v. JP Trucking, Inc , 2020 COA 153 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 5, 2020
2020COA153
No. 17CA2384, Gomez v. JP Trucking, Inc. — Labor and
Industry — Wages — Colorado Minimum Wage Order — Fair
Labor Standards Act — Exemptions
A division of the court of appeals interprets the “interstate
drivers” exemption to the Colorado Wage Order’s overtime
requirements harmoniously with the federal Fair Labor Standards
Act Motor Carrier Act (MCA) exemption. The division declines to
follow the holding in Brunson v. Colorado Cab Co., 2018 COA 17,
¶ 45 (cert. granted June 18, 2018) (cert. dismissed Jan. 29, 2019),
which concluded that the interstate drivers exemption applied “only
to drivers whose work takes them across state lines.” The trial
court correctly found that the employee truck drivers were subject
to the MCA exemption, and then correctly applied the Brunson
holding pursuant to another division of this court’s remand order.
But, because the division believes Brunson was wrongly decided, it
reverses the trial court’s judgment under the Wage Order and
remands the case with directions to vacate the damages award.
COLORADO COURT OF APPEALS 2020COA153
Court of Appeals No. 17CA2384
Eagle County District Court No. 16CV30222
Honorable Russell H. Granger, Judge
Leonel Gomez, Francisco Gonzalez, Ebarardo Sanchez, and Nathan Abbott,
Plaintiffs-Appellees,
v.
JP Trucking, Inc.,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FREYRE
Dunn and Brown, JJ., concur
Announced November 5, 2020
Riley Law LLC, Kelli Riley, Greeley, Colorado, for Plaintiffs-Appellees
Hall and Evans, LLC, Meredith L. McDonald, Paul Yarbrough, Denver,
Colorado, for Defendant-Appellant
¶1 In this employment wage dispute, we are asked to address the
interplay between provisions of the Fair Labor Standards Act (FLSA)
and the Colorado Minimum Wage Order. See Colo. Minimum Wage
Order No. 31, 7 Code Colo. Regs. 1103-1 (effective Dec. 30, 2014-
Dec. 31, 2015), https://perma.cc/4DFR-69JU (hereinafter Wage
Order).1 The FLSA sets federal minimum wage and overtime
requirements for certain employees nationwide, while the Wage
Order sets the minimum wage and overtime pay requirements for
Colorado employees who work in certain industries. As relevant
here, both the FLSA and the Wage Order exempt drivers who
transport goods in interstate commerce from these requirements.
The FLSA’s Motor Carrier Act (MCA) exemption excludes an
employee who “in the performance of his duties moves goods in
interstate commerce and affects the safe operation of motor vehicles
on public highways.” Deherrera v. Decker Truck Line, Inc., 820 F.3d
1147, 1154 (10th Cir. 2016) (quoting Foxworthy v. Hiland Dairy Co.,
997 F.2d 670, 672 (10th Cir. 1993)). Similarly, the Wage Order
1 Colorado Minimum Wage Order No. 31 was in effect at the time of
the events in this case. Since then, the Colorado Department of
Labor and Employment has promulgated subsequent wage orders.
See infra note 5.
1
exempts “interstate drivers” from overtime requirements, see Wage
Order § 5 but does not define the term “interstate drivers.” Thus,
the question before us is whether an “interstate driver” under the
Wage Order carries the same meaning as an employee covered
under the MCA exemption.
¶2 Another division of this court considered this question in
Brunson v. Colorado Cab Co., 2018 COA 17 (cert. granted June 18,
2018) (cert. dismissed Jan. 29, 2019). It held that the Wage Order’s
“interstate driver” exemption applies “only to drivers whose work
takes them across state lines,” and in doing so, accorded a
narrower meaning (and exemption) to “interstate drivers” than
accorded under the MCA exemption. Id. at ¶ 45.
¶3 In this case, defendant, JP Trucking, Inc., appeals the trial
court’s judgment in favor of plaintiffs, former employees Leonel
Gomez, Francisco Gonzalez, Ebarardo Sanchez, and Nathan Abbott
(collectively Employees), following a limited remand ordered by a
division of this court for additional factual findings. JP Trucking
asks us to reject the Brunson division’s holding and urges us to
read “interstate drivers” under the Wage Order harmoniously with
the MCA exemption. JP Trucking also challenges the damages
2
awarded. For the reasons explained below, we agree with JP
Trucking on the first issue and respectfully decline to follow
Brunson. See Chavez v. Chavez, 2020 COA 70, ¶ 13 (the holding of
one division of the court of appeals does not bind another division).
Finding Deherrera’s reasoning persuasive, we adopt it and,
therefore, reverse the judgment in favor of Employees under the
Wage Order and remand the case with directions to enter judgment
in favor of JP Trucking. Because we reverse the judgment, we need
not address JP Trucking’s remaining contentions.
I. Factual and Procedural Background
¶4 JP Trucking hired Employees as truck drivers. In their
complaint, Employees alleged that JP Trucking failed to pay them
time and a half as required by the FLSA, 29 U.S.C. §§ 201-219(2018), and the Wage Order. JP Trucking answered that because
Employees were interstate drivers, they were exempt from overtime
under the MCA exemption and the Wage Order.
¶5 Following a bench trial, the trial court found for Employees
under the FLSA and Wage Order and awarded them damages. JP
Trucking appealed. Another division of this court concluded that it
could not resolve the appeal without further factual findings. The
3
division ordered a limited remand, instructing the trial court to
make additional findings of fact to redetermine whether Employees
were exempt from the FLSA, and to decide whether, in light of
Brunson, they were exempt under the Wage Order. Gomez v. JP
Trucking, (Colo. App. No. 17CA2384, June 18, 2019) (unpublished
order).
¶6 On remand, a different judge entered additional factual
findings.2 As relevant here, the trial court found:
 JP Trucking regularly transported items and materials
across state lines and within Colorado when the
materials were destined for or coming from other states.
 During Employees’ employment, JP Trucking “was
involved in interstate commerce and subject to regulation
by the U.S. Department of Transportation.”
 JP Trucking “intended to and did comply with U.S.
Department of Transportation regulations, including
regulations relating to drivers’ qualifications and limits
on drivers’ hours,” during the period at issue.
2 The original trial judge retired before the division ordered the
limited remand.
4
 Interstate trips were “indiscriminately and randomly
distributed among its drivers.”
 Employees “could have been called upon to travel out-of-
state for JP Trucking, or to deliver within the state goods
that were in interstate commerce.”
 JP Trucking provided Employees with the Federal Motor
Carrier Safety Regulations, and Employees agreed to
familiarize themselves with them.
 JP Trucking’s employment application placed Employees
“on notice that they would be subject to investigation,
testing and restriction pursuant to the U.S. Department
of Transportation regulations.”
 JP Trucking’s employment application required
Employees to provide prior employment information
for JP Trucking’s investigation of their safety performance
histories pursuant to the U.S. Department of
Transportation’s regulations.
 On the part of the application asking “Intrastate Only,”
each employee checked the “No” box.
5
 None of the Employees indicated they were not applying
to drive in interstate commerce.
¶7 From these additional findings, the trial court concluded that
(1) JP Trucking regularly transported goods across state lines and
within Colorado when those goods were destined for or came from
other states; (2) Employees were randomly assigned trips involving
goods in interstate commerce; (3) JP Trucking maintained a
company policy regarding and performed the activity of interstate
driving by obtaining an interstate permit in 2008 and thereafter
consistently complying with U.S. Department of Transportation
regulations; and (4) JP Trucking adhered to federal regulations by
notifying Employees, through its employment application, of federal
policies and regulations, including those addressing investigation,
testing, and hours limitations. The trial court then found that JP
Trucking had met its burden of proving that Employees were
exempt from overtime under the MCA exemption.
¶8 Turning to Brunson, the trial court found that Gomez and
Sanchez were not “interstate drivers” under the Wage Order
because neither had driven out-of-state. And because Gonzalez and
Abbott had driven out-of-state only once, their out-of-state driving
6
was de minimis and, therefore, did not qualify them as “interstate
drivers.” The court then awarded Employees damages under the
Wage Order and reasonable fees and costs under section
8-4-110(1), C.R.S. 2019. On appeal, neither party disputes the trial
court’s FLSA judgment. Instead, they dispute whether an interstate
driver under the Wage Order is different from a driver who moves
goods in interstate commerce under the MCA exemption.
II. Interstate Driver
¶9 JP Trucking contends that the trial court should not have
relied on Brunson because the Brunson division got it wrong when it
interpreted “interstate drivers” in the Wage Order more narrowly
than federal courts that have interpreted the Wage Order
consistently with the MCA exemption. It asserts that because many
of the Wage Order’s provisions are patterned after the FLSA, federal
constructions of the Wage Order should be accorded great weight.
Alternatively, JP Trucking argues that if out-of-state travel is
necessary for an employee to be an interstate driver, then the trial
court erred by applying the de minimis rule and by finding Gonzalez
and Abbott non-exempt because the undisputed record shows that
both drove across state lines.
7
A. Standard of Review and Applicable Law
¶ 10 We review administrative regulations de novo, and our primary
task is to give effect to the enacting body’s intent. Colo. Coffee
Bean, LLC v. Peaberry Coffee Inc., 251 P.3d 9, 22 (Colo. App. 2010).
When construing administrative regulations, we apply the same
rules we use to interpret statutes. Berumen v. Dep’t of Human
Servs., 2012 COA 73, ¶ 19. As with statutes, we first look to the
regulation’s language and analyze “the words and phrases
according to their plain and ordinary meaning,” giving effect “to
every word and term whenever possible.” Id. “We also read and
consider the regulatory scheme as a whole to give consistent,
harmonious, and sensible effect to all of its parts.” Id. If the
language is clear and unambiguous, we do not resort to other rules
of construction. Id. Language “is ambiguous when it is reasonably
susceptible of multiple interpretations.” Colo. Oil & Gas
Conservation Comm’n v. Martinez, 2019 CO 3, ¶ 19.
1. MCA Exemption
¶ 11 The FLSA requires employers to pay overtime compensation to
employees who work more than forty hours a week. 29 U.S.C.
§ 207(a) (2018). But it exempts numerous employees, including
8
“any employee with respect to whom the Secretary of
Transportation [(Secretary)] has power to establish qualifications
and maximum hours of service” (the MCA exemption). 29 U.S.C.
§ 213(b)(1) (2018). Under the MCA exemption, the Secretary may
exercise power over an employee who “in the performance of his
duties moves goods in interstate commerce and affects the safe
operation of motor vehicles on public highways.” Deherrera, 820
F.3d at 1154 (quoting Foxworthy, 997 F.2d at 672); see also 49
U.S.C. § 31502(b)(2) (2018) (empowering the Secretary to “prescribe
requirements for . . . qualifications and maximum hours of service
of employees of, and standards of equipment of, a motor private
carrier, when needed to promote safety of operation”). Even if the
Secretary has not actually exercised jurisdiction, the MCA
exemption still applies if the Secretary has the authority to do so.
Baez v. Wells Fargo Armored Serv. Corp., 938 F.2d 180, 181 n.2
(11th Cir. 1991).
¶ 12 Federal courts have explained that this exemption applies
when an employee’s delivery “forms a part of a ‘practical continuity
of movement’ across state lines from the point of origin to the point
of destination.” Deherrera, 820 F.3d at 1155 (citation omitted). The
9
inquiry is whether “the shipper’s ‘fixed and persisting intent’ was to
move the goods in interstate commerce.” Id. (citation omitted).
Thus, even if “the final intended destination at the time the
shipment begins is another state, the [MCA exemption] applies
throughout the shipment, even as to a carrier that is only
responsible for an intrastate leg of the shipment.” Id. at 1159
(quoting Project Hope v. M/V IBN SINA, 250 F.3d 67, 75 (2d Cir.
2001)).
2. Wage Order
¶ 13 The Wage Order applies to work “performed within the
boundaries of the state of Colorado” for certain industries.3 Wage
Order § 1. The Colorado Department of Labor and Employment
(Department) annually promulgates wage orders that regulate
“‘wages, hours, working conditions and procedures’ for certain
employers and employees performing work in Colorado.” Chase v.
Farmers Ins. Exch., 129 P.3d 1011, 1012 (Colo. App. 2004) (citation
omitted).
3 The industries covered by the Wage Order include (1) retail and
service; (2) commercial support service; (3) food and beverage; and
(4) health and medical. Wage Order § 1.
10
¶ 14 As well, the Wage Order requires that certain covered
employees be paid “time and one-half of the regular rate of pay for
any work in excess of: (1) forty (40) hours per workweek; (2) twelve
(12) hours per workday[;] or (3) twelve (12) consecutive hours . . .
whichever calculation results in the greater payment of wages.”
Wage Order § 4. Like the FLSA, the Wage Order exempts several
categories of employees:
The following employees or occupations, as
defined below, are exempt from all provisions
of [the Wage Order]: 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. § 5 (emphasis added).
11
¶ 15 The Wage Order also exempts “[s]alespersons, parts-persons,
and mechanics employed by automobile, truck, or farm implement
(retail) dealers [and] salespersons employed by trailer, aircraft and
boat (retail) dealers,” as well as sales employees of retail or service
industries, employees of the ski industry, and employees of the
medical transportation industry. Id. § 6.
B. Brunson and Deherrera
¶ 16 Both federal and state appellate courts have weighed in on the
meaning and scope of the Wage Order’s “interstate drivers”
exemption. In Deherrera, the Tenth Circuit Court of Appeals
considered whether truckers who drove only an intrastate leg of a
shipment in interstate commerce were subject to the MCA
exemption and the Wage Order’s “interstate drivers” exemption.
820 F.3d at 1151.
¶ 17 After concluding that drivers who do not cross state lines, but
who nevertheless transport goods in interstate commerce, are
exempt under the MCA, the court held that the “interstate drivers”
exemption under the Wage Order “should be read in harmony with
the meaning of interstate commerce under the [MCA exemption].”
Id. at 1161. The court reasoned that like the Wage Order, the FLSA
12
mandates that employers provide overtime pay to employees who
work longer than forty hours a week. Id. at 1155; see 29 U.S.C.
§ 207(a). Also, like the Wage Order, the FLSA exempts dozens of
similar employee categories from the overtime pay requirement.
Deherrera, 820 F.3d at 1154. And, the court explained that when
read in context, the term “interstate drivers” was not ambiguous,
and that because the Wage Order exemptions were patterned after
the FLSA exemptions, the two specific exemptions (interstate drivers
and MCA) should be read harmoniously. Id. at 1160-61. Thus, the
Tenth Circuit held that drivers who engage in interstate commerce
for purposes of the MCA exemption are also “interstate drivers”
under the Wage Order. Id. at 1161.
¶ 18 Two years after Deherrera, a division of this court considered a
similar question in Brunson — whether airport shuttle drivers are
“interstate drivers” under the Wage Order. Following Deherrera, the
trial court had granted summary judgment in favor of the employer,
Colorado Cab Company, concluding that the “Wage Order’s
language closely follows” the MCA exemption. Brunson, ¶ 7. On
appeal, the division reversed. Contrary to Deherrera, the Brunson
division found the term “interstate drivers” ambiguous, reasoning
13
that it could mean drivers who crossed state lines or drivers who
transported goods in interstate commerce without crossing state
lines, consistent with the MCA. Brunson, ¶¶ 17-18. It therefore
looked beyond the express language to discern the term’s meaning.
¶ 19 While the division acknowledged the similarities between the
Wage Order’s and the FLSA’s exemption categories, it found these
similarities insufficient to conclude that they closely parallel each
other, and, thus, it rejected the Tenth Circuit’s interpretation in
Deherrera. Id. at ¶¶ 32-33. Relying instead on the Department’s
advisory bulletin, the Brunson division held that the “term
‘interstate drivers’ in the Wage Order applies only to drivers whose
work takes them across state lines.” Id. at ¶ 45. And it reasoned
that when employees are subject to both federal and state wage
laws, the law providing greater protection, or a higher standard,
applies. Id. at ¶ 40.
C. Analysis
¶ 20 We begin by agreeing with Brunson that states may provide
employees with greater benefits than those provided under the
FLSA and that the FLSA provides a floor and not a ceiling on
compensation. Brunson, ¶ 21. We also acknowledge that in cases
14
like this, where employees are covered by both federal and state
minimum wage laws, “the law which provides a higher minimum
wage or sets a higher standard shall apply.” Id. at ¶ 22 (quoting
Wage Order Introduction); Wage Order § 22 (“Whenever employers
are subjected to both federal and Colorado law, the law providing
greater protection or setting the higher standard shall apply.”).
Finally, we agree that exemptions should be construed narrowly.
Brunson, ¶ 23.
¶ 21 But we depart from Brunson’s conclusion that the federal and
state exemptions are not substantially similar; instead, we agree
with Deherrera that the Wage Order provisions are largely patterned
after the FLSA. Indeed, in addition to interstate drivers, both laws
exempt administrative employees; professional and executive
employees; outside salesmen; casual babysitters and domestic
service companions; driver helpers; taxi cab drivers; and
salespersons, parts-persons, and mechanics of retail businesses
dealing in automobile, truck, and farm implements. Compare Wage
Order § 5, with 29 U.S.C. § 213(a)(1), (a)(15), (b)(1), (b)(10)(A),
(b)(11), (b)(17). To be sure, the MCA exempts a far greater number
of employee categories than the Wage Order does. But in our view,
15
the number of shared, identical exemptions renders them
substantially similar. Cf. Farmer v. Raemisch, 2014 COA 3, ¶¶ 8-12
(concluding that, although worded differently, the Colorado statute
limiting an incarcerated plaintiff’s ability to proceed in forma
pauperis was sufficiently similar to a federal law that federal courts
had concluded did not violate the defendant’s right to access the
courts). And our supreme court instructs that where a state law is
patterned after a federal law or designed to implement its policies,
federal courts’ constructions “should be accorded great weight.”
People v. Gallegos, 251 P.3d 1056, 1062 (Colo. 2011); see also In re
2015-2016 Jefferson Cty. Grand Jury, 2018 CO 9, ¶ 49; Flood v.
Mercantile Adjustment Bureau, LLC, 176 P.3d 769, 772 (Colo. 2008).
¶ 22 Next, and contrary to Brunson, we conclude that the term
“interstate drivers” is not reasonably susceptible of more than one
reading and, thus, is not ambiguous. See Deherrera, 820 F.3d at
1161. Federal appellate decisions have consistently focused on the
movement of goods in interstate commerce, from the point of origin
to the destination, rather than on the employee’s movement. These
courts have repeatedly explained that the MCA exemption includes
an employee who “in the performance of his duties moves goods in
16
interstate commerce and affects the safe operation of motor vehicles
on public highways” thereby, reflecting a concern for safety on all
public highways from beginning to end, irrespective of whether a
particular employee crosses a state boundary. Id. at 1154 (quoting
Foxworthy, 997 F.2d at 672); see also United States v. Am. Trucking
Ass’ns, 310 U.S. 534, 553 (1940); Burlaka v. Contract Transp.
Servs. LLC, 971 F.3d 718 (7th Cir. 2020) (The rationale of the MCA
exemption is safety because “[i]t is dangerous for drivers to spend
too many hours behind the wheel, and ‘a requirement of pay that is
higher for overtime service than for regular service tends to
. . . encourage employees to seek’ overtime work.” (quoting Levinson
v. Spector Motor Serv., 330 U.S. 649, 657 (1947))). This exemption
applies when an employee’s delivery “forms a part of a ‘practical
continuity of movement’ across state lines from the point of origin to
the point of destination.” Deherrera, 820 F.3d at 1155 (citation
omitted). The inquiry is whether “the shipper’s ‘fixed and persisting
intent’ was to move the goods in interstate commerce.” Id. (citation
omitted). Thus, if “the final intended destination at the time the
shipment begins is another state, the [MCA exemption] applies
throughout the shipment, even as to a carrier that is only
17
responsible for an intrastate leg of the shipment.” Id. at 1159
(quoting Project Hope, 250 F.3d at 75). That the exemption focuses
on the shipper’s intent and the movement of goods in interstate
commerce is reflected by the exemption’s inclusion of “driver[s] and
driver’s helper[s] making local deliveries,” employees who rarely
cross state lines to perform their functions. See 29 U.S.C.
§ 213(b)(11).
¶ 23 Moreover, when interpreting the Department’s regulations, we
presume the Department was aware of existing case law
interpreting the MCA exemption when it promulgated the Wage
Order. See Larrieu v. Best Buy Stores, L.P., 2013 CO 38, ¶ 13
(“When the General Assembly legislates in a particular area, we
presume it was aware of existing case law precedent.”). Indeed, the
principle that intrastate transport may still be interstate in
character “when it forms a part of a ‘practical continuity of
movement’ across state lines from the point of origin to the point of
destination,” Foxworthy, 997 F.2d at 672 (quoting Walling v.
Jacksonville Paper Co., 317 U.S. 564, 568 (1943)), was established
well before the Wage Order took effect on December 30, 2014. See,
e.g., id. (holding that a dairy delivery driver who delivered products
18
intrastate only transported goods in interstate commerce and was
exempt under the MCA exemption); Abel v. S. Shuttle Servs., Inc.,
631 F.3d 1210 (11th Cir. 2011) (holding that an airport shuttle
driver transported people and goods in interstate commerce and fell
within the MCA exemption); Bilyou v. Dutchess Beer Distribs., Inc.,
300 F.3d 217, 229 (2d Cir. 2002) (holding that a beer distributor
driver making intrastate deliveries was transporting goods in
interstate commerce and was subject to the MCA exemption); see
also Southland Gasoline Co. v. Bayley, 319 U.S. 44, 48 (1943)
(“By exempting the drivers of motors from the maximum hour
limitations of the [FLSA], Congress evidently relied upon the Motor
Carrier [Act] provisions to work out satisfactory adjustments for
employees charged with the safety of operations in a business
requiring fluctuating hours of employment, without the burden of
additional pay for overtime.”).
¶ 24 Finally, knowing the body of federal case law exempting
drivers who drive only an intrastate leg of a longer journey, the
Department did not add language to the Wage Order limiting the
term “interstate drivers” to those who cross state boundaries. And
we may not read a restriction into the Wage Order that was not
19
placed there by the Department.4 See E-470 Pub. Highway Auth. v.
Revenig, 140 P.3d 227, 229 (Colo. App. 2006) (“We may not read
into a statute an exception that its plain language does not suggest,
warrant, or mandate.”).
¶ 25 We are not persuaded that the Wage Order’s provision on dual
jurisdiction compels a different result. Just because the Wage
Order may offer greater protections than the federal law does not
necessarily mean that it does so. Absent any indications that the
Wage Order’s “interstate drivers” exemption applies only to drivers
who cross state lines, we conclude that the Wage Order’s “interstate
drivers” exemption mirrors the MCA exemption in scope.5
4 We note that, following the Brunson decision, the Department
promulgated the Colorado Overtime and Minimum Pay Standards
Order No. 36, 7 Code Colo. Regs. 1103-1 (effective Mar. 16, 2020),
https://perma.cc/3GQJ-SGSK (COMPS Order). This order exempts
“interstate transportation workers” and includes “an employee who
is a driver . . . if the employee crosses state lines in the course of his
or her work.” COMPS Order, Rule 2.2.6(A). Because the COMPS
Order was not in effect at the time Employees worked for JP
Trucking, our opinion does not address the scope of the COMPS
Order.
5 We acknowledge that the Advisory Bulletin, unlike the Wage
Order, separately defines the term interstate driver and that the
Brunson division relied on this definition to reach its decision.
However, because we do not find this term ambiguous, we need not
consult additional interpretive aids. See Lewis v. Taylor, 2016 CO
20¶ 26 Nor are we persuaded that our holding runs afoul of the
maxim that we should narrowly construe exemptions. While
“exemptions, such as the overtime pay exemption, should be
construed narrowly,” Brunson, ¶ 23, the Brunson division did not
explain why the Wage Order’s “interstate drivers” exemption should
necessarily be construed more narrowly than the MCA exemption.
See Deherrera, 820 F.3d at 1154 (noting that FLSA exemptions —
such as the MCA exemption — should be narrowly construed
against employers (citing Arnold v. Ben Kanowsky, Inc., 361 U.S.
388, 392 (1960))). As previously noted, if the Department had
intended to afford interstate drivers greater protections than drivers
subject to the MCA exemption, it could have done so by defining an
interstate driver as one who crosses state lines. Therefore, we
48, ¶ 20 (“If the statutory language is clear, we apply it as such.
But if the statutory language has more than one reasonable
meaning, and is therefore ambiguous, we may look to interpretive
aids to construction to resolve the ambiguity and determine which
of the reasonable interpretations is appropriate.”) (citation omitted).
And even if we found the term interstate driver ambiguous, we
agree with the Brunson division’s observation that “we do not give
the Advisory Bulletin the same deference that an agency’s
interpretation arrived at after notice-and-comment rulemaking
would warrant under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844 (1984).” Brunson, ¶ 37.
21
conclude that the “interstate drivers” Wage Order exemption
includes employees who are subject to the MCA exemption, and
includes employees who do not cross state lines so long as the
transport itself “forms a part of a ‘practical continuity of movement’
across state lines from the point of origin to the point of
destination.” Foxworthy, 997 F.2d at 672 (quoting Walling, 317
U.S. at 568).
D. Application
¶ 27 The trial court’s findings on limited remand establish that
Employees are subject to the MCA exemption and that JP Trucking
satisfied its burden of proving that it transported goods in interstate
commerce, despite some of those transports occurring intrastate.
Neither party disputes this ruling. Because we decline to follow
Brunson’s holding, those same findings establish that Employees
are “interstate drivers” under the Wage Order and are similarly
exempted from overtime pay.
¶ 28 Accordingly, we reverse the trial court’s judgment under the
Wage Order and remand the case with directions to vacate the
damages award. Because we reverse the judgment, we need not
address JP Trucking’s remaining contentions concerning damages.
22
III. Conclusion
¶ 29 The judgment is reversed, and the case is remanded with
directions to enter judgment for JP Trucking and to vacate the
damages award.
JUDGE DUNN and JUDGE BROWN concur.
23