Brunson v. Colorado Cab Company, LLC , 433 P.3d 93 ( 2018 )

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
February 8, 2018
2018COA17
No. 16CA1864, Brunson v. Colorado Cab Co. ― Labor and
Industry ― Wages ― Colorado Minimum Wage Order ―
Exemptions
In this appeal from a grant of summary judgment, a division of
the court of appeals considers whether shuttle van drivers who
transport passengers to and from Denver International Airport, but
do not drive outside of the state, are considered to be “interstate
drivers,” and thus are exempt under the Colorado Minimum Wage
Order from receiving overtime pay. The Colorado Minimum Wage
Act, the Colorado Wage Claim Act, and the Colorado Minimum
Wage Order do not define the term “interstate drivers.”
“Interstate drivers” under federal law includes some drivers
involved in interstate commerce whose work travel is entirely within
the state. But the division concludes that the federal interpretation
of “interstate drivers” does not apply to the state claims at issue
here because the federal and state overtime pay exemptions are not
“identical or substantially so.” Relying on the Colorado Department
of Labor and Employment’s Advisory Bulletin as clear persuasive
evidence of its intent to provide greater protections than those
provided under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219
(2012), the division concludes that the term “interstate drivers” in
the Wage Order applies only to drivers whose work takes them
across state lines. It thus reverses the grant of summary judgment.
COLORADO COURT OF APPEALS 2018COA17
Court of Appeals No. 16CA1864
City and County of Denver District Court No. 15CV31252
Honorable Ross B. Buchanan, Judge
Daniel Brunson,
Plaintiff-Appellant,
v.
Colorado Cab Company, LLC, and Shamrock Charters, Inc.,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE LICHTENSTEIN
Taubman and Kapelke*, JJ., concur
Announced February 8, 2018
Law Office of Brian D. Gonzales, PLLC, Brian D. Gonzales, Fort Collins,
Colorado, for Plaintiff-Appellant
Sherman & Howard, LLC, Patrick R. Scully, Matthew M. Morrison, Denver,
Colorado; Morgan, Lewis & Bockius, LLP, Christopher A. Parlo, Melissa C.
Rodriguez, Jason D. Burns, New York, New York, for Defendants-Appellees
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 This case addresses, as a matter of first impression, whether
shuttle van drivers who transport passengers to and from Denver
International Airport (DIA), but do not drive outside of the state, are
considered to be “interstate drivers,” and thus are exempt, under
the Colorado Minimum Wage Order, from receiving overtime pay.
¶2 Plaintiff, Daniel Brunson, a shuttle van driver, appeals the
district court’s grant of summary judgment in favor of defendants,
Shamrock Charters, Inc. and Colorado Cab Company, LLC,
(collectively, Shamrock) on Brunson’s claim1 that Shamrock’s
failure to pay him overtime compensation violated the Colorado
Minimum Wage Act, section 8-6-101, et seq., C.R.S. 2017, and the
Colorado Wage Claim Act, section 8-4-101, et. seq., C.R.S. 2017
(the Acts).
1 Brunson filed individual claims as well as claims on behalf of a
putative class of persons similarly situated. Only summary
judgment on his individual claims is at issue here. The record is
unclear whether Brunson also worked as a driver for Colorado Cab
Company, LLC, and our decision does not address any such
employment.
1
¶3 The Acts are implemented by Colorado Minimum Wage Order
31 (Wage Order),2 promulgated by the Colorado Department of
Labor and Employment (the Department). See Colo. Minimum
Wage Order No. 31, 7 Code Colo. Regs. 1103-1 (effective Dec. 30,
2014-Dec. 31, 2015), https://perma.cc/PTD2-TSUN (hereinafter
Wage Order). The Wage Order regulates wages and requires certain
employers to pay overtime compensation to its employees. As
pertinent here, the Wage Order exempts “interstate drivers” from all
its provisions. Wage Order § 5.
¶4 Neither the Acts nor the Wage Order implementing these Acts
defines the term “interstate drivers.” The district court relied on
federal law to conclude that “interstate drivers” includes drivers
involved in interstate commerce, even if their work travel is entirely
within the state.
¶5 But, because Colorado provides more employee protection
than does federal law, and the Department has published clear
2 Wage Order 31 implements the statutes for the year 2015. As of
the date of this opinion, subsequent wage orders have been issued,
but the relevant language has not been changed. See Colo.
Minimum Wage Order No. 31, 7 Code Colo. Regs. 1103-1:1 (effective
Dec. 30, 2014-Dec. 31, 2015), https://perma.cc/PTD2-TSUN
(hereinafter Wage Order).
2
persuasive evidence of its intent to provide greater protections than
those provided under the Fair Labor Standards Act (FLSA), 29
U.S.C. §§ 201-219 (2012), we conclude that federal case law’s
interpretation of “interstate drivers” does not apply to Brunson’s
state claims. We therefore reverse the court’s summary judgment
and remand the case for further proceedings on Brunson’s claim.
I. Background
¶6 Shamrock operates the SuperShuttle van service to and from
DIA. Brunson, as a SuperShuttle driver, transports passengers
between DIA and their homes, hotels, or a transportation hub
location. Brunson claims that he was entitled to overtime pay.
Shamrock contends that Brunson was exempt from the overtime
pay requirements of the Wage Order.
¶7 In granting summary judgment for Shamrock, the district
court found that the Wage Order’s language closely follows the
federal Motor Carrier Act (MCA) exemption of the FLSA. It therefore
relied on federal case law interpreting the MCA exemption to
conclude that although Brunson’s shuttle driving remained within
state lines, his driving involved interstate commerce, and, thus, he
3
was an “interstate driver.” As a matter of law, therefore, Brunson
was exempt from the Wage Order’s overtime pay requirements.
¶8 In rejecting Brunson’s state law claims, the district court
drafted a thorough and well-reasoned summary judgment order
interpreting the Wage Order consistent with the federal MCA
exemption. However, Brunson contends, and we agree, that the
federal interpretation of the MCA exemption does not apply to his
state claims.
II. Standard of Review
¶9 We review de novo the grant of a motion for summary
judgment. Grippin v. State Farm Mut. Auto. Ins. Co., 2016 COA 127,
¶ 8. Summary judgment is appropriate only when there is no
disputed issue of material fact and the moving party is entitled to
judgment as a matter of law. C.R.C.P. 56(c); Chase v. Farmers Ins.
Exch., 129 P.3d 1011, 1014 (Colo. App. 2004).
¶ 10 We also review administrative regulations de novo. Our
primary task in this review is to give effect to the promulgating
body’s intent. See Colo. Coffee Bean, LLC v. Peaberry Coffee Inc.,
251 P.3d 9, 22 (Colo. App. 2010). In construing an administrative
regulation, we apply the same rules of construction that we would
4
apply in interpreting a statute. Berumen v. Dep’t of Human Servs.,
2012 COA 73, ¶ 19; see also Brinker Rest. Corp. v. Superior Court,
273 P.3d 513, 527 (Cal. 2012) (“When a wage order’s validity and
application are conceded and the question is only one of
interpretation, the usual rules of statutory interpretation apply.”).
And as with statutes, if the language of a regulation is clear and
unambiguous, we do not resort to other rules of construction.
Berumen, ¶ 19.
¶ 11 But if the language of a regulation or administrative rule is
ambiguous or unclear, we may consider an agency’s interpretation
of its own regulation or rule. Sierra Club v. Billingsley, 166 P.3d
309, 312 (Colo. App. 2007); see also Christensen v. Harris Cty., 529
U.S. 576, 588 (2000) (“[D]eference [to an agency’s interpretation of
its own regulation] is warranted only when the language of the
regulation is ambiguous.”).
¶ 12 When a promulgating body provides an interpretation
contained in other formats, such as opinion letters, internal agency
guidelines, manuals or bulletins — all of which lack the force of law
— such interpretations are “entitled to respect,” but only to the
extent that those interpretations have the “power to persuade.”
5
Christensen, 529 U.S. at 587 (citation omitted); see Preserve at the
Fort, Ltd. v. Prudential Huntoon Paige Assocs., 129 P.3d 1015, 1020
(Colo. App. 2004).
III. Discussion
¶ 13 The General Assembly has given the Department the power to
promulgate regulations, among them wage orders. Bonidy v. Vail
Valley Ctr. for Aesthetic Dentistry, P.C., 186 P.3d 80, 84 (Colo. App.
2008); see § 24-1-121(1), C.R.S. 2017. A wage order “regulates the
‘wages, hours, working conditions and procedures’ for certain
employers and employees performing work in Colorado.” Chase,
129 P.3d at 1012 (quoting Colo. Wage Order No. 22).
¶ 14 The Wage Order, by its own terms, applies only to work
performed “within the boundaries of the state of Colorado.” Wage
Order § 1. Among its provisions, and as relevant here, the Wage
Order requires covered employers to pay overtime at one-and-one-
half times the employee’s normal rate of pay. Id. § 4. The Wage
Order also exempts several categories of employees from all its
6
provisions.3 Among those exempt, the Wage Order lists “interstate
drivers.” Id. § 5. The Wage Order does not define who qualifies as
an “interstate driver.”
¶ 15 When the terms at issue are not defined, we look to the plain
meaning of the language used, considered within the context of the
regulation as a whole. See Berumen, ¶ 19. If the plain meaning of
the language of a regulation is clear and unambiguous, we need not
look further. Id. But if the words chosen by the enacting body are
capable of two or more constructions leading to different results,
the regulation is ambiguous. See State v. Nieto, 993 P.2d 493, 500-
01 (Colo. 2000) (discussing ambiguous statutory language).
¶ 16 When the language is ambiguous, we look beyond the express
regulatory language for other evidence of the promulgating body’s
intent and purpose. See Crandall v. City & Cty. of Denver, 238 P.3d
659, 662 (Colo. 2010); Sierra Club, 166 P.3d at 312.
3 Although the Wage Order includes a specific section titled,
“Exemptions from Overtime,” this section does not reference
“drivers,” other than to generally exempt employees of the medical
transportation industry. Wage Order § 6.
7
A. The Wage Order’s Language Is Ambiguous
¶ 17 Considered in the context of the regulation as a whole, it
would seem reasonable to construe the categorical exemption of
“interstate drivers” from the Wage Order’s provisions as applying
only to drivers who cross state lines. After all, the Wage Order’s
coverage provision states that it regulates wages for work performed
within state boundaries. See Wage Order § 1.
¶ 18 It is also reasonable to construe the term “interstate drivers”
as drivers whose transport — within state lines — involves
interstate commerce.4 Since the disputed term “interstate driver” is
susceptible of more than one reasonable meaning, it is ambiguous.
¶ 19 We therefore look beyond the express language for other
evidence of the promulgating body’s intent and purpose. See
Crandall, 238 P.3d at 662.
4This latter construction, as discussed later in this opinion, is
analogous to that employed in several federal cases interpreting the
MCA’s overtime pay exemption of the FLSA to apply to certain
drivers who, despite working entirely intrastate, transport goods or
persons in interstate commerce.
8
B. Federal Law Is Not Instructive
¶ 20 As the district court noted, there is a body of federal law that
interprets interstate drivers in the FLSA for purposes of the
exemption from receiving overtime pay. Under that interpretation,
certain drivers who work entirely within a state are considered
interstate drivers under the MCA exemption of the FLSA, and are
thus exempt from the federal statute’s overtime pay provisions. For
the following reasons, we conclude that federal law is neither
controlling nor persuasive.
¶ 21 First, it is well settled that states may provide employees with
benefits beyond those set out in the FLSA. Idowu v. Nesbitt, 2014
COA 97, ¶ 51. “The FLSA sets a floor, not a ceiling, on
compensation that employees must receive.” Id. (quoting Barefield
v. Vill. of Winnetka, 81 F.3d 704, 711 (7th Cir. 1996)); see Martinez
v. Combs, 231 P.3d 259, 280-81 (Cal. 2010) (“Courts must give . . .
wage orders independent effect in order to protect the commission’s
delegated authority to enforce the state’s wage laws and, as
appropriate, to provide greater protection to workers than federal
law affords.”).
9
¶ 22 The Department did just that here: it promulgated a wage
order independent of the FLSA, expressly stating that the Wage
Order shall apply instead of the FLSA when it provides greater
protection than the FLSA affords. See Wage Order Introduction (“If
an employee is covered by both state and federal minimum wage
laws, the law which provides a higher minimum wage or sets a
higher standard shall apply.”); Wage Order § 22 (addressing “Dual
Jurisdiction”).
¶ 23 Second, exemptions, such as the overtime pay exemption,
should be construed narrowly. See Comm’r of Internal Revenue v.
Clark, 489 U.S. 726, 739 (1989) (where “a general statement of
policy is qualified by an exception, we usually read the exception
narrowly in order to preserve the primary operation of the
provision”); see also Deherrera v. Decker Truck Line, Inc., 820 F.3d
1147, 1161 (10th Cir. 2016) (“Because it is an exemption, the court
should construe it narrowly.”).
¶ 24 And finally, although federal law may be instructive when
interpreting a Colorado statute, its helpfulness is limited to those
instances “where the state and federal statutes are identical or
substantially so.” Colonial Bank v. Colo. Fin. Servs. Bd., 961 P.2d
10
 579, 583 (Colo. App. 1998); see Colo. Civil Rights Comm’n v. Big O
Tires, Inc., 940 P.2d 397, 399 (Colo. 1997) (federal law is helpful
when the language of the Colorado law closely parallels that of its
federal counterpart).
¶ 25 Here, the Wage Order’s exemption of “interstate drivers” from
“all its provisions” does not resemble, much less closely parallel, the
MCA overtime pay exemption to the FLSA.
¶ 26 Section 5 of the Wage Order states,
The following employees or occupations, as
defined below, are exempt from all provisions
of Minimum Wage Order No. 31:
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.
(Emphasis added.)
11
¶ 27 In contrast, the MCA exemption of the FLSA, 29 U.S.C. §
213(b)(1) (2012), provides that the overtime pay requirement for
employees engaged in commerce shall not apply to “any employee
with respect to whom the Secretary of Transportation has power to
establish qualifications and maximum hours of service.”
¶ 28 While Colorado’s Wage Order lists interstate drivers as exempt
employees, the MCA overtime pay exemption of the FLSA does not
list “interstate drivers” at all. Instead, the MCA exemption
references employees involved in interstate commerce, see 29
U.S.C. § 207 (2012), and then exempts from overtime pay “any
employee with respect to whom the Secretary of Transportation has
power to establish qualifications and maximum hours of service.”
29 U.S.C. § 213(b)(1).
¶ 29 Federal courts have reviewed this language regarding the
Secretary of Transportation’s power to determine the extent to
which, and what type of, employees fall under the exemption.
Several of these courts have concluded that the MCA exemption
includes certain employees who “move goods in interstate
commerce.” See, e.g., Foxworthy v. Hiland Dairy Co., 997 F.2d 670,
672 (10th Cir. 1993). And this category of employees, in turn, has
12
been interpreted to include not only those involved in interstate
travel, but also those involved in the intrastate delivery of goods if
the essential character of the shipment is interstate in nature. See
Deherrera, 820 F.3d at 1154-55 (interpreting the MCA overtime pay
exemption); see also Abel v. S. Shuttle Servs., Inc., 631 F.3d 1210,
1216 (11th Cir. 2011) (concluding that the MCA overtime pay
exemption applies to the “intrastate transport of passengers to and
from an airport” under certain circumstances).
¶ 30 Thus, the force of the overtime pay exemption under the MCA
relies on the Secretary of Transportation’s power to regulate the
maximum hours of employees engaged in interstate commerce.
Deherrera, 820 F.3d at 1154-55. But, in Colorado, the Wage Order
exemption does not mention the power of the Secretary of
Transportation, much less depend on whether a driver was engaged
in interstate commerce.
¶ 31 Given the contextual differences of the MCA exemption and
Colorado’s Wage Order, we are not persuaded that the federal case
law interpreting interstate driver is instructive. See N. Colo. Med.
Ctr. v. Comm. on Anticompetitive Conduct, 914 P.2d 902, 905-06
(Colo. 1996). We note that in Deherrera, the Tenth Circuit reached
13
an opposite conclusion. It did so by construing the exemption for
“interstate drivers” in Colorado’s Wage Order harmoniously with the
FLSA’s MCA exemption. There, the court supported its application
of federal law to the Wage Order by observing that “many of the
Wage Order’s provisions (including the overtime exemptions) are
patterned largely after the FLSA.” Id. at 1161.
¶ 32 However, we do not perceive the similarities identified by
Deherrera as demonstrating a sufficiently close parallel between the
state and federal overtime pay exemption provisions. See Colonial
Bank, 961 P.2d at 583; see also Colo. Civil Rights Comm’n, 940 P.2d
at 399. True, as Deherrera observed, the Wage Order and the FLSA
include exemptions that similarly list “administrative, executive,
professional and sales employees.” 820 F.3d at 1161. Notably, the
Wage Order includes “interstate drivers” in its list, whereas the
FLSA does not. Also significant, the FLSA’s list of these employees
does not appear in the federal MCA exemption for overtime pay.
See 29 U.S.C. § 213(b)(1). Rather, the FLSA lists these employees
in a separate exemption provision altogether. See 29 U.S.C. §
213(a)(1).
14
¶ 33 Thus, because the federal and state overtime pay exemptions
are not “identical or substantially so,” see Colonial Bank, 961 P.2d
at 583, we are not persuaded to “accord great weight” to the federal
construction of the MCA exemption. See Deherrera, 820 F.3d at
1161.
¶ 34 For these reasons, we decline to adopt the district court’s
reliance on federal case law, and more specifically its reliance on
the Tenth Circuit’s Deherrera opinion. Even the Tenth Circuit has
observed that “Deherrera’s understanding of Colorado law could, of
course, be reexamined in light of subsequent relevant state court
decisions.” Combs v. Jaguar Energy Servs., LLC, 683 F. App’x 704,
708 (10th Cir. 2017); see also Dillabaugh v. Ellerton, 259 P.3d 550,
553 (Colo. App. 2011) (“We are not required to follow an
intermediate federal court’s interpretation of state law.”).
¶ 35 Because we have determined that the federal case law does
not provide persuasive authority as to the meaning of “interstate
driver,” we instead rely on the Department’s interpretation of its
own regulation.
15
C. Deference to Agency’s Interpretation
¶ 36 Here, the promulgating body — the Department — published
an advisory bulletin to “discharg[e] its statutory duty of educating
and assisting Colorado employees, employers and the general
public on Colorado labor and employment laws and related
workplace topics.” Colo. Div. of Labor, Advisory Bulletins and
Resource Guide Foreword (Mar. 31, 2012), https://perma.cc/7PLA-
ZTRD (hereinafter Advisory Bulletin). As pertinent here, the
Advisory Bulletin separately defines “interstate driver” and
intrastate driver for purposes of determining coverage and
exemptions under the Wage Order. Id. § 22(I).
¶ 37 To be sure, 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). Indeed, as the Advisory Bulletin itself states, it is not “an
official record of action or law.” Advisory Bulletin Foreword.
Nonetheless, the interpretation in the Advisory Bulletin is “entitled
to respect” to the extent it has the “power to persuade.”
16
Christensen, 529 U.S. at 587 (citation omitted); Preserve, 129 P.3d
at 1020.
¶ 38 An agency interpretation’s persuasiveness is derived in part
from the “thoroughness evident in its consideration” and from its
reflection of a body of experience and informed judgment. Skidmore
v. Swift, 323 U.S. 134, 140 (1944). The Advisory Bulletin meets
these criteria. It is a 200-page document, comprehensively
addressing wage law and related workplace topics, and, in it, the
Department acknowledged the “extensive input and feedback [it
had] received from Colorado employees, employers, attorneys, law
firms, and organizations regarding the content of this publication.”
Advisory Bulletin Foreword.
¶ 39 Further, to be persuasive, an agency interpretation must be
consistent and contemporaneous with other pronouncements of the
agency, and must be reasonable, given the language and purpose of
the statutes the regulation is designed to implement. See Skidmore,
323 U.S. at 140; Cleary ex rel. Cleary v. Waldman, 167 F.3d 801,
808 (3d Cir. 1999). Again, the Advisory Bulletin satisfies these
criteria. Its provisions defining (and addressing the distinctions in
coverage between) “interstate drivers” and intrastate drivers were
17
published contemporaneously with, and have not been revised since
its March 2012 publication date. And these provisions do not
conflict with — but rather fulfill the Department’s statutory duty to
explain — the Wage Order’s exemption of “interstate drivers” from
its coverage. See Advisory Bulletin Forward (noting that it is “not
intended to expand, narrow, or contradict current law”). And, the
Advisory Bulletin’s provisions are reasonable given the General
Assembly’s objective of requiring Colorado employers to provide
adequate wages for their workers. See § 8-6-101(1), C.R.S. 2017
(stating that inadequate wages exert a “pernicious effect” on the
health and morals of workers); § 8-6-104, C.R.S. 2017 (prohibiting
inadequate wages); see also Montemayor v. Jacor Commc’ns. Inc., 64
P.3d 916, 923 (Colo. App. 2002) (providing that the Colorado Wage
Claim Act is to be liberally construed to carry out its purpose to
require Colorado employers to timely pay wages and to provide
adequate judicial relief when wages are not paid).
¶ 40 Also, consistent with the Wage Order, the Department’s
Advisory Bulletin clarified that if Colorado gives greater protection
to the worker than that provided in the FLSA, then Colorado’s
18
definition controls. In a section entitled “Federal Law vs. Colorado
Law,” the Department explains that
[e]mployers and employees in Colorado may be
covered by either federal wage law, state wage
law, both state and federal law, or neither,
depending upon the particular circumstances.
Whenever employers are subject to both
federal and Colorado law, the law providing
greater protection for the employee or setting
the higher standard shall apply.
Advisory Bulletin § 29(I).
¶ 41 We therefore determine that the Advisory Bulletin is
persuasive and entitled to respect such that “courts and litigants
may properly resort [to it] for guidance.” See Skidmore, 323 U.S. at
140. Thus, we will consider the Advisory Bulletin in attempting to
discern the Department’s intent in promulgating the Wage Order’s
exemption of “interstate drivers.” See Christensen, 529 U.S. at 587;
see also Skidmore, 323 U.S. at 140.
¶ 42 The Advisory Bulletin clarifies which drivers the Department
considers to be “interstate drivers” exempt from overtime pay.
Advisory Bulletin § 22(I). It defines “interstate drivers” as “drivers
whose work takes them across state lines.” Id. It states that these
19
drivers “are exempt from all of the provisions” of the Wage Order.
Id.
¶ 43 And, in contrast, the Advisory Bulletin defines “intrastate
drivers” as “[d]rivers whose work travel is entirely within the State
of Colorado.” Id. It states that intrastate drivers are “not
specifically exempted from the provisions” of the Wage Order. Id.
Rather, determinations of coverage and exemptions for these drivers
are to be made on “a case-by-case basis in accordance with the
provisions of the Wage Order.” Id. The Advisory Bulletin states
that “[f]or an intrastate driver to be covered by the Wage Order, the
driver’s work must be performed for an employer categorized in one
[of] the four covered industries as specified by the Wage Order.”5 Id.
¶ 44 We therefore conclude that the Department’s interpretation of
its own regulation is entitled to respect, see Christensen, 529 U.S.
at 588; see also Auer v. Robbins, 519 U.S. 452, 461-62 (1997);
Sierra Club, 166 P.3d at 312, and we construe the term “interstate
5 The Wage Order covers employers in the following four industries:
“(A) Retail and Service,” “(B) Commercial Support Service,” “(C) Food
and Beverage,” and “(D) Health and Medical.” Wage Order § 1.
20
drivers” to apply only to drivers whose work takes them across state
lines.
IV. Conclusion
¶ 45 The term “interstate drivers” in the Wage Order applies only to
drivers whose work takes them across state lines. Because
Shamrock did not “plainly and unmistakably” demonstrate that
Brunson falls within the Wage Order’s exemption, see Chase, 129
P.3d at 1014-15, we reverse the court’s summary judgment and
remand the case for further proceedings.
JUDGE TAUBMAN and JUDGE KAPELKE concur.
21