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Brunson v. Colorado Cab Co., LLC

Court of Appeals of Colorado, First Division

February 8, 2018

Daniel Brunson, Plaintiff-Appellant,
v.
Colorado Cab Company, LLC, and Shamrock Charters, Inc., Defendants-Appellees.

         City and County of Denver District Court No. 15CV31252 Honorable Ross B. Buchanan, Judge

          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

          OPINION

          LICHTENSTEIN JUDGE.

         ¶ 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[1] 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), [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 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 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 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. 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 ยง 24-1-121(1), C.R.S. 2017. A wage order "regulates the 'wages, hours, working conditions and procedures' for certain employers and ...


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