Christopher Kieninger v. Crown Equipment Corporation , 386 Wis. 2d 1 ( 2019 )

2019 WI 27
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP631
COMPLETE TITLE: Christopher Kieninger and Dewayne Meek,
Plaintiffs-Appellants,
v.
Crown Equipment Corporation d/b/a Crown Lift
Trucks, LLC,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 380 Wis. 2d 282, 913 N.W.2d 234
(2018 – unpublished)
OPINION FILED: March 20, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 12, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Ellen K. Berz
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by David J.B. Froiland, Christine Bestor Townsend, and
Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., Milwaukee, with
whom on the briefs were Lynn M. Stathas, Malinda J. Eskra, and
Reinhart Boerner Van Deuren S.C., Madison. There was an oral
argument by David J.B. Froiland.
For the plaintiffs-appellants, there was a brief filed by
Kurt C. Kobelt and Law Offices of Kurt C. Kobelt, Middleton.
There was an oral argument by Kurt C. Kobelt.
2019 WI 27
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP631
(L.C. No. 2014CV2791)
STATE OF WISCONSIN : IN SUPREME COURT
Christopher Kieninger and Dewayne Meek,
Plaintiffs-Appellants, FILED
v. MAR 20, 2019
Crown Equipment Corporation d/b/a Crown Lift Sheila T. Reiff
Trucks, LLC, Clerk of Supreme Court
Defendant-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 DANIEL KELLY, J. Messrs. Christopher Kieninger and
Dewayne Meek tell us that Wisconsin's statutes and regulations
require their employer to pay them for the time they spend
driving a company-provided vehicle between their homes and their
assigned jobsites.1 Because our laws do not impose such an
obligation, we reverse the court of appeals.
1This is a review of an unpublished decision of the court
of appeals, Kieninger v. Crown Equipment Corp., No. 2017AP631,
unpublished slip op. (Wis. Ct. App. Jan. 18, 2018), which
reversed the judgment of the Dane County Circuit Court, the
Honorable Ellen K. Berz presiding.
No. 2017AP631
I. BACKGROUND
¶2 Crown manufactures industrial equipment, including
forklifts. It employs field service technicians ("Technicians")
throughout Wisconsin to service that equipment. Technicians
travel to customers' locations in Crown's vans, which are
stocked with the tools, equipment, and supplies necessary to
their work.2 Crown's dispatchers and the Technicians
collaboratively schedule the service calls to, in part, minimize
travel time and maximize time spent serving the customers.
Technicians typically are able to choose which service calls
will be the first and last of the day.
¶3 Technicians have the choice of commuting between work
and home in either their personal vehicles or the company's
vans. A Technician choosing the former drives his personal
vehicle to his assigned branch prior to the beginning of his
shift. There, he picks up the company van and makes his
appointed rounds. At the end of his shift, he takes the van
back to his branch location, and drives his personal vehicle
home. If he chooses the latter option, he drives the company
van home after the last service call of the shift, and the next
day drives it directly to the first scheduled service call.
2Crown has four branch locations in Wisconsin: Milwaukee,
Green Bay, La Crosse, and Madison. Each Technician is assigned
to a branch, and serves customers within that branch's area.
However, there are circumstances, not relevant to this case, in
which a Technician may be required to serve a customer outside
of his assigned branch's area.
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No. 2017AP631
Technicians who commute in a company van usually arrange the
first and last appointments so they are as close to home as
possible.
¶4 Crown pays its Technicians for all of the time they
spend traveling between jobsites as well as between jobsites and
Crown facilities. It does not pay them for commute time between
home and work when using their personal vehicles. Commute time
in a Crown-provided van is handled differently. Historically,
Crown paid for time spent commuting in a company van between
home and the first or last service call, except for the first 30
minutes of each. That policy changed in September 2013.
¶5 The new policy still allows a Technician to commute in
one of Crown's vans. It provides that "[h]ourly Technicians who
drive a company vehicle in the course of employment with Crown
may be given the option to park the vehicle at home between
shifts." With respect to compensation for travel between home
and work, however, the Commute Travel Time Guidelines (the
"Guidelines") now say the following:
Commute Travel at the Beginning of the Work Day
A technician will begin clocking compensated time when
one of the following has occurred:
1. The technician has arrived at the customer
guard shack or customer's parking space.
2. The technician has arrived at the branch.
3. The technician arrives at location for the
vehicle to be serviced.
4. Forty five (45) minutes of commute travel has
elapsed. Commute travel greater than 45
minutes at the beginning of the work day
will be compensated.
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No. 2017AP631
Commute Travel at the End of the Work Day
The work day ends when all work related activities
have been completed. This includes properly placing
all tools and other items in the vehicle, completing
all forms and paperwork, and communicating with
dispatch as necessary. Commute time begins when the
technician has left the last work location. A
technician's commute from the assigned work area to
home is not compensated.
¶6 Messrs. Kieninger and Meek are two of Crown's
Technicians. They both opted to commute between home and work
in Crown's vans, and each signed a copy of the Guidelines.
Nevertheless, they believe that the entire time spent commuting
between home and work in a company van is "an integral part of
their jobs" for which they must be paid.
¶7 Mr. Kieninger filed a complaint with the Wisconsin
Department of Workforce Development (the "DWD") claiming
entitlement to unpaid wages based on his commute time in a
company van. The DWD dismissed the claim. Mr. Kieninger
reprised his claim in a complaint filed in the Dane County
Circuit Court, in which he proposed to represent a class
comprising all similarly-situated Crown Technicians. He amended
his complaint to add Mr. Meek as a named party, and the circuit
court subsequently certified the class pursuant to Wis. Stat.
§ 803.08 (2013-14).3 The parties filed competing motions for
summary judgment on the question of whether commute time in a
company-provided vehicle is compensable. They each assured the
3 All subsequent references to the Wisconsin Statutes are
to the 2017-18 edition unless otherwise specified.
4
No. 2017AP631
circuit court that the case presented no genuine issue as to any
material fact.
¶8 The circuit court granted Crown's motion. It reasoned
that it must interpret Wisconsin's labor laws consistently with
federal labor laws. Because it concluded that the federal
Employee Commuting Flexibility Act (the "ECFA")4 definitively
answered the question, it adopted a conforming interpretation of
Wisconsin's labor regulations and dismissed the complaint.
Messrs. Kieninger and Meek——we will refer to them collectively
as "Mr. Kieninger" unless the context requires otherwise——
appealed.
¶9 The court of appeals disagreed with the circuit
court's use of the ECFA to develop an interpretation of
Wisconsin's regulations. See Kieninger v. Crown Equipment
Corp., No. 2017AP631, unpublished slip op., ¶21 (Wis. Ct. App.
Jan. 18, 2018) ("Crown does not convincingly explain why ECFA
language——wording that was not adopted by the Wisconsin
Legislature——should control over the language actually in
place."). As to whether Wisconsin's statutes and regulations——
without reference to federal law——require payment for commuting
time in a company-provided vehicle, the court of appeals said it
was "uncertain whether under the correct standard there might be
one or more genuine issues of material fact," id., ¶3, and so
reversed the circuit court and remanded for further briefing.
Crown petitioned for review.
4
29 U.S.C. § 254 (2012).
5
No. 2017AP631
¶10 We agree with the court of appeals that the ECFA does
not guide our application of Wisconsin law in this case.
However, we do not agree that further briefing is necessary, or
that there may be a genuine dispute as to a material fact. We
conclude that Crown is entitled to summary judgment in its
favor, and so we reverse the court of appeals.
II. STANDARD OF REVIEW
¶11 We review the disposition of a motion for summary
judgment de novo, applying the same methodology the circuit
courts apply. Green Spring Farms v. Kersten, 136 Wis. 2d 304,
315, 401 N.W.2d 816 (1987); see also Borek Cranberry Marsh, Inc.
v. Jackson Cty., 2010 WI 95, ¶11, 328 Wis. 2d 613, 785
N.W.2d 615 ("We review the grant of a motion for summary
judgment de novo . . . ."). First, we "examine the pleadings to
determine whether a claim for relief has been stated." Green
Spring Farms, 136 Wis. 2d at 315. Then, "[i]f a claim for
relief has been stated, the inquiry . . . shifts to whether any
factual issues exist." Id. Summary judgment is appropriate
only "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law." Wis. Stat. § 802.08(2) (2015-16); see also Columbia
Propane, L.P. v. Wis. Gas Co., 2003 WI 38, ¶11, 261 Wis. 2d 70,
661 N.W.2d 776 (citing Wis. Stat. § 802.08(2) (2001-02)).
¶12 In the course of this opinion, we will consider the
meaning and application of various statutes and regulations.
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No. 2017AP631
These are questions of law that we review de novo. State v.
Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346 ("The
interpretation and application of a statute present questions of
law that this court reviews de novo . . . ."); United Food and
Commercial Workers Union Local 1473 v. Hormel Foods Corp., 2016
WI 13, ¶30, 367 Wis. 2d 131, 876 N.W.2d 99 ("Interpretation and
application of a regulation is ordinarily a question of law that
this court determines independently of the circuit court or
court of appeals . . . .").
III. ANALYSIS
¶13 Mr. Kieninger tells us the Guidelines unlawfully
relieve Crown of the obligation to pay him for the entirety of
the time he spends commuting between home and work in a company-
provided vehicle. Because he based his claim on Wisconsin's
laws,5 we will rely on that authority to decide this case, unless
federal law dictates a different result. Our analysis,
therefore, will begin where it must——with what Wisconsin's
statutes and regulations require in these circumstances.
Afterwards, we will determine whether federal law proscribes
what Wisconsin prescribes.
5
The amended complaint alleges two counts against Crown:
(1) violation of Wisconsin wage payment laws under Wis. Stat.
§§ 104.02, 109.03 and Wis. Admin Code § DWD 272.03 (Feb. 2009),
and (2) violation of Wisconsin overtime compensation law under
Wis Stat. §§ 103.02, 109.03 and Wis. Admin. Code § DWD 274.03.
He did not include any federal claims.
7
No. 2017AP631
¶14 Our responsibility is to ascertain and apply the plain
meaning of the statutes as adopted by the legislature. To do
so, we focus on their text, context, and structure.
"[S]tatutory interpretation 'begins with the language of the
statute,'" and we give that language its "common, ordinary, and
accepted meaning." State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110
("Context is important to meaning. So, too, is the structure of
the statute in which the operative language appears. Therefore,
statutory language is interpreted in the context in which it is
used; not in isolation but as part of a whole; in relation to
the language of surrounding or closely-related
statutes . . . ."). In performing this analysis, we carefully
avoid ascribing an unreasonable or absurd meaning to the text.
Id., ¶46 ("[S]tatutory language is interpreted . . . reasonably,
to avoid absurd or unreasonable results."). If we determine the
statute's plain meaning through this methodology, we go no
further. Kalal, 271 Wis. 2d 633, ¶45 ("If the meaning of the
statute is plain, we ordinarily stop the inquiry." (internal
marks and citation omitted)); see generally Daniel R. Suhr,
Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969 (2017).6
6These rules of interpretation apply with equal force to
administrative regulations: "When interpreting administrative
regulations the court uses the same rules of interpretation as
it applies to statutes." United Food and Commercial Workers
Union Local 1473 v. Hormel Foods Corp., 2016 WI 13, ¶30, 367
Wis. 2d 131, 876 N.W.2d 99.
8
No. 2017AP631
A. Wisconsin and the Payment of Commuting Time
¶15 Mr. Kieninger says Crown's duty to pay him for
commuting time arises from the statutory mandate that "[e]very
employer shall . . . pay to every employee engaged in the
employer's business . . . all wages earned by the
employee . . . ." Wis. Stat. § 109.03(1).7 Essentially, Mr.
Kieninger claims that his workday commences the moment he leaves
home, at the beginning of a shift, because he is transporting
Crown's tools to a jobsite. Similarly, he says his workday does
not end until he reaches home because he is still carrying the
tools. Crown says that commuting between home and work is no
part of its business, and so it has no duty to pay Technicians
for time spent doing so.
¶16 The statute on which Mr. Kieninger relies is, of
course, insufficiently specific to resolve the parties'
divergent positions, so we look to the relevant administrative
regulations.8 The DWD provides several guideposts that help us
identify wages earned by the Technicians. Here, we learn that
wages accrue when employees are engaged in "physical or mental
7 Employers may not contractually avoid this obligation.
See Wis. Stat. § 109.03(5) ("[N]o employer may by special
contract with employees or by any other means secure exemption
from this section.").
8 "Administrative rules enacted pursuant to statutory
rulemaking authority have the force and effect of law in
Wisconsin." Staples v. DHSS, 115 Wis. 2d 363, 367, 340
N.W.2d 194 (1983).
9
No. 2017AP631
exertion (whether burdensome or not) controlled or required by
the employer and pursued necessarily and primarily for the
benefit of the employer's business." Wis. Admin. Code. § DWD
272.12(1)(a)1 (Feb. 2009). (internal marks omitted). These
exertions take place within a "workday," which comprises:
[T]he period between the time on any particular
workday at which such employee commences their
principal activity or activities and the time on any
particular workday at which they cease such principal
activity or activities. The "workday" may thus be
longer than the employee's scheduled shift, hours,
tour of duty, or time on the production line. Also,
its duration may vary from day to day depending upon
when the employee commences or ceases their
"principal" activities.
§ DWD 272.12(1)(a)2. (some internal marks omitted).9 The
"principal activities" of which a workday consists "include[]
all activities which are an integral part of a principal
activity." § DWD 272.12(2)(e)1. Tasks "integral" to a
principal activity encompass "those closely related activities
which are indispensable to its performance." § DWD
272.12(2)(e)1.c.
¶17 Distilling this guidance into a workable framework
tells us that an employee's activity is compensable if it takes
place during a workday (that is, it is part of the employee's
principal activities, or is closely related and indispensable to
them), it involves physical or mental exertion controlled or
required by the employer, and it is necessarily and primarily
9
"Compensable time is defined in the regulations in terms
of a 'workday.'" Hormel Foods Corp., 367 Wis. 2d 131, ¶40.
10
No. 2017AP631
done for the benefit of the employer's business. Before we may
apply that framework to the claim at issue here, however, we
must account for the special rules specifically related to
travel time.
¶18 The DWD has adopted "principles which apply in
determining whether or not time spent in travel is working
time . . . ." Wis. Admin. Code § DWD 272.12(2)(g)1. One of
those principles is that time spent commuting between home and
work is not compensable:
An employee who travels from home before their regular
workday and returns to their home at the end of the
workday is engaged in ordinary home to work travel
which is a normal incident of employment. This is true
whether they work at a fixed location or at different
job sites. Normal travel from home to work is not work
time.
§ DWD 272.12(2)(g)2. The regulations draw a sharp distinction
between this type of travel and travel that is a principal
activity (for which an employee earns wages). For example,
traveling between jobsites is clearly compensable: "Time spent
by an employee in travel as part of their principal activity,
such as travel from job site to job site during the workday,
must be counted as hours worked." § DWD 272.12(2)(g)5. And if
Mr. Kieninger had opted to drive his personal vehicle to a Crown
branch, his time spent driving Crown's van between the branch
and the jobsites would also unquestionably accrue wages:
Where an employee is required to report at a meeting
place to receive instructions or to perform other work
there, or to pick up and to carry tools, the travel
from the designated place to the workplace is part of
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No. 2017AP631
the day's work, and must be counted as hours worked
regardless of contract, custom, or practice.
Id.
¶19 However, in an illustration that almost perfectly
describes the option Mr. Kieninger actually chose, the DWD says
the time spent driving between home and a worksite is not
compensable.
If an employee normally finished their work on the
premises at 5 p.m. and is sent to another job which
they finish at 8 p.m. and is required to return to
their employer's premises arriving at 9 p.m. all of
the time is working time. However, if the employee
goes home instead of returning to their employer's
premises, the travel after 8 p.m. is home-to-work
travel and is not hours worked.
Id. Presumably, the same principle applies to travel at the
other end of the day. That is, if an employee drives directly
from home to a jobsite at the beginning of his shift, he is
similarly engaged in non-compensable "home-to-work" travel.
¶20 The only difference between the regulation's
illustration and the circumstances of this case is that Crown
allows its Technicians to engage in "home-to-work" travel in a
company vehicle. Whether the employee is in a personal or a
company vehicle, he is doing the exact same thing, and no one
disputes that the time at issue would not be compensable if Mr.
Kieninger had driven his own automobile. So Mr. Kieninger must
explain why the difference in the vehicle's ownership moves his
commute time out of the regulation's non-compensable category.
The sole distinction he offers is that the vehicle he drives to
and from his home carries "tools that are integral and
12
No. 2017AP631
indispensable to a principal activity." He cites only Wis.
Admin. Code § DWD 272.12(2)(g)5. to explain the significance of
this distinction. But as we describe below, when he quoted the
regulation's language he elided the text that demonstrates this
provision does not apply to his commute.
¶21 The regulation upon which Mr. Kieninger relies
describes a two-leg journey and explains why only the second leg
represents compensable travel time. The first leg comprises
travel from the employee's home to a "meeting place" designated
by the employer. The second leg involves travel from the
meeting place to the employee's job site. Mr. Kieninger's
understanding of this regulation, however, entirely omits the
first leg. His quote reads as follows: "Where an employee is
required to . . . pick up and to carry tools, the travel from
the designated place to the workplace is part of the day's work,
and must be counted as hours worked regardless of contract,
custom, or practice." The opening clause of that sentence,
which identifies the first leg, actually says this: "Where an
employee is required to report at a meeting place . . . ." Wis.
Admin. Code § DWD 272.12(2)(g)5. (emphasis added). Mr.
Kieninger, however, is not required to "report at a meeting
place" to pick up and carry tools. He simply drives from his
home to the first jobsite of the day. So his one-leg commute
does not match the two-leg travel described by this part of
§ DWD 272.12(2)(g)5.
¶22 This regulation actually describes the circumstances
of Technicians who, unlike Mr. Kieninger, do not commute in
13
No. 2017AP631
Crown's vans. A Technician who travels from home to a Crown
branch to pick up the company vehicle (and its associated tools
and parts), is on the first leg of the journey described by Wis.
Admin. Code § DWD 272.12(2)(g)5. No wages accrue for this time.
However, travel from the Crown branch to the customer's location
(the second leg) would be compensable under this provision.
Because Mr. Kieninger's commute does not fit this pattern, § DWD
272.12(2)(g)5. does not transform his commute into compensable
time.
¶23 So the regulations whittle down Mr. Kieninger's
position to this: He must be paid for his commute because the
tools in Crown's vans are integral and indispensable to a
principal activity, to wit, repairing forklifts.10 But if
bringing along the resources necessary to perform one's job is
sufficient to make travel between home and work compensable, his
argument proves much too much, and transforms virtually every
commute into a wage-earning event. A paralegal who goes home in
the evening with a company-provided computer and then travels
the next day to a witness's location to conduct an interview is
transporting the resources necessary to do his job. So is every
office-worker who brings a file home after work, and then
returns it the next morning. And, because there is no logical
10
Authority for this proposition does not come from Wis.
Admin. Code § DWD 272.12(2)(g)5., but instead from § DWD
272.12(2)(e)1. and § DWD 272.12(2)(e)1.c., which define what is
integral and indispensable to a principal activity.
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No. 2017AP631
limit to Mr. Kieninger's argument, so too is anyone who merely
drives to his regular place of employment each morning. An
employee creates value for his employer, of course, by bringing
his physical and mental resources to bear on the company's
business. So, according to Mr. Kieninger's logic, all employees
would have to be paid for their commutes because conveying an
employee's physical and mental resources to the office is
integral and indispensable to a principal activity, to wit,
whatever they were hired to do.
¶24 The tools and parts in Crown's vans may be absolutely
necessary for the repair of forklifts, but they are meaningless
without a Technician who can expertly manipulate them to the
desired end. Mr. Kieninger can say nothing about the
indispensability of the tools that could not be said equally of
him. So if he is right, if transporting the necessaries to the
jobsite makes the travel compensable, then he is entitled to
wages regardless of the tools the van carries because no repairs
could happen without his personal presence. And that would mean
that conveying himself from home to the customer's location is
integral or indispensable to the principal activity of repairing
forklifts. But according to our statutes and regulations, that
simply is not the rule. Wis. Admin. Code § DWD 272.12(2)(g)2.
("Normal travel from home to work is not work time.").
¶25 With these specific, travel-related regulations in
mind, we can return to the framework described above. We cannot
conclude that conveying company tools from an employee's home to
his jobsite, without more, makes his travel time "an integral
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No. 2017AP631
part of a principal activity" within the meaning of Wis. Admin.
Code § DWD 272.12(2)(e)1., or a "closely related" activity that
is "indispensable to its performance" within the meaning of
§ DWD 272.12(2)(e)1.c. To hold otherwise would make every
employee's commute a compensable event. Consequently, this
travel does not take place during a "workday," as defined by
§ DWD 272.12(1)(a)2. And that means time spent in travel
between home and work in Crown-supplied vehicles does not give
rise to "wages earned by [an] employee" as set forth in Wis.
Stat. § 109.03(1).
B. Federal Authorities
¶26 Both Mr. Kieninger and Crown tell us we must construe
our regulations consistently with federal authorities. But they
direct us to different sources. Mr. Kieninger prefers opinions
of federal courts construing the pre-ECFA Fair Labor Standards
Act (the "FLSA"). He says these cases——and regulations
identical to our own——teach that his type of commute is
compensable. Crown, on the other hand, says we can dispense
with those federal opinions because they have all been
superseded by the ECFA. We should read that act, Crown says, as
a clarification of the FLSA and the regulations relating to
commuting time. And because our regulations mimic their federal
counterparts, Crown concludes that this clarification
necessarily clarifies our regulations, too. We will begin with
the federal opinions on which Mr. Kieninger relies.
¶27 It is true that one federal court (of which we are
aware) has arrived at a conclusion contrary to the one we reach
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No. 2017AP631
today. We do not take this lightly——the federal judiciary can,
and often does, provide helpful insights when it analyzes
federal provisions analogous to our own. Luckett v. Bodner,
2009 WI 68, ¶29, 318 Wis. 2d 423, 769 N.W.2d 504 ("When 'a state
rule mirrors the federal rule, we consider federal cases
interpreting the rule to be persuasive authority.'"); see also
State v. Leach, 124 Wis. 2d 648, 670, 370 N.W.2d 240 (1985).
They may not, of course, make any binding pronouncements on the
meaning of Wisconsin's laws. Daanen & Janssen, Inc. v.
Cedarapids, Inc., 216 Wis. 2d 395, 400, 573 N.W.2d 842 (1998)
("This court is not bound by a federal court's interpretation of
Wisconsin law."). Much less may their opinions construing
analogous federal provisions control a state's understanding of
its own statutes and regulations. We have considered the
opinions of our federal counterparts on this question, but for
the following reasons we are not persuaded they should direct
our analysis.
¶28 We need not spend much time on the federal court of
appeals opinions Mr. Kieninger brought to our attention because
none of them addressed the question we must answer. They
considered the compensability of travel between an employer's
location and various job sites, not the time spent traveling
from an employee's home to a jobsite. That's a closely related
question, but it is not the same. For example, D A & S Oil Well
Servicing, Inc. v. Mitchell, 262 F.2d 552, 555 (10th Cir. 1958),
involved an employer who compensated employees for travel
between its base of operations and jobsites, but not the return
17
No. 2017AP631
trip to the base. The court concluded the employer must pay for
both. Id. But it never mentioned travel between the employee's
home and the employer's base. In Crenshaw v. Quarles Drilling
Corp., 798 F.2d 1345, 1350 (10th Cir. 1986), the employer sent
the employee to jobsites across several states. The court was
silent with respect to whether the travel occurred between the
employee's home and one of the far-flung locations. But it
based its conclusion on the rationale it previously expressed in
D A & S Oil Well Servicing, which applied to travel between an
employer's location and a jobsite. As with the employees in D A
& S Oil Well Servicing, the employee in Secretary of Labor v. E.
R. Field, Inc., 495 F.2d 749, 751 (1st Cir. 1974), sought
compensation for travel between his employer's business location
and a remote jobsite. The court concluded the time was
compensable, but said nothing about traveling between an
employee's home and a jobsite.11
¶29 One of the federal district courts cited by Mr.
Kieninger actually has addressed the question before us, and it
does disagree with our conclusion. However, its analysis failed
11
Similarly, many of the federal district court cases Mr.
Kieninger cited addressed themselves to the question of whether
travel between an employer's location and a jobsite is
compensable, not the time between home and a jobsite.
McLaughlin v. Somnograph, Inc., No. Civ.A.04-1274-MLB, 2005 WL
3489507 (D. Kan. Dec. 21, 2005); Dole v. Enduro Plumbing, Inc.,
No. 88-7041-RMT(KX), 1990 WL 252270 (C.D. Cal. Oct. 16, 1990);
Marshall v. Boyd, No. LR-C-7-4, 1979 WL 1922 (E.D. Ark. April 4,
1979); Spencer v. Auditor of Public Accounts, No. 88-54, 1990 WL
8034, (E.D. Ky. Jan. 30, 1990).
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No. 2017AP631
to account for regulatory material directly bearing on this
issue, and so it provides an unsure foundation upon which to
base our reasoning. The plaintiffs in Baker v. GTE North, Inc.
presented exactly the same issue as Mr. Kieninger——the
compensability of their travel time between home and a jobsite
while carrying the tools necessary to do their jobs. The court
said the commuting time was compensable because "driving is
principal if it is done 'as part of the regular work of the
employees in the ordinary course of business,' and is 'necessary
to the business and is performed by the employees, primarily for
the benefit of the employer, in the ordinary course of that
business.'" 927 F. Supp. 1104, 1114 (N.D. Ind. 1996) (quoting
Dunlop v. City Elec., Inc., 527 F.2d 394, 400-401 (5th Cir.
1976)), rev’d on other grounds, 110 F.3d 28 (7th Cir. 1997).
But Dunlop is not the only authority the Baker court should have
consulted. A pertinent federal regulation provided:
Time spent by an employee in travel as part of his
principal activity, such as travel from job site to
job site during the workday, must be counted as hours
worked. Where an employee is required to report at a
meeting place to receive instructions or to perform
other work there, or to pick up and to carry tools,
the travel from the designated place to the work place
is part of the day's work, and must be counted as
hours worked regardless of contract, custom, or
practice. If an employee normally finishes his work on
the premises at 5 p.m. and is sent to another job
which he finishes at 8 p.m. and is required to return
to his employer's premises arriving at 9 p.m., all of
the time is working time. However, if the employee
goes home instead of returning to his employer's
premises, the travel after 8 p.m. is home-to-work
travel and is not hours worked.
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No. 2017AP631
29 C.F.R. § 785.38. This is virtually identical to Wis. Admin.
Code § DWD 272.12(2)(g)5., the regulation that was the main
driver of our analysis. That it is identical should come as no
surprise, inasmuch as it was, apparently, the genesis of
Wisconsin's own regulation.12 What does come as a surprise is
that not only did it not find a central place in the analysis,
the court never even mentioned it.
¶30 By failing to distinguish between home-to-jobsite
travel on the one hand, and on the other home-to-employer-to-
jobsite travel, the Baker court adopted (perhaps unknowingly)
the logically-unlimited argument Mr. Kieninger offered here. It
concluded that carrying the tools necessary to perform the
employee's work made the travel an "integral and indispensable"
part of the employee's principal activity.13 But because
conveying the employee himself to the jobsite is no less
necessary to perform his work, the Baker court's logic would
make the employees' commute compensable even if they transported
nothing but themselves. The antidote to this argument, at the
federal level, is 29 C.F.R. § 785.38. If the court had
accounted for its provisions, as we did in assessing Wis. Admin.
Code § DWD 272.12(2)(g)5., it may have recognized the unintended
12
The federal regulation (29 C.F.R. § 785.38) was adopted
in 1961. See 26 Fed. Reg. 194 (Jan. 11, 1961) (to be codified
at 29 C.F.R. § 785.38). Wisconsin adopted its counterpart
(§ DWD 272.12(2)(g)5.) over 17 years later. 271B Wis. Admin.
Reg. 32-4 (July 31, 1978).
13 See supra note 11.
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No. 2017AP631
consequences of its reasoning. We are not persuaded by Baker v.
GTE North, Inc.
¶31 Crown, on the other hand, says all federal cases
addressing commuting time prior to 1996 are no longer
controlling. Instead, it proposes we follow its somewhat
labyrinthine argument to the conclusion that Congressional
adoption of the ECFA in 1996 controls the disposition of this
case. We can certainly understand why Crown believes it should—
—the ECFA's text gives its position a nice assist. That Act
provides:
[T]he use of an employer's vehicle for travel by an
employee and activities performed by an employee which
are incidental to the use of such vehicle for
commuting shall not be considered part of the
employer's principal activities if the use of such
vehicle for travel is within the normal commuting area
for the employer's business or establishment and the
use of the employer's vehicle is subject to an
agreement on the part of the employer and the employee
or representative of such employee.
29 U.S.C. § 254(a). But Crown's argument depends on the
unusual assertion that a Congressional act post-dating
Wisconsin's labor regulations can somehow retroactively change
their meaning.14 It says the high degree of correlation between
Wisconsin and federal labor regulations (at least with respect
14The provision at issue here, Wis. Admin. Code § DWD
272.12, was originally adopted in 1978 as Wis. Admin. Code § Ind
72.12. See Wisconsin Department of Workforce Development
Timeline History: 1883-Present,
https://dwd.wisconsin.gov/dwd/dwdhistory/.
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No. 2017AP631
to the compensability of commuting time) demonstrates that the
DWD intended our regulations on this subject to always move in
lockstep with their federal analogs. Inasmuch as the DWD has
not adopted something similar to the ECFA, Crown's argument
depends on this movement occurring even without any state-level
rule-making activity. There are circumstances in which the DWD
may wish our laws to track federal law; it said as much when it
adopted exemptions to overtime pay requirements. See Wis.
Admin. Code § DWD 274.04 ("[T]hese exemptions shall be
interpreted in such a manner as to be consistent with the
Federal Fair Labor Standards Act and the Code of Federal
Regulations as amended . . . .").15 However, there is no
15In construing Wis. Admin. Code § DWD 274.04, the court of
appeals said in Madely v. Radioshack Corp., 2007 WI App 244,
¶13, 306 Wis. 2d 312, 742 N.W.2d 559, that "Wisconsin's
administrative regulations are to be interpreted in such a
manner as to be consistent with the Federal Fair Labor Standards
Act (FLSA) and the Code of Federal Regulations . . . ." But in
a subsequent case, it acknowledged that "we do not read Madely
as standing for the proposition that all Wisconsin
administrative regulations must be interpreted in lock step with
the FLSA and the CFR." Weissman v. Tyson Prepared Foods, Inc.,
2013 WI App 109, ¶44, 350 Wis. 2d 380, 838 N.W.2d 502).
Instead, Madely's statement was inspired by the text of § DWD
274.04:
[T]he code provision at issue in Madely explicitly
directed interpretation "consistent with the [FLSA]
and the [CFR] as amended." This significant "lock
step" directive, lacking in the code provisions at
issue here, appears to be the basis for our statement
in Madely that Wisconsin's administrative regulations
are to be interpreted consistent with the FLSA and the
CFR.
Id. (Brackets in original.).
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No. 2017AP631
corresponding linkage between § DWD 272 and the FLSA or the
CFRs, or any other federal law. We will not create one.
Consequently, the ECFA plays no part in our analysis of this
case.16
*
¶32 Our holding is limited, and applies only to
circumstances in which an employee drives a company-provided
vehicle between home and a jobsite. It does not disturb the
compensability of travel between an employer's location and a
jobsite, or between jobsites. See Wis. Admin. Code § DWD
272.12(2)(g)5. ("Time spent by an employee in travel . . . from
job site to job site during the workday, must be counted as
hours worked. Where an employee is required to report at a
meeting place to receive instructions or to perform other work
there, or to pick up and to carry tools, the travel from the
16Our analysis would be different, of course, if the ECFA
had explicitly or by necessary implication pre-empted a relevant
part of Wisconsin's law. The Supremacy Clause of the United
States Constitution ensures that federal law takes precedence
over contrary state provisions:
Article VI, cl. 2, of the Constitution provides that
the laws of the United States "shall be the supreme
Law of the Land; . . . any Thing in the Constitution
or Laws of any state to the Contrary notwithstanding."
Consistent with that command, we have long recognized
that state laws that conflict with federal law are
"without effect."
Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008).
23
No. 2017AP631
designated place to the workplace is part of the day's
work . . . .").
IV. CONCLUSION
¶33 We hold that neither Wis. Stat. § 109.03(1) nor DWD's
related regulations require Crown to pay an employee for the
time he spends driving a tool-laden, company-provided vehicle
between his home and an assigned jobsite. Therefore, we reverse
the court of appeals.17
By the Court.—The decision of the court of appeals is
reversed.
17The court of appeals rejected Crown's reliance on the
ECFA for guidance in interpreting Wisconsin's statutes, and so
reversed the circuit court's judgment. However, it also said
"we lack sufficient adversarial briefing on the correct
Wisconsin standard and, additionally, we are uncertain whether
under the correct standard there might be one or more genuine
issues of material fact." Kieninger, No. 2017AP631, unpublished
slip op., ¶3. So it remanded the matter for further briefing.
Neither party has asserted (in this court) that it wants an
opportunity to submit additional briefing on this subject, and
we see no such need. Nor have they suggested to us that there
is any genuine dispute as to a material fact. That is
consistent with their cross-motions for summary judgment in the
circuit court, in which they originally asserted this case
presents no genuine dispute as to a material fact. We conclude,
therefore, that there is no reason to remand this matter for
further proceedings.
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No. 2017AP631
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