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

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,

(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

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),

(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.,

. 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.,

(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.,

(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.,

; see also Brinker Rest. Corp. v. Superior Court,

(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,

(Colo. App. 2007); see also Christensen v. Harris Cty.,

(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,

(citation omitted); see Preserve at the

Fort, Ltd. v. Prudential Huntoon Paige Assocs.,

, 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.,

(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,

(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,

, 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,

(Colo. 2010); Sierra Club,

.

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,

.

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,

. “The FLSA sets a floor, not a ceiling, on

compensation that employees must receive.”

(quoting Barefield

v. Vill. of Winnetka,

(7th Cir. 1996)); see Martinez

v. Combs,

(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,

(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.,

(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.,

579, 583 (Colo. App. 1998); see Colo. Civil Rights Comm’n v. Big O

Tires, Inc.,

(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,

(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

(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.”

(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.,

(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,

(interpreting the MCA overtime pay

exemption); see also Abel v. S. Shuttle Servs., Inc.,

(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,

. 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,

(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,

. True, as Deherrera observed, the Wage Order and the FLSA

include exemptions that similarly list “administrative, executive,

professional and sales employees.”

. 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

(b)(1). Rather, the FLSA lists these employees

in a separate exemption provision altogether. See

(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,

.

¶ 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,

(10th Cir. 2017); see also Dillabaugh v. Ellerton,

(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.

§ 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.,

(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,

(citation omitted); Preserve,

.

¶ 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,

(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,

; Cleary ex rel. Cleary v. Waldman,

(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.,

(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,

. 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,

;

see also Skidmore,

.

¶ 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,

; see also Auer v. Robbins,

(1997);

Sierra Club,

, 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,

, we reverse the court’s summary judgment and

remand the case for further proceedings.

JUDGE TAUBMAN and JUDGE KAPELKE concur.

21