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. 

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.
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

¶ 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.
2

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 
3

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 
4

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.
5

 Interstate trips were “indiscriminately and randomly 

distributed among its drivers.”

 Employees “could have been called upon to travel out-ofstate 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.
6

 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 
7

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.
8

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 
9

“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 
10

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. 
11

¶ 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).
12

¶ 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 
13

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 
14

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 
15

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, 
16

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 
17

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 
18

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 
19

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 
20

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 
21

¶ 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.
22

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.
23

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.