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(2018 – unpublished) 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, 

 v. 

Crown Equipment Corporation d/b/a Crown Lift 

Trucks, LLC, 

 Defendant-Respondent-Petitioner. 

FILED 

MAR 20, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

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. 

 

1 This is a review of an unpublished decision of the court 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unpublished slip op.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 

2 

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. 

 

2 Crown 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. 
No. 2017AP631 

3 

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. 
No. 2017AP631 

4 

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. 
No. 2017AP631 

5 

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). 
No. 2017AP631 

6 

¶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. 
No. 2017AP631 

7 

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 companyprovided 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. 
No. 2017AP631 

8 

¶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

 

6 These 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. 
No. 2017AP631 

9 

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).
No. 2017AP631 

10 

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. 
No. 2017AP631 

11 

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 
No. 2017AP631 

12 

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 
No. 2017AP631 

13 

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 
No. 2017AP631 

14 

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. 
No. 2017AP631 

15 

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 
No. 2017AP631 

16 

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 
No. 2017AP631 

17 

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 
No. 2017AP631 

18 

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). 
No. 2017AP631 

19 

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. 
No. 2017AP631 

20 

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-tojobsite 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. 
No. 2017AP631 

21 

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 

 

14 The 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/. 
No. 2017AP631 

22 

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 

 

15 In 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.). 
No. 2017AP631 

23 

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 

 

16 Our 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). 
No. 2017AP631 

24 

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. 

 

17 The 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. 
No. 2017AP631 

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