     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            February 8, 2018

                                2018COA17

No. 16CA1864, Brunson v. Colorado Cab Co. ― Labor and
Industry ― Wages ― Colorado Minimum Wage Order ―
Exemptions

     In this appeal from a grant of summary judgment, a division of

the court of appeals considers whether shuttle van drivers who

transport passengers to and from Denver International Airport, but

do not drive outside of the state, are considered to be “interstate

drivers,” and thus are exempt under the Colorado Minimum Wage

Order from receiving overtime pay. The Colorado Minimum Wage

Act, the Colorado Wage Claim Act, and the Colorado Minimum

Wage Order do not define the term “interstate drivers.”

     “Interstate drivers” under federal law includes some drivers

involved in interstate commerce whose work travel is entirely within

the state. But the division concludes that the federal interpretation
of “interstate drivers” does not apply to the state claims at issue

here because the federal and state overtime pay exemptions are not

“identical or substantially so.” Relying on the Colorado Department

of Labor and Employment’s Advisory Bulletin as clear persuasive

evidence of its intent to provide greater protections than those

provided under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219

(2012), the division concludes that the term “interstate drivers” in

the Wage Order applies only to drivers whose work takes them

across state lines. It thus reverses the grant of summary judgment.
COLORADO COURT OF APPEALS                                        2018COA17


Court of Appeals No. 16CA1864
City and County of Denver District Court No. 15CV31252
Honorable Ross B. Buchanan, Judge


Daniel Brunson,

Plaintiff-Appellant,

v.

Colorado Cab Company, LLC, and Shamrock Charters, Inc.,

Defendants-Appellees.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division I
                       Opinion by JUDGE LICHTENSTEIN
                       Taubman and Kapelke*, JJ., concur

                          Announced February 8, 2018


Law Office of Brian D. Gonzales, PLLC, Brian D. Gonzales, Fort Collins,
Colorado, for Plaintiff-Appellant

Sherman & Howard, LLC, Patrick R. Scully, Matthew M. Morrison, Denver,
Colorado; Morgan, Lewis & Bockius, LLP, Christopher A. Parlo, Melissa C.
Rodriguez, Jason D. Burns, New York, New York, for Defendants-Appellees


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    This case addresses, as a matter of first impression, whether

 shuttle van drivers who transport passengers to and from Denver

 International Airport (DIA), but do not drive outside of the state, are

 considered to be “interstate drivers,” and thus are exempt, under

 the Colorado Minimum Wage Order, from receiving overtime pay.

¶2    Plaintiff, Daniel Brunson, a shuttle van driver, appeals the

 district court’s grant of summary judgment in favor of defendants,

 Shamrock Charters, Inc. and Colorado Cab Company, LLC,

 (collectively, Shamrock) on Brunson’s claim1 that Shamrock’s

 failure to pay him overtime compensation violated the Colorado

 Minimum Wage Act, section 8-6-101, et seq., C.R.S. 2017, and the

 Colorado Wage Claim Act, section 8-4-101, et. seq., C.R.S. 2017

 (the Acts).




 1 Brunson filed individual claims as well as claims on behalf of a
 putative class of persons similarly situated. Only summary
 judgment on his individual claims is at issue here. The record is
 unclear whether Brunson also worked as a driver for Colorado Cab
 Company, LLC, and our decision does not address any such
 employment.

                                    1
¶3    The Acts are implemented by Colorado Minimum Wage Order

 31 (Wage Order),2 promulgated by the Colorado Department of

 Labor and Employment (the Department). See Colo. Minimum

 Wage Order No. 31, 7 Code Colo. Regs. 1103-1 (effective Dec. 30,

 2014-Dec. 31, 2015), https://perma.cc/PTD2-TSUN (hereinafter

 Wage Order). The Wage Order regulates wages and requires certain

 employers to pay overtime compensation to its employees. As

 pertinent here, the Wage Order exempts “interstate drivers” from all

 its provisions. Wage Order § 5.

¶4    Neither the Acts nor the Wage Order implementing these Acts

 defines the term “interstate drivers.” The district court relied on

 federal law to conclude that “interstate drivers” includes drivers

 involved in interstate commerce, even if their work travel is entirely

 within the state.

¶5    But, because Colorado provides more employee protection

 than does federal law, and the Department has published clear


 2 Wage Order 31 implements the statutes for the year 2015. As of
 the date of this opinion, subsequent wage orders have been issued,
 but the relevant language has not been changed. See Colo.
 Minimum Wage Order No. 31, 7 Code Colo. Regs. 1103-1:1 (effective
 Dec. 30, 2014-Dec. 31, 2015), https://perma.cc/PTD2-TSUN
 (hereinafter Wage Order).

                                    2
 persuasive evidence of its intent to provide greater protections than

 those provided under the Fair Labor Standards Act (FLSA), 29

 U.S.C. §§ 201-219 (2012), we conclude that federal case law’s

 interpretation of “interstate drivers” does not apply to Brunson’s

 state claims. We therefore reverse the court’s summary judgment

 and remand the case for further proceedings on Brunson’s claim.

                           I.   Background

¶6    Shamrock operates the SuperShuttle van service to and from

 DIA. Brunson, as a SuperShuttle driver, transports passengers

 between DIA and their homes, hotels, or a transportation hub

 location. Brunson claims that he was entitled to overtime pay.

 Shamrock contends that Brunson was exempt from the overtime

 pay requirements of the Wage Order.

¶7    In granting summary judgment for Shamrock, the district

 court found that the Wage Order’s language closely follows the

 federal Motor Carrier Act (MCA) exemption of the FLSA. It therefore

 relied on federal case law interpreting the MCA exemption to

 conclude that although Brunson’s shuttle driving remained within

 state lines, his driving involved interstate commerce, and, thus, he




                                   3
  was an “interstate driver.” As a matter of law, therefore, Brunson

  was exempt from the Wage Order’s overtime pay requirements.

¶8     In rejecting Brunson’s state law claims, the district court

  drafted a thorough and well-reasoned summary judgment order

  interpreting the Wage Order consistent with the federal MCA

  exemption. However, Brunson contends, and we agree, that the

  federal interpretation of the MCA exemption does not apply to his

  state claims.

                        II.   Standard of Review

¶9      We review de novo the grant of a motion for summary

  judgment. Grippin v. State Farm Mut. Auto. Ins. Co., 2016 COA 127,

  ¶ 8. Summary judgment is appropriate only when there is no

  disputed issue of material fact and the moving party is entitled to

  judgment as a matter of law. C.R.C.P. 56(c); Chase v. Farmers Ins.

  Exch., 129 P.3d 1011, 1014 (Colo. App. 2004).

¶ 10   We also review administrative regulations de novo. Our

  primary task in this review is to give effect to the promulgating

  body’s intent. See Colo. Coffee Bean, LLC v. Peaberry Coffee Inc.,

  251 P.3d 9, 22 (Colo. App. 2010). In construing an administrative

  regulation, we apply the same rules of construction that we would


                                    4
  apply in interpreting a statute. Berumen v. Dep’t of Human Servs.,

  2012 COA 73, ¶ 19; see also Brinker Rest. Corp. v. Superior Court,

  273 P.3d 513, 527 (Cal. 2012) (“When a wage order’s validity and

  application are conceded and the question is only one of

  interpretation, the usual rules of statutory interpretation apply.”).

  And as with statutes, if the language of a regulation is clear and

  unambiguous, we do not resort to other rules of construction.

  Berumen, ¶ 19.

¶ 11   But if the language of a regulation or administrative rule is

  ambiguous or unclear, we may consider an agency’s interpretation

  of its own regulation or rule. Sierra Club v. Billingsley, 166 P.3d

  309, 312 (Colo. App. 2007); see also Christensen v. Harris Cty., 529

  U.S. 576, 588 (2000) (“[D]eference [to an agency’s interpretation of

  its own regulation] is warranted only when the language of the

  regulation is ambiguous.”).

¶ 12   When a promulgating body provides an interpretation

  contained in other formats, such as opinion letters, internal agency

  guidelines, manuals or bulletins — all of which lack the force of law

  — such interpretations are “entitled to respect,” but only to the

  extent that those interpretations have the “power to persuade.”


                                     5
  Christensen, 529 U.S. at 587 (citation omitted); see Preserve at the

  Fort, Ltd. v. Prudential Huntoon Paige Assocs., 129 P.3d 1015, 1020

  (Colo. App. 2004).

                             III.   Discussion

¶ 13   The General Assembly has given the Department the power to

  promulgate regulations, among them wage orders. Bonidy v. Vail

  Valley Ctr. for Aesthetic Dentistry, P.C., 186 P.3d 80, 84 (Colo. App.

  2008); see § 24-1-121(1), C.R.S. 2017. A wage order “regulates the

  ‘wages, hours, working conditions and procedures’ for certain

  employers and employees performing work in Colorado.” Chase,

  129 P.3d at 1012 (quoting Colo. Wage Order No. 22).

¶ 14   The Wage Order, by its own terms, applies only to work

  performed “within the boundaries of the state of Colorado.” Wage

  Order § 1. Among its provisions, and as relevant here, the Wage

  Order requires covered employers to pay overtime at one-and-one-

  half times the employee’s normal rate of pay. Id. § 4. The Wage

  Order also exempts several categories of employees from all its




                                      6
  provisions.3 Among those exempt, the Wage Order lists “interstate

  drivers.” Id. § 5. The Wage Order does not define who qualifies as

  an “interstate driver.”

¶ 15   When the terms at issue are not defined, we look to the plain

  meaning of the language used, considered within the context of the

  regulation as a whole. See Berumen, ¶ 19. If the plain meaning of

  the language of a regulation is clear and unambiguous, we need not

  look further. Id. But if the words chosen by the enacting body are

  capable of two or more constructions leading to different results,

  the regulation is ambiguous. See State v. Nieto, 993 P.2d 493, 500-

  01 (Colo. 2000) (discussing ambiguous statutory language).

¶ 16   When the language is ambiguous, we look beyond the express

  regulatory language for other evidence of the promulgating body’s

  intent and purpose. See Crandall v. City & Cty. of Denver, 238 P.3d

  659, 662 (Colo. 2010); Sierra Club, 166 P.3d at 312.




  3 Although the Wage Order includes a specific section titled,
  “Exemptions from Overtime,” this section does not reference
  “drivers,” other than to generally exempt employees of the medical
  transportation industry. Wage Order § 6.

                                    7
            A.    The Wage Order’s Language Is Ambiguous

¶ 17   Considered in the context of the regulation as a whole, it

  would seem reasonable to construe the categorical exemption of

  “interstate drivers” from the Wage Order’s provisions as applying

  only to drivers who cross state lines. After all, the Wage Order’s

  coverage provision states that it regulates wages for work performed

  within state boundaries. See Wage Order § 1.

¶ 18   It is also reasonable to construe the term “interstate drivers”

  as drivers whose transport — within state lines — involves

  interstate commerce.4 Since the disputed term “interstate driver” is

  susceptible of more than one reasonable meaning, it is ambiguous.

¶ 19   We therefore look beyond the express language for other

  evidence of the promulgating body’s intent and purpose. See

  Crandall, 238 P.3d at 662.




  4This latter construction, as discussed later in this opinion, is
  analogous to that employed in several federal cases interpreting the
  MCA’s overtime pay exemption of the FLSA to apply to certain
  drivers who, despite working entirely intrastate, transport goods or
  persons in interstate commerce.

                                    8
                    B.   Federal Law Is Not Instructive

¶ 20   As the district court noted, there is a body of federal law that

  interprets interstate drivers in the FLSA for purposes of the

  exemption from receiving overtime pay. Under that interpretation,

  certain drivers who work entirely within a state are considered

  interstate drivers under the MCA exemption of the FLSA, and are

  thus exempt from the federal statute’s overtime pay provisions. For

  the following reasons, we conclude that federal law is neither

  controlling nor persuasive.

¶ 21   First, it is well settled that states may provide employees with

  benefits beyond those set out in the FLSA. Idowu v. Nesbitt, 2014

  COA 97, ¶ 51. “The FLSA sets a floor, not a ceiling, on

  compensation that employees must receive.” Id. (quoting Barefield

  v. Vill. of Winnetka, 81 F.3d 704, 711 (7th Cir. 1996)); see Martinez

  v. Combs, 231 P.3d 259, 280-81 (Cal. 2010) (“Courts must give . . .

  wage orders independent effect in order to protect the commission’s

  delegated authority to enforce the state’s wage laws and, as

  appropriate, to provide greater protection to workers than federal

  law affords.”).




                                    9
¶ 22   The Department did just that here: it promulgated a wage

  order independent of the FLSA, expressly stating that the Wage

  Order shall apply instead of the FLSA when it provides greater

  protection than the FLSA affords. See Wage Order Introduction (“If

  an employee is covered by both state and federal minimum wage

  laws, the law which provides a higher minimum wage or sets a

  higher standard shall apply.”); Wage Order § 22 (addressing “Dual

  Jurisdiction”).

¶ 23   Second, exemptions, such as the overtime pay exemption,

  should be construed narrowly. See Comm’r of Internal Revenue v.

  Clark, 489 U.S. 726, 739 (1989) (where “a general statement of

  policy is qualified by an exception, we usually read the exception

  narrowly in order to preserve the primary operation of the

  provision”); see also Deherrera v. Decker Truck Line, Inc., 820 F.3d

  1147, 1161 (10th Cir. 2016) (“Because it is an exemption, the court

  should construe it narrowly.”).

¶ 24   And finally, although federal law may be instructive when

  interpreting a Colorado statute, its helpfulness is limited to those

  instances “where the state and federal statutes are identical or

  substantially so.” Colonial Bank v. Colo. Fin. Servs. Bd., 961 P.2d


                                    10
  579, 583 (Colo. App. 1998); see Colo. Civil Rights Comm’n v. Big O

  Tires, Inc., 940 P.2d 397, 399 (Colo. 1997) (federal law is helpful

  when the language of the Colorado law closely parallels that of its

  federal counterpart).

¶ 25   Here, the Wage Order’s exemption of “interstate drivers” from

  “all its provisions” does not resemble, much less closely parallel, the

  MCA overtime pay exemption to the FLSA.

¶ 26   Section 5 of the Wage Order states,

             The following employees or occupations, as
             defined below, are exempt from all provisions
             of Minimum Wage Order No. 31:
             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.

  (Emphasis added.)



                                    11
¶ 27   In contrast, the MCA exemption of the FLSA, 29 U.S.C. §

  213(b)(1) (2012), provides that the overtime pay requirement for

  employees engaged in commerce shall not apply to “any employee

  with respect to whom the Secretary of Transportation has power to

  establish qualifications and maximum hours of service.”

¶ 28   While Colorado’s Wage Order lists interstate drivers as exempt

  employees, the MCA overtime pay exemption of the FLSA does not

  list “interstate drivers” at all. Instead, the MCA exemption

  references employees involved in interstate commerce, see 29

  U.S.C. § 207 (2012), and then exempts from overtime pay “any

  employee with respect to whom the Secretary of Transportation has

  power to establish qualifications and maximum hours of service.”

  29 U.S.C. § 213(b)(1).

¶ 29   Federal courts have reviewed this language regarding the

  Secretary of Transportation’s power to determine the extent to

  which, and what type of, employees fall under the exemption.

  Several of these courts have concluded that the MCA exemption

  includes certain employees who “move goods in interstate

  commerce.” See, e.g., Foxworthy v. Hiland Dairy Co., 997 F.2d 670,

  672 (10th Cir. 1993). And this category of employees, in turn, has


                                   12
  been interpreted to include not only those involved in interstate

  travel, but also those involved in the intrastate delivery of goods if

  the essential character of the shipment is interstate in nature. See

  Deherrera, 820 F.3d at 1154-55 (interpreting the MCA overtime pay

  exemption); see also Abel v. S. Shuttle Servs., Inc., 631 F.3d 1210,

  1216 (11th Cir. 2011) (concluding that the MCA overtime pay

  exemption applies to the “intrastate transport of passengers to and

  from an airport” under certain circumstances).

¶ 30   Thus, the force of the overtime pay exemption under the MCA

  relies on the Secretary of Transportation’s power to regulate the

  maximum hours of employees engaged in interstate commerce.

  Deherrera, 820 F.3d at 1154-55. But, in Colorado, the Wage Order

  exemption does not mention the power of the Secretary of

  Transportation, much less depend on whether a driver was engaged

  in interstate commerce.

¶ 31   Given the contextual differences of the MCA exemption and

  Colorado’s Wage Order, we are not persuaded that the federal case

  law interpreting interstate driver is instructive. See N. Colo. Med.

  Ctr. v. Comm. on Anticompetitive Conduct, 914 P.2d 902, 905-06

  (Colo. 1996). We note that in Deherrera, the Tenth Circuit reached


                                     13
  an opposite conclusion. It did so by construing the exemption for

  “interstate drivers” in Colorado’s Wage Order harmoniously with the

  FLSA’s MCA exemption. There, the court supported its application

  of federal law to the Wage Order by observing that “many of the

  Wage Order’s provisions (including the overtime exemptions) are

  patterned largely after the FLSA.” Id. at 1161.

¶ 32   However, we do not perceive the similarities identified by

  Deherrera as demonstrating a sufficiently close parallel between the

  state and federal overtime pay exemption provisions. See Colonial

  Bank, 961 P.2d at 583; see also Colo. Civil Rights Comm’n, 940 P.2d

  at 399. True, as Deherrera observed, the Wage Order and the FLSA

  include exemptions that similarly list “administrative, executive,

  professional and sales employees.” 820 F.3d at 1161. Notably, the

  Wage Order includes “interstate drivers” in its list, whereas the

  FLSA does not. Also significant, the FLSA’s list of these employees

  does not appear in the federal MCA exemption for overtime pay.

  See 29 U.S.C. § 213(b)(1). Rather, the FLSA lists these employees

  in a separate exemption provision altogether. See 29 U.S.C. §

  213(a)(1).




                                    14
¶ 33   Thus, because the federal and state overtime pay exemptions

  are not “identical or substantially so,” see Colonial Bank, 961 P.2d

  at 583, we are not persuaded to “accord great weight” to the federal

  construction of the MCA exemption. See Deherrera, 820 F.3d at

  1161.

¶ 34   For these reasons, we decline to adopt the district court’s

  reliance on federal case law, and more specifically its reliance on

  the Tenth Circuit’s Deherrera opinion. Even the Tenth Circuit has

  observed that “Deherrera’s understanding of Colorado law could, of

  course, be reexamined in light of subsequent relevant state court

  decisions.” Combs v. Jaguar Energy Servs., LLC, 683 F. App’x 704,

  708 (10th Cir. 2017); see also Dillabaugh v. Ellerton, 259 P.3d 550,

  553 (Colo. App. 2011) (“We are not required to follow an

  intermediate federal court’s interpretation of state law.”).

¶ 35   Because we have determined that the federal case law does

  not provide persuasive authority as to the meaning of “interstate

  driver,” we instead rely on the Department’s interpretation of its

  own regulation.




                                     15
                C.   Deference to Agency’s Interpretation

¶ 36   Here, the promulgating body — the Department — published

  an advisory bulletin to “discharg[e] its statutory duty of educating

  and assisting Colorado employees, employers and the general

  public on Colorado labor and employment laws and related

  workplace topics.” Colo. Div. of Labor, Advisory Bulletins and

  Resource Guide Foreword (Mar. 31, 2012), https://perma.cc/7PLA-

  ZTRD (hereinafter Advisory Bulletin). As pertinent here, the

  Advisory Bulletin separately defines “interstate driver” and

  intrastate driver for purposes of determining coverage and

  exemptions under the Wage Order. Id. § 22(I).

¶ 37   To be sure, 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). Indeed, as the Advisory Bulletin itself states, it is not “an

  official record of action or law.” Advisory Bulletin Foreword.

  Nonetheless, the interpretation in the Advisory Bulletin is “entitled

  to respect” to the extent it has the “power to persuade.”




                                     16
  Christensen, 529 U.S. at 587 (citation omitted); Preserve, 129 P.3d

  at 1020.

¶ 38   An agency interpretation’s persuasiveness is derived in part

  from the “thoroughness evident in its consideration” and from its

  reflection of a body of experience and informed judgment. Skidmore

  v. Swift, 323 U.S. 134, 140 (1944). The Advisory Bulletin meets

  these criteria. It is a 200-page document, comprehensively

  addressing wage law and related workplace topics, and, in it, the

  Department acknowledged the “extensive input and feedback [it

  had] received from Colorado employees, employers, attorneys, law

  firms, and organizations regarding the content of this publication.”

  Advisory Bulletin Foreword.

¶ 39   Further, to be persuasive, an agency interpretation must be

  consistent and contemporaneous with other pronouncements of the

  agency, and must be reasonable, given the language and purpose of

  the statutes the regulation is designed to implement. See Skidmore,

  323 U.S. at 140; Cleary ex rel. Cleary v. Waldman, 167 F.3d 801,

  808 (3d Cir. 1999). Again, the Advisory Bulletin satisfies these

  criteria. Its provisions defining (and addressing the distinctions in

  coverage between) “interstate drivers” and intrastate drivers were


                                    17
  published contemporaneously with, and have not been revised since

  its March 2012 publication date. And these provisions do not

  conflict with — but rather fulfill the Department’s statutory duty to

  explain — the Wage Order’s exemption of “interstate drivers” from

  its coverage. See Advisory Bulletin Forward (noting that it is “not

  intended to expand, narrow, or contradict current law”). And, the

  Advisory Bulletin’s provisions are reasonable given the General

  Assembly’s objective of requiring Colorado employers to provide

  adequate wages for their workers. See § 8-6-101(1), C.R.S. 2017

  (stating that inadequate wages exert a “pernicious effect” on the

  health and morals of workers); § 8-6-104, C.R.S. 2017 (prohibiting

  inadequate wages); see also Montemayor v. Jacor Commc’ns. Inc., 64

  P.3d 916, 923 (Colo. App. 2002) (providing that the Colorado Wage

  Claim Act is to be liberally construed to carry out its purpose to

  require Colorado employers to timely pay wages and to provide

  adequate judicial relief when wages are not paid).

¶ 40   Also, consistent with the Wage Order, the Department’s

  Advisory Bulletin clarified that if Colorado gives greater protection

  to the worker than that provided in the FLSA, then Colorado’s




                                    18
  definition controls. In a section entitled “Federal Law vs. Colorado

  Law,” the Department explains that

             [e]mployers and employees in Colorado may be
             covered by either federal wage law, state wage
             law, both state and federal law, or neither,
             depending upon the particular circumstances.
             Whenever employers are subject to both
             federal and Colorado law, the law providing
             greater protection for the employee or setting
             the higher standard shall apply.

  Advisory Bulletin § 29(I).

¶ 41   We therefore determine that the Advisory Bulletin is

  persuasive and entitled to respect such that “courts and litigants

  may properly resort [to it] for guidance.” See Skidmore, 323 U.S. at

  140. Thus, we will consider the Advisory Bulletin in attempting to

  discern the Department’s intent in promulgating the Wage Order’s

  exemption of “interstate drivers.” See Christensen, 529 U.S. at 587;

  see also Skidmore, 323 U.S. at 140.

¶ 42   The Advisory Bulletin clarifies which drivers the Department

  considers to be “interstate drivers” exempt from overtime pay.

  Advisory Bulletin § 22(I). It defines “interstate drivers” as “drivers

  whose work takes them across state lines.” Id. It states that these




                                     19
  drivers “are exempt from all of the provisions” of the Wage Order.

  Id.

¶ 43    And, in contrast, the Advisory Bulletin defines “intrastate

  drivers” as “[d]rivers whose work travel is entirely within the State

  of Colorado.” Id. It states that intrastate drivers are “not

  specifically exempted from the provisions” of the Wage Order. Id.

  Rather, determinations of coverage and exemptions for these drivers

  are to be made on “a case-by-case basis in accordance with the

  provisions of the Wage Order.” Id. The Advisory Bulletin states

  that “[f]or an intrastate driver to be covered by the Wage Order, the

  driver’s work must be performed for an employer categorized in one

  [of] the four covered industries as specified by the Wage Order.”5 Id.

¶ 44    We therefore conclude that the Department’s interpretation of

  its own regulation is entitled to respect, see Christensen, 529 U.S.

  at 588; see also Auer v. Robbins, 519 U.S. 452, 461-62 (1997);

  Sierra Club, 166 P.3d at 312, and we construe the term “interstate




  5 The Wage Order covers employers in the following four industries:
  “(A) Retail and Service,” “(B) Commercial Support Service,” “(C) Food
  and Beverage,” and “(D) Health and Medical.” Wage Order § 1.

                                    20
  drivers” to apply only to drivers whose work takes them across state

  lines.

                           IV.   Conclusion

¶ 45   The term “interstate drivers” in the Wage Order applies only to

  drivers whose work takes them across state lines. Because

  Shamrock did not “plainly and unmistakably” demonstrate that

  Brunson falls within the Wage Order’s exemption, see Chase, 129

  P.3d at 1014-15, we reverse the court’s summary judgment and

  remand the case for further proceedings.

       JUDGE TAUBMAN and JUDGE KAPELKE concur.




                                   21
