NO. 82-510 

IFJ THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

IN THE MATTER OF THE WAGE CLAIM OF 

PERCY HOEHNE , 

Claimant and Respondent, 

SHERRODD, IKC . , 

Appellant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Towe, Ball, Enright & Mackey; Neil D. Enright, 

Billings, Montana 

For Respondent : 

Radovich & Johnson; George Radovich, Billings, 

Montana 

Paul Van Tricht, Dept. of Labor & Industry, 

Helena, Montana 

Filed: 

Submitted on Briefs: June 2, 1983 

Decided: August 18,1983 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Sherrodd, Inc., appeals the Yellowstone County 

District Court dismissal of its petition for judicial review 

of the Department of Labor and Industry ruling, awarding 

Percy Hoehne, respondent and former employee of Sherrodd, 

overtime compensation plus a penalty. We affirm. 

Sherrodd was in the business of providing heavy 

equipment and personnel to operate such equipment to various 

oil companies. Hoehne was employed by Sherrodd from May 

1981 until January 1982 to operate heavy equipment at a rate 

of $10 per hour. During this period of time Hoehne was a 

Montana resident and Sherrodd was a Hontana corporation with 

its principal place of business in Montana. Hoehne sometimes 

worked in North Dakota but no actual records were kept 

indicating the amount of work done there. 

Hoehne claimed that he accumulated many overtime hours 

but was not paid the overtime rate for such hours. He filed 

a wage claim with the Labor Standards Division of the 

Montana Department of Labor and Industry and a hearing was 

held on June 22, 1982. On July 26, 1982, the Department 

ruled in Hoehne's favor, finding that he worked 349 overtime 

hours and awarded him $1,745 in compensated overtime. 

Further, he was awarded a penalty of $1,745 as the overtime 

wages had been due in excess of the statutory time period as 

set forth in section 39-3-206, MCA. 

Sherrodd timely filed a petition for judicial review 

of the Department's ruling in Yellowstone County District 

Court. The Department moved to dismiss the amended petition 

and on October 29, 1982, the District Court granted the 

motion on the basis of the agency record. Sherrodd brings 
this appeal and raises two issues for consideration: 

1. Did the Commissioner of the Montana Department of 

Labor and Industry have jurisdiction to decide the wage 

claim in question? 

2. Is the claimant estopped from claiming overtime 

wages? 

Sherrodd first contends that the Montana Department of 

Labor and Industry did not have jurisdiction to rule on 

Hoehne's wage claim as he often worked in North Dakota. 

Further, there was no official request from North Dakota 

authorizing Montana to proceed on Hoehne's wage claim 

pursuant to section 39-3-305, MCA. 

The Department asserts that it had jurisdiction to 

enforce Montana laws with respect to Hoehne's claim because 

both the employee and the employer were residents of Montana 

and Sherrodd's principal place of business was within 

Montana. Further, the employment contract was entered into 

in Montana and part of the work in question was performed 

here. The employer's records did not indicate the amount of 

work done in each state. Finally, Sherrodd was subject to 

the Fair Labor Standards Act of 1938 (FLSA) and the Department had clear authority to enforce the federal act. 

The Department of Labor and Industry has a statutory 

duty to enforce Montana wage laws affecting Montana 

citizens. Section 39-1-102, MCA. The Commissioner of Labor 

must investigate violations of Montana wage laws and 

institute actions for unpaid wages. Section 39-3-209, MCA. 

The commissioner may take assignments of wage claims in 

trust for the claimant and maintain any proceeding to 

enforce such claim. Section 39-3-211, MCA. 
The Department may also enforce the provisions of the 

FLSA, requiring minimum wages and overtime pay. In State v. 

Holman Aviation Co. (1978), 176 Mont. 31, 575 P.2d 923, this 

Court held that the Department may institute a civil action 

on behalf of employees to recover unpaid overtime wages due 

under the FLSA. We stated: 

"The Montana Department of Labor was 

authorized by both the Montana legislature, through section 41-1314.2, R.C.M. 

(1947) [section 39-3-202, 211, 214(2)(3), 

MCA], and by the United States Congress, 

through the FLSA and 29 CFR 515.8, to 

institute civil actions on behalf of 

employees . . . to recover unpaid FLSA 

wages." 176 at 36, 375 P.2d at 926. 

In the present case it is clear that the Department 

was performing its statutory duty enforcing Montana's wage 

laws protecting Hoehne, a Montana resident. Such laws 

regulate Montana corporations, like Sherrodd, and require 

them to pay minimum and overtime wages. Also, the FLSA 

protects all citizens and the Department acted within its 

authority enforcing it here. State v. Holman Aviation Co., 

supra. The Montana Department of Labor and Industry acted 

within its jurisdiction in adjudicating Hoehne's claim for 

overtime wages. 

We also note that Rule 4(b) (I), M.R.Civ.P., gives the 

courts of Montana jurisdiction over all persons within the 

State of Montana. This is a codification of traditional 

concepts of jurisdiction that subject all persons within a 

state's boundaries to that state's jurisdiction. We hold 

that under the traditional notions of jurisdiction the 

Department properly ruled on this claim. All parties 

resided in Montana and the principal place of business of 

the employer was in Montana. Accordingly, the courts of 
Montana have proper jurisdiction to hear this case. We also 

find that when the legislature delegated judicial power to 

the Department to decide wage claims it intended that the 

Department be bound by judicial concepts of jurisdiction. 

To require an employee to pursue his wage claim in 

each state he works would unduly burden all parties 

involved. The employee would have to travel to each state 

where he worked to pursue his claim. This would lead to an 

oppressive burden on both the employee and the employer in 

many cases. For example, where a trucker hauls cargo through 

several states to reach his destination, it would require 

both the employer and the employee to go to each state to 

have a portion of a claim adjudicated. Each party may also 

need witnesses, which most likely reside in the parties' 

state of residence. Furthermore, as the Department points 

out, this would fractionalize the employee's claim to such 

an extent as to make pursuit of it not worthwhile. 

Second, Sherrodd argues that Hoehne is estopped from 

claiming overtime compensation because he failed to report 

accumulated overtime hours and did not inform Sherrodd that 

he expected overtime pay. 

Hoehne contends that overtime pay is a statutorily 

mandated public right. Therefore, it cannot be waived and an 

employee cannot be estopped from claiming it. 

This Court has held that a person may either, by 

implication or agreement, waive the advantage of a law 

intended solely for his benefit. Earl Clack Co. v. Staunton 

(1937), 105 Mont. 375, 72 P.2d 1022; Anaconda Copper Mining 

Co. v. Ravalli County (1919), 56 Mont. 530, 186 P. 332; Shea 

v. North-Butte Mining Co. (1919), 55 Mont. 522, 179 P. 499. 
Conversely, laws which are intended to protect the public in 

general cannot be waived privately, section 1-3-204, MCA, by 

either implication or agreement. Shea, supra. 

In Kopischke v. First Continental Corp. (1980), 

Mont. , 610 P.2d 668, 37 St.Rep. 437, we determined that 

public policy requires a used car dealer to inspect the cars 

he sells and to make sure they are in safe, working condition. This duty, as an expression of public policy, cannot 

be waived by the use of an "as is" clause in the sales 

contract. 

An employee's right to receive overtime pay is established in Montana state law as well as federal law. These 

laws are expressions of public policy created to protect 

workers, and restraining those from withholding overtime pay 

is vindication of a public right rather than a private 

right. Withholding wages due, such as overtime pay, is 

considered a continuing public offense. Viirtz v. Malthor, 

Inc. (9th Cir. 1960), 391 F.2d 1, cited in State ex rel. 

Neiss v. District Court (1973), 162 Mont. 324, 511 P.2d 979. 

Since overtime premiums are for the protection and benefit 

of the general public, private waiver is contrary to public 

policy. Neiss, 162 Mont. at 328, 511 P.2d 981; section 

1-3-204, MCA. 

In Brooklyn Savings Bank v. O'Neil (1945), 324 U.S. 

697, 65 S.Ct. 895, 89 L.Ed. 1296, the United States Supreme 

Court interpreted the federal counterpart to the Montana 

minimum wage and overtime requirements, section 16(b) of the 

FLSA. The Supreme Court held that the intent of the legislature in passing the FLSA was to prevent an employee's 

contractual waiver of his right to minimum wages and 
overtime and thereby prevent waiver of liquidated damages 

for withholding such payments. This, the Court held, would 

nullify the purposes of the Act. 

Essentially, this Court came to a similar conclusion 

in Neiss, supra. In construing Montana's minimum wage 

requirements we held that: 

". . .since we are dealing with a public 

right, public policy demands the minimum 

wage shall be paid. Minimum wage provisions exist for the benefit of the whole 

public and a claimant of his own accord 

-- may not bargain away his statutory minimum wage. It is elementary that a law 

established for a public reason cannot be 

compromised by private agreement. Section 

1-3-209, MCA." (Emphasis added. ) 162 

Mont. at 328, 511 P.2d at 981. 

We believe that allowing a noncontractual or implied 

waiver of minimum wages or overtime payments would also 

nullify the purposes of both statutes and would be contrary 

to public policy. Consequently, we hold that one's failure 

to assert such rights does not constitute waiver. 

Nonasser tion could be the result of mere ignorance, which 

should not legitimize what we consider a continuing public 

offense or prevent vindication of an important public right. 

Hoehne is not estopped from claiming overtime pay owed to 

him from his employment with Sherrodd, Inc. 

Af f irmed. 

3A-44). pd,4 Chief Justice 
We concur: