v. JP Trucking, Inc

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