and County of Denver District Court No. 15CV31252 Honorable
Ross B. Buchanan, Judge
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
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
claim 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).
3 The Acts are implemented by Colorado Minimum Wage Order 31
(Wage Order),  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
5 But, because Colorado provides more employee protection
than does federal law, and the Department has published clear
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.
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 was an
"interstate driver." As a matter of law, therefore,
Brunson was exempt from the Wage Order's overtime pay
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.
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 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."
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.
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 ...