist on applying federal law as this court has said in sala deciding how to do these wait or statute i mean regulations are you talking about when the craft is the minimum wage order when they did their opinions when they did vote i mean there are they look to i mean colorado did is what states are free to do they look at the fair labor standards act and say this is what minimum requirement to firm federal government gives us but the colorado legislature said for colorado ones we're going to do more but the bottom line is it's always going to be relevant so i mean this whole notion that somehow or other there's some big change that takes place by bring it to federal court if they were in state court unless a state court wasn't trying to reach right result they would be looking at the federal guidance as well to try to make sense out of this right it cept that if you take a look at the problems argument one they cite in see no motor cars with a barn that they have to meet and not chase versus farmers insurance exchange which says the burden is on the on the defendant which is a higher burn in state level than the federal what is what is at the chase versus farmers insurance exchange approach bears the burden to demonstrate th employee is plainly and unmistakably entitled to the is fits within the exemption and did you ever press in your brief anywhere that they needed to apply that standard we do in our brief indicate that that the court followed the correctly followed the state law i don't think you answered my question i don't think anywhere in your brief did you say that called them on their attempt to apply not the plainly unmistakable standard in my ro i don't think there's any where he said no no no you can't apply this is that you got apply this higher standard from colorado you didn't do that did you specifically as if you're saying you're on a no we didn't congress we don't have that and what are we talking about that then what we're well then i'll get right to the point when i'm knocking about is that the state that state statutory interpretation of the section five of the minimum wage order and in that section you have three occupations that fit within the group of coverage known as the health and medical industry the colorado state law requires that regulations and statutes be given their plain meaning and only when the plain meaning is in big u s that you go to legislative history or you go to any of the can is a construction what we have here is three groups of occupations that could either be employed by households or family members or by third party so you're saying the regulation here is is appellant was arguing the last aniseed an rule and the judge was countering the the fact that even if you could look at the last aniseed rule that you still look at the can textual  brief was to use the last aniseed rule because it suits their purpose well which is the same reason you want the series qualified and yeah i mean really the law you know what you have when you come to  if you take a look at the partment of labor's own website indicates that the colorado exception for companions is narrower than the federal one because it doesn't have the general household provision and the eighty twenty rule in the federal rule also has a specific exclusion up until october of two thousand and fifteen for third party providers the appellant wants to juxtapose the federal requirement on to the state statute that does not exist there and if you just look at the plain language of section five it tells you the three occupations when the health and excusing it within the health industry is domestic employees a discreet it is house so i mean a lot of people can be domestic employees across a whole range well it still fits within the great it can be a catch all but it still fits within the group well if it's a catch all which it would support the argument that a catchall needs to be qualified it also takes a look at just because you have the inside but there discreet occupations domestic employees is not a discreet occupation it's not a discreet occupation but what we're saying is is that colorado and acting it's wage order to took a look at three groups of occupations that work inside the home that fit within the health and medical industry which is one of one of the coverage groups and said we are going to extend an exemption only to household or family member employers but not to third party providers now appellant argues that that is not equal treatment under the the other section of the of the minimum wage or we argue that they're reading too narrow an idea of the of the equal application the equal application is that all third party providers of of employees for these occupations are treated the same and are not entitled to the exemption because you also have to read it my way i'm i'm not following you so for a companion the way the statute is written that is that employers of companions have to be treated the same in terms of what they have to pay so if i hire a complete in to take care of my father in law in my home i should get the same rule that applies to me then if that companion is provided through someone like maxim here not under the colorado man which you in the person the one you describe you get exemption because your household or for me or family a third party but how does that not by late the requirement in the enabling statute that the employers of the single profession the single job companions be treated the same well it the statute says that employers have to be treated the same it doesn't say that the statue couldn't make categories of employers meaning that because maxim was a maryland corporation that came into colorado to provide the services they have to be treated the same as a colorado corporation that hired  and employed third party people that's where the equal nature because you have to read this in connection with the idea that the that the colorado statute is trying to expand coverage for individuals and that is the purpose and effect of the minimum wage order to read it the way maxim wants to read it it is it is trying to find a solution that narrows the coverage colorado could very well have just said have corporate the federal statute in toto but they did many stack states do i from ohio that's exactly how it's written in ohio they just incorporate the federal statute in colorado colorado legislature and hearing to the first section of the minimum wage order said that we're going to give more protection i e we are going to only provide the exemption for household or familial employers but not the employers or third party providers and that is not even in its the law which provides a higher minimum wage or set of higher standard supplies and then you look to the bulletin twenty nine i that interprets that section it says employees can be covered by the colorado and federal wage law the federal or colorado wage law or neither and corrupt colorado is or could be subject to both and it says when instances it could be covered by both you have to pick the law that gives the greater coverage or protection that's to be implied ok of the net and i agree with that i understand that now show me the language you rely on to tell me that colorado insists that  unions have to do not fall within the exception if they're employed by a third party company like maxim because i heard earlier today sometimes silence can speak volumes and in this case when when when colorado was setting out what its parameters were going to be it did not list third party providers like the federal statute did there is a federal reg that actually identifies third party providers as part of an exemption colorado chose not to do that what do we do with the ongoing interpretation that's been given to the wage order by the department of labor in colorado does that matter at all we get it no deference well you give the you give the the minimum wage or deference not the agency interpretation that got it wrong and why not i mean you certainly do that in the federal system our difference i think is what they call it why wouldn't you the agency that's responsible for administering this regulation  wrote the regulation doesn't know what it means well if you take a look at its own letter it basically says this is not before the fact that law and attorney may differ and a jute a court may differ from our interpretation of course that doesn't mean well that means is we're not going to accept it and it's not this positive but that doesn't mean that it is not something that we would look at and give deference even under the colorado ministry of procedures act it twenty four for one of the six seven running on time to get this out here that says a court show hold on lawful and set aside any agency action that is contrary to our arbitrary or capricious and what the lower court found correctly was is that the direct measurement the director in the letters that you provided did not interpret didn't go through and now says i didn't do any investigation its charge and basically rendered a belief as an actual potent its belief that it was identical to the federal statute and we showed instances in our briefing where they are not the same that the that the  colorado statute is more constrictive and more narrowly construed against the employer and then the district court basically said they reject and give no deference only have a best persuasive and it was  persuaded that the the colorado minimum wage order applied to the exemption applied to third party providers thank you thank you i think your honor just a few points in rebuttal first as we point out the briefs that the district court's construction of the wage order creates significantly more superfluity problems then the divisions because instead of just having a essentially superfluous because it's not disputed that those generally fit within that amalgam catchall of domestic employees it's at the very minimum it's not that the divisions which are patient is not plainly erroneous or inconsistent with the regulation and i would note that the very cases that the district court relied on for application of the series qualifier canon the estate of david case in the people of interest of m w each of those cases even though they apply the series qualifier notes that context is very important and that the language they were interpret ing in each of those cases was subject to more than one interpretation and that's all you need to conclude to decide this case and we're verse the last point i would make is that this notion of a heightened burden in order to apply the exception if you look at the case that is you know the colorado case that adopted that chase they cite to federal that federal standard that had been adopted and say there's no reason for colorado not to do it because we generally follow the federal standards and that federal standard has since been rejected by the supreme court and so that itself is an error here that warrants reversal ok are out of time thank you