                                                              2019 WI 27

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2017AP631
COMPLETE TITLE:         Christopher Kieninger and Dewayne Meek,
                                  Plaintiffs-Appellants,
                             v.
                        Crown Equipment Corporation d/b/a Crown Lift
                        Trucks, LLC,
                                  Defendant-Respondent-Petitioner.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 380 Wis. 2d 282, 913 N.W.2d 234
                                      (2018 – unpublished)

OPINION FILED:          March 20, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 12, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Ellen K. Berz

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-respondent-petitioner, there were briefs
filed by David J.B. Froiland, Christine Bestor Townsend, and
Ogletree, Deakins, Nash, Smoak, & Stewart, P.C., Milwaukee, with
whom on the briefs were Lynn M. Stathas, Malinda J. Eskra, and
Reinhart Boerner Van Deuren S.C., Madison.            There was an oral
argument by David J.B. Froiland.


       For the plaintiffs-appellants, there was a brief filed by
Kurt C. Kobelt and Law Offices of Kurt C. Kobelt, Middleton.
There was an oral argument by Kurt C. Kobelt.
                                                                             2019 WI 27
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.       2017AP631
(L.C. No.    2014CV2791)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

Christopher Kieninger and Dewayne Meek,

             Plaintiffs-Appellants,                                       FILED
      v.                                                             MAR 20, 2019
Crown Equipment Corporation d/b/a Crown Lift                            Sheila T. Reiff
Trucks, LLC,                                                         Clerk of Supreme Court


             Defendant-Respondent-Petitioner.




      REVIEW of a decision of the Court of Appeals.                     Reversed.


      ¶1     DANIEL KELLY, J.          Messrs. Christopher Kieninger and
Dewayne Meek tell us that Wisconsin's statutes and regulations

require     their     employer   to   pay   them       for   the   time     they    spend
driving a company-provided vehicle between their homes and their
assigned jobsites.1          Because our laws do not impose such an
obligation, we reverse the court of appeals.



      1This is a review of an unpublished decision of the court
of appeals, Kieninger v. Crown Equipment Corp., No. 2017AP631,
unpublished slip op. (Wis. Ct. App. Jan. 18, 2018), which
reversed the judgment of the Dane County Circuit Court, the
Honorable Ellen K. Berz presiding.
                                                                                  No.    2017AP631



                                      I.    BACKGROUND
      ¶2     Crown        manufactures          industrial          equipment,          including
forklifts.        It employs field service technicians ("Technicians")
throughout      Wisconsin        to   service       that      equipment.          Technicians
travel     to     customers'      locations           in    Crown's     vans,       which     are
stocked with the tools, equipment, and supplies necessary to
their      work.2          Crown's         dispatchers          and     the       Technicians
collaboratively schedule the service calls to, in part, minimize
travel     time     and    maximize        time     spent      serving      the    customers.
Technicians typically are able to choose which service calls
will be the first and last of the day.
      ¶3     Technicians have the choice of commuting between work

and   home in       either their           personal         vehicles or the company's
vans.      A Technician choosing the                       former   drives    his personal
vehicle to his assigned branch prior to the beginning of his
shift.      There,        he   picks       up   the    company        van   and     makes     his
appointed rounds.              At the end of his shift, he takes the van
back to his branch location, and drives his personal vehicle
home.      If he chooses the latter option, he drives the company
van home after the last service call of the shift, and the next
day   drives      it directly         to    the     first     scheduled       service       call.



      2Crown has four branch locations in Wisconsin: Milwaukee,
Green Bay, La Crosse, and Madison. Each Technician is assigned
to a branch, and serves customers within that branch's area.
However, there are circumstances, not relevant to this case, in
which a Technician may be required to serve a customer outside
of his assigned branch's area.



                                                2
                                                              No.   2017AP631



Technicians who commute in a company van usually arrange the
first and last appointments so they are as close to home as
possible.
      ¶4      Crown pays its Technicians for all of the time they
spend traveling between jobsites as well as between jobsites and
Crown facilities.      It does not pay them for commute time between
home and work when using their personal vehicles.            Commute time
in a Crown-provided van is handled differently.             Historically,
Crown paid for time spent commuting in a company van between
home and the first or last service call, except for the first 30
minutes of each.     That policy changed in September 2013.
      ¶5      The new policy still allows a Technician to commute in

one of Crown's vans.      It provides that "[h]ourly Technicians who
drive a company vehicle in the course of employment with Crown
may be given the option to park the vehicle at home between
shifts."      With respect to compensation for travel between home
and   work,    however,   the   Commute   Travel   Time   Guidelines    (the
"Guidelines") now say the following:

      Commute Travel at the Beginning of the Work Day

      A technician will begin clocking compensated time when
      one of the following has occurred:
           1. The technician has arrived at the customer
                guard shack or customer's parking space.
           2. The technician has arrived at the branch.
           3. The technician arrives at location for the
                vehicle to be serviced.
           4. Forty five (45) minutes of commute travel has
                elapsed.    Commute travel greater than 45
                minutes at the beginning of the work day
                will be compensated.



                                     3
                                                                                 No.    2017AP631


      Commute Travel at the End of the Work Day

      The work day ends when all work related activities
      have been completed.    This includes properly placing
      all tools and other items in the vehicle, completing
      all forms and paperwork, and communicating with
      dispatch as necessary.    Commute time begins when the
      technician has left the last work location.          A
      technician's commute from the assigned work area to
      home is not compensated.
      ¶6    Messrs.        Kieninger          and     Meek    are        two     of        Crown's
Technicians.        They both opted to commute between home and work
in   Crown's   vans,       and   each     signed      a     copy    of    the    Guidelines.
Nevertheless, they believe that the entire time spent commuting
between home and work in a company van is "an integral part of
their jobs" for which they must be paid.
      ¶7    Mr.     Kieninger      filed       a    complaint       with       the     Wisconsin
Department     of     Workforce          Development          (the       "DWD")         claiming
entitlement    to    unpaid      wages        based    on    his    commute          time    in   a
company    van.      The     DWD       dismissed      the    claim.            Mr.     Kieninger
reprised   his    claim     in     a    complaint         filed    in    the     Dane       County
Circuit    Court,     in    which        he    proposed       to    represent          a     class
comprising all similarly-situated Crown Technicians.                                 He amended
his complaint to add Mr. Meek as a named party, and the circuit
court subsequently certified the class pursuant to Wis. Stat.
§ 803.08 (2013-14).3             The parties filed competing motions for
summary judgment on the question of whether commute time in a
company-provided vehicle is compensable.                          They each assured the


      3 All subsequent references to the Wisconsin Statutes are
to the 2017-18 edition unless otherwise specified.



                                               4
                                                                                        No.    2017AP631



circuit court that the case presented no genuine issue as to any
material fact.
     ¶8       The circuit court granted Crown's motion.                                  It reasoned
that it must interpret Wisconsin's labor laws consistently with
federal      labor    laws.         Because         it        concluded         that    the     federal
Employee      Commuting       Flexibility               Act    (the    "ECFA")4         definitively
answered the question, it adopted a conforming interpretation of
Wisconsin's         labor     regulations               and     dismissed         the     complaint.
Messrs. Kieninger and Meek——we will refer to them collectively
as   "Mr.     Kieninger"          unless       the       context        requires         otherwise——
appealed.
     ¶9       The     court        of   appeals           disagreed         with        the     circuit

court's      use     of     the     ECFA      to        develop       an    interpretation           of
Wisconsin's         regulations.              See       Kieninger          v.    Crown        Equipment
Corp., No. 2017AP631, unpublished slip op., ¶21 (Wis. Ct. App.
Jan. 18, 2018) ("Crown does not convincingly explain why ECFA
language——wording            that       was     not           adopted       by     the        Wisconsin
Legislature——should               control      over           the     language         actually      in
place.").       As to whether Wisconsin's statutes and regulations——
without reference to federal law——require payment for commuting
time in a company-provided vehicle, the court of appeals said it
was "uncertain whether under the correct standard there might be
one or more genuine issues of material fact," id., ¶3, and so
reversed the circuit court and remanded for further briefing.
Crown petitioned for review.

     4
         29 U.S.C. § 254 (2012).

                                                    5
                                                                                   No.    2017AP631



      ¶10    We agree with the court of appeals that the ECFA does
not   guide       our    application         of       Wisconsin        law    in       this    case.
However, we do not agree that further briefing is necessary, or
that there may be a genuine dispute as to a material fact.                                          We
conclude     that       Crown    is    entitled        to    summary         judgment         in   its
favor, and so we reverse the court of appeals.
                                II.    STANDARD OF REVIEW
      ¶11    We    review       the    disposition           of    a    motion     for    summary
judgment     de    novo,      applying       the      same       methodology       the    circuit
courts apply.            Green Spring Farms v. Kersten, 136 Wis. 2d 304,
315, 401 N.W.2d 816 (1987); see also Borek Cranberry Marsh, Inc.
v.    Jackson      Cty.,        2010    WI 95,         ¶11,       328     Wis. 2d 613,             785

N.W.2d 615        ("We    review       the    grant         of    a    motion      for    summary
judgment de novo . . . .").                  First, we "examine the pleadings to
determine whether a claim for relief has been stated."                                         Green
Spring    Farms,        136   Wis. 2d at       315.          Then,      "[i]f      a    claim      for
relief has been stated, the inquiry . . . shifts to whether any
factual issues exist."                 Id.        Summary judgment is appropriate
only "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law."       Wis.    Stat.       § 802.08(2)           (2015-16);        see     also     Columbia
Propane, L.P. v. Wis. Gas Co., 2003 WI 38, ¶11, 261 Wis. 2d 70,
661 N.W.2d 776 (citing Wis. Stat. § 802.08(2) (2001-02)).
      ¶12    In the course of this opinion, we will consider the
meaning     and    application         of    various        statutes         and   regulations.
                                                  6
                                                                                  No.    2017AP631



These are questions of law that we review de novo.                                      State v.
Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346 ("The
interpretation and application of a statute present questions of
law that this court reviews de novo . . . ."); United Food and
Commercial Workers Union Local 1473 v. Hormel Foods Corp., 2016
WI 13, ¶30, 367 Wis. 2d 131, 876 N.W.2d 99 ("Interpretation and
application of a regulation is ordinarily a question of law that
this       court    determines       independently           of    the   circuit        court   or
court of appeals . . . .").
                                      III.       ANALYSIS
       ¶13     Mr.       Kieninger       tells       us    the     Guidelines       unlawfully
relieve Crown of the obligation to pay him for the entirety of

the time he spends commuting between home and work in a company-
provided vehicle.                Because he based his claim on Wisconsin's
laws,5 we will rely on that authority to decide this case, unless
federal       law    dictates        a    different          result.        Our         analysis,
therefore,         will    begin     where       it       must——with     what     Wisconsin's
statutes       and        regulations       require          in    these    circumstances.
Afterwards,         we    will    determine       whether         federal   law     proscribes
what Wisconsin prescribes.




       5
       The amended complaint alleges two counts against Crown:
(1) violation of Wisconsin wage payment laws under Wis. Stat.
§§ 104.02, 109.03 and Wis. Admin Code § DWD 272.03 (Feb. 2009),
and (2) violation of Wisconsin overtime compensation law under
Wis Stat. §§ 103.02, 109.03 and Wis. Admin. Code § DWD 274.03.
He did not include any federal claims.



                                                 7
                                                                            No.    2017AP631



      ¶14        Our responsibility is to ascertain and apply the plain
meaning of the statutes as adopted by the legislature.                                  To do
so,       we     focus    on        their    text,     context,       and     structure.
"[S]tatutory        interpretation          'begins    with   the    language          of   the
statute,'" and we give that language its "common, ordinary, and
accepted meaning."             State ex rel. Kalal v. Circuit Court for
Dane Cty., 2004 WI 58, ¶¶45-46, 271 Wis. 2d 633, 681 N.W.2d 110
("Context is important to meaning.                    So, too, is the structure of
the statute in which the operative language appears.                          Therefore,
statutory language is interpreted in the context in which it is
used; not in isolation but as part of a whole; in relation to
the            language        of       surrounding           or       closely-related

statutes . . . .").             In performing this analysis, we carefully
avoid ascribing an unreasonable or absurd meaning to the text.
Id., ¶46 ("[S]tatutory language is interpreted . . . reasonably,
to avoid absurd or unreasonable results.").                        If we determine the
statute's         plain   meaning      through    this    methodology,        we       go   no
further.         Kalal, 271 Wis. 2d 633, ¶45 ("If the meaning of the
statute is plain, we ordinarily stop the inquiry." (internal
marks      and    citation     omitted));      see     generally     Daniel       R.    Suhr,
Interpreting Wisconsin Statutes, 100 Marq. L. Rev. 969 (2017).6

      6These rules of interpretation apply with equal force to
administrative regulations:   "When interpreting administrative
regulations the court uses the same rules of interpretation as
it applies to statutes." United Food and Commercial Workers
Union Local 1473 v. Hormel Foods Corp., 2016 WI 13, ¶30, 367
Wis. 2d 131, 876 N.W.2d 99.




                                              8
                                                                         No.   2017AP631



           A.     Wisconsin and the Payment of Commuting Time
     ¶15    Mr.     Kieninger     says    Crown's       duty     to     pay    him       for
commuting time arises from the statutory mandate that "[e]very
employer     shall . . . pay       to    every      employee      engaged          in    the
employer's         business . . . all          wages           earned         by         the
employee . . . ."        Wis. Stat. § 109.03(1).7                Essentially, Mr.
Kieninger claims that his workday commences the moment he leaves
home, at the beginning of a shift, because he is transporting
Crown's tools to a jobsite.             Similarly, he says his workday does
not end until he reaches home because he is still carrying the
tools.     Crown says that commuting between home and work is no
part of its business, and so it has no duty to pay Technicians

for time spent doing so.
     ¶16    The    statute   on    which      Mr.     Kieninger       relies       is,    of
course,    insufficiently         specific       to     resolve        the     parties'
divergent positions, so we look to the relevant administrative
regulations.8       The DWD provides several guideposts that help us
identify wages earned by the Technicians.                  Here, we learn that
wages accrue when employees are engaged in "physical or mental


     7 Employers may not contractually avoid this obligation.
See Wis. Stat. § 109.03(5) ("[N]o employer may by special
contract with employees or by any other means secure exemption
from this section.").


     8 "Administrative rules enacted                   pursuant to statutory
rulemaking authority have the force                    and effect of law in
Wisconsin."     Staples v. DHSS, 115                    Wis. 2d 363, 367, 340
N.W.2d 194 (1983).



                                          9
                                                                       No.    2017AP631



exertion (whether burdensome or not) controlled or required by
the   employer      and     pursued    necessarily      and    primarily      for    the
benefit of the employer's business."                   Wis. Admin. Code. § DWD
272.12(1)(a)1       (Feb.     2009).    (internal      marks     omitted).       These
exertions take place within a "workday," which comprises:

        [T]he period between the time on any particular
        workday at which      such employee commences their
        principal activity or activities and the time on any
        particular workday at which they cease such principal
        activity or activities. The "workday" may thus be
        longer than the employee's scheduled shift, hours,
        tour of duty, or time on the production line. Also,
        its duration may vary from day to day depending upon
        when   the   employee   commences  or  ceases   their
        "principal" activities.
§ DWD       272.12(1)(a)2.     (some     internal      marks     omitted).9          The
"principal activities" of which a workday consists "include[]
all     activities    which     are    an    integral     part    of   a     principal
activity."          § DWD     272.12(2)(e)1.           Tasks     "integral"     to     a
principal activity encompass "those closely related activities
which         are   indispensable       to       its    performance."            § DWD
272.12(2)(e)1.c.
        ¶17    Distilling     this    guidance     into   a    workable      framework
tells us that an employee's activity is compensable if it takes
place during a workday (that is, it is part of the employee's
principal activities, or is closely related and indispensable to
them), it involves physical or mental exertion controlled or
required by the employer, and it is necessarily and primarily


        9
       "Compensable time is defined in the regulations in terms
of a 'workday.'" Hormel Foods Corp., 367 Wis. 2d 131, ¶40.


                                            10
                                                                             No.    2017AP631



done for the benefit of the employer's business.                            Before we may
apply that framework to the claim at issue here, however, we
must   account       for     the     special    rules    specifically         related      to
travel time.
       ¶18     The     DWD     has    adopted        "principles      which        apply   in
determining         whether    or    not     time    spent    in   travel     is     working
time . . . ."          Wis. Admin. Code § DWD 272.12(2)(g)1.                         One of
those principles is that time spent commuting between home and
work is not compensable:

       An employee who travels from home before their regular
       workday and returns to their home at the end of the
       workday is engaged in ordinary home to work travel
       which is a normal incident of employment. This is true
       whether they work at a fixed location or at different
       job sites. Normal travel from home to work is not work
       time.
§ DWD 272.12(2)(g)2.               The regulations draw a sharp distinction
between      this    type     of    travel     and   travel    that    is    a     principal
activity     (for which        an     employee earns         wages).        For example,
traveling between jobsites is clearly compensable:                            "Time spent
by an employee in travel as part of their principal activity,
such as travel from job site to job site during the workday,

must be counted as hours worked."                    § DWD 272.12(2)(g)5.            And if
Mr. Kieninger had opted to drive his personal vehicle to a Crown
branch, his time spent driving Crown's van between the branch
and the jobsites would also unquestionably accrue wages:

       Where an employee is required to report at a meeting
       place to receive instructions or to perform other work
       there, or to pick up and to carry tools, the travel
       from the designated place to the workplace is part of


                                               11
                                                                      No.    2017AP631


      the day's work, and must be counted as hours worked
      regardless of contract, custom, or practice.
Id.
      ¶19    However,   in    an    illustration     that       almost      perfectly
describes the option Mr. Kieninger actually chose, the DWD says
the   time   spent    driving      between   home   and    a    worksite      is   not
compensable.

      If an employee normally finished their work on the
      premises at 5 p.m. and is sent to another job which
      they finish at 8 p.m. and is required to return to
      their employer's premises arriving at 9 p.m. all of
      the time is working time. However, if the employee
      goes home instead of returning to their employer's
      premises, the travel after 8 p.m. is home-to-work
      travel and is not hours worked.
Id.    Presumably, the same principle applies to travel at the
other end of the day.           That is, if an employee drives directly
from home to a jobsite at the beginning of his shift, he is
similarly engaged in non-compensable "home-to-work" travel.
      ¶20    The     only    difference       between          the    regulation's
illustration and the circumstances of this case is that Crown
allows its Technicians to engage in "home-to-work" travel in a
company vehicle.        Whether the employee is in a personal or a
company vehicle, he is doing the exact same thing, and no one
disputes that the time at issue would not be compensable if Mr.
Kieninger had driven his own automobile.               So Mr. Kieninger must
explain why the difference in the vehicle's ownership moves his
commute time out of the regulation's non-compensable category.
The sole distinction he offers is that the vehicle he drives to
and   from    his    home    carries    "tools      that    are      integral      and


                                        12
                                                                             No.     2017AP631



indispensable        to a     principal    activity."           He cites         only     Wis.
Admin. Code § DWD 272.12(2)(g)5. to explain the significance of
this distinction.           But as we describe below, when he quoted the
regulation's language he elided the text that demonstrates this
provision does not apply to his commute.
       ¶21    The     regulation      upon      which     Mr.     Kieninger           relies
describes a two-leg journey and explains why only the second leg
represents compensable travel time.                      The first leg comprises
travel from the employee's home to a "meeting place" designated
by    the    employer.        The   second      leg   involves        travel       from    the
meeting      place    to    the    employee's     job    site.        Mr.     Kieninger's
understanding of this regulation, however, entirely omits the

first leg.          His quote reads as follows:             "Where an employee is
required to . . . pick up and to carry tools, the travel from
the designated place to the workplace is part of the day's work,
and    must be       counted as hours        worked regardless              of     contract,
custom,      or   practice."        The   opening       clause   of    that sentence,
which identifies the first leg, actually says this:                              "Where an
employee is required to report at a meeting place . . . ."                                Wis.
Admin.       Code     § DWD    272.12(2)(g)5.         (emphasis        added).             Mr.
Kieninger, however,           is    not required to "report              at      a   meeting
place" to pick up and carry tools.                    He simply drives from his
home to the first jobsite of the day.                     So his one-leg commute
does not match the two-leg travel described by this part of
§ DWD 272.12(2)(g)5.
       ¶22    This regulation actually describes the circumstances
of    Technicians      who,    unlike     Mr. Kieninger,         do    not commute          in
                                           13
                                                                          No.    2017AP631



Crown's vans.           A Technician who travels from home to a Crown
branch to pick up the company vehicle (and its associated tools
and parts), is on the first leg of the journey described by Wis.
Admin. Code § DWD 272.12(2)(g)5.                   No wages accrue for this time.
However, travel from the Crown branch to the customer's location
(the    second        leg)   would    be   compensable     under   this     provision.
Because Mr. Kieninger's commute does not fit this pattern, § DWD
272.12(2)(g)5. does not transform his commute into compensable
time.
       ¶23       So   the    regulations       whittle     down    Mr.    Kieninger's
position to this:            He must be paid for his commute because the
tools       in   Crown's     vans    are     integral    and   indispensable          to    a

principal        activity,     to     wit,    repairing    forklifts.10          But       if
bringing along the resources necessary to perform one's job is
sufficient to make travel between home and work compensable, his
argument proves much too much, and transforms virtually every
commute into a wage-earning event.                   A paralegal who goes home in
the evening with a company-provided computer and then travels
the next day to a witness's location to conduct an interview is
transporting the resources necessary to do his job.                       So is every
office-worker          who   brings    a     file   home   after   work,        and   then
returns it the next morning.                  And, because there is no logical


       10
       Authority for this proposition does not come from Wis.
Admin. Code § DWD 272.12(2)(g)5., but instead from § DWD
272.12(2)(e)1. and § DWD 272.12(2)(e)1.c., which define what is
integral and indispensable to a principal activity.



                                              14
                                                                                 No.    2017AP631



limit to Mr. Kieninger's argument, so too is anyone who merely
drives to his regular place of employment each morning.                                       An
employee creates value for his employer, of course, by bringing
his    physical     and    mental     resources         to    bear    on    the        company's
business.     So, according to Mr. Kieninger's logic, all employees
would have to be paid for their commutes because conveying an
employee's     physical         and   mental       resources         to    the     office     is
integral     and    indispensable       to    a    principal         activity,          to   wit,
whatever they were hired to do.
       ¶24   The tools and parts in Crown's vans may be absolutely
necessary for the repair of forklifts, but they are meaningless
without a Technician who can expertly manipulate them to the

desired      end.         Mr.    Kieninger        can        say   nothing        about      the
indispensability of the tools that could not be said equally of
him.    So if he is right, if transporting the necessaries to the
jobsite makes the travel compensable, then he is entitled to
wages regardless of the tools the van carries because no repairs
could happen without his personal presence.                          And that would mean
that conveying himself from home to the customer's location is
integral or indispensable to the principal activity of repairing
forklifts.      But according to our statutes and regulations, that
simply is not the rule.               Wis. Admin. Code § DWD 272.12(2)(g)2.
("Normal travel from home to work is not work time.").
       ¶25   With    these      specific,         travel-related           regulations        in
mind, we can return to the framework described above.                                  We cannot
conclude that conveying company tools from an employee's home to
his jobsite, without more, makes his travel time "an integral
                                             15
                                                                                 No.    2017AP631



part of a principal activity" within the meaning of Wis. Admin.
Code § DWD 272.12(2)(e)1., or a "closely related" activity that
is    "indispensable        to      its    performance"         within    the     meaning     of
§ DWD    272.12(2)(e)1.c.                 To   hold     otherwise       would    make      every
employee's       commute     a      compensable         event.      Consequently,           this
travel does not take place during a "workday," as defined by
§ DWD    272.12(1)(a)2.              And       that    means    time     spent     in    travel
between home and work in Crown-supplied vehicles does not give
rise to "wages earned by [an] employee" as set forth in Wis.
Stat. § 109.03(1).
                               B.     Federal Authorities
        ¶26    Both Mr. Kieninger and Crown tell us we must construe

our regulations consistently with federal authorities.                                 But they
direct us to different sources.                       Mr. Kieninger prefers opinions
of federal courts construing the pre-ECFA Fair Labor Standards
Act     (the     "FLSA").            He    says       these     cases——and       regulations
identical       to    our   own——teach            that    his    type     of     commute      is
compensable.          Crown, on the other hand, says we can dispense
with     those       federal        opinions       because       they     have     all      been
superseded by the ECFA.               We should read that act, Crown says, as
a    clarification of          the    FLSA and the             regulations       relating     to
commuting time.         And because our regulations mimic their federal
counterparts,          Crown         concludes           that     this         clarification
necessarily clarifies our regulations, too.                         We will begin with
the federal opinions on which Mr. Kieninger relies.
        ¶27    It is true that one federal court (of which we are
aware) has arrived at a conclusion contrary to the one we reach
                                                16
                                                                               No.   2017AP631



today.       We do not take this lightly——the federal judiciary can,
and    often      does,     provide     helpful       insights       when   it       analyzes
federal provisions analogous to our own.                            Luckett v. Bodner,
2009 WI 68, ¶29, 318 Wis. 2d 423, 769 N.W.2d 504 ("When 'a state
rule     mirrors      the    federal        rule,     we   consider      federal        cases
interpreting the rule to be persuasive authority.'"); see also
State v. Leach, 124 Wis. 2d 648, 670, 370 N.W.2d 240 (1985).
They may not, of course, make any binding pronouncements on the
meaning      of     Wisconsin's       laws.         Daanen      &    Janssen,        Inc.     v.
Cedarapids, Inc., 216 Wis. 2d 395, 400, 573 N.W.2d 842 (1998)
("This court is not bound by a federal court's interpretation of
Wisconsin      law.").        Much      less    may    their        opinions     construing

analogous federal provisions control a state's understanding of
its    own    statutes      and   regulations.             We    have   considered           the
opinions of our federal counterparts on this question, but for
the following reasons we are not persuaded they should direct
our analysis.
       ¶28    We need not spend much time on the federal court of
appeals opinions Mr. Kieninger brought to our attention because
none   of     them    addressed       the    question      we    must    answer.            They
considered the compensability of travel between an employer's
location and various job sites, not the time spent traveling
from an employee's home to a jobsite.                      That's a closely related
question, but it is not the same.                   For example, D A & S Oil Well
Servicing, Inc. v. Mitchell, 262 F.2d 552, 555 (10th Cir. 1958),
involved       an    employer     who       compensated         employees      for     travel
between its base of operations and jobsites, but not the return
                                               17
                                                                        No.    2017AP631



trip to the base.           The court concluded the employer must pay for
both.       Id.   But it never mentioned travel between the employee's
home and the employer's base.                 In Crenshaw v. Quarles Drilling
Corp., 798 F.2d 1345, 1350 (10th Cir. 1986), the employer sent
the employee to jobsites across several states.                       The court was
silent with respect to whether the travel occurred between the
employee's home and one of the far-flung locations.                             But it
based its conclusion on the rationale it previously expressed in
D A & S Oil Well Servicing, which applied to travel between an
employer's location and a jobsite.                  As with the employees in D A
& S Oil Well Servicing, the employee in Secretary of Labor v. E.
R.    Field,      Inc.,     495   F.2d 749,       751   (1st   Cir.   1974),    sought

compensation for travel between his employer's business location
and    a     remote    jobsite.        The    court     concluded     the     time   was
compensable,          but   said    nothing       about    traveling    between      an
employee's home and a jobsite.11
       ¶29     One    of    the    federal    district     courts     cited    by    Mr.
Kieninger actually has addressed the question before us, and it
does disagree with our conclusion.                  However, its analysis failed


       11
       Similarly, many of the federal district court cases Mr.
Kieninger cited addressed themselves to the question of whether
travel between an employer's location and a jobsite is
compensable, not the      time between home and a jobsite.
McLaughlin v. Somnograph, Inc., No. Civ.A.04-1274-MLB, 2005 WL
3489507 (D. Kan. Dec. 21, 2005); Dole v. Enduro Plumbing, Inc.,
No. 88-7041-RMT(KX), 1990 WL 252270 (C.D. Cal. Oct. 16, 1990);
Marshall v. Boyd, No. LR-C-7-4, 1979 WL 1922 (E.D. Ark. April 4,
1979); Spencer v. Auditor of Public Accounts, No. 88-54, 1990 WL
8034, (E.D. Ky. Jan. 30, 1990).



                                             18
                                                                  No.    2017AP631



to   account   for   regulatory    material     directly      bearing    on   this
issue, and so it provides an unsure foundation upon which to
base our reasoning.      The plaintiffs in Baker v. GTE North, Inc.
presented      exactly   the    same    issue     as    Mr.     Kieninger——the
compensability of their travel time between home and a jobsite
while carrying the tools necessary to do their jobs.                    The court
said   the   commuting   time    was   compensable     because    "driving      is
principal if it is done 'as part of the regular work of the
employees in the ordinary course of business,' and is 'necessary
to the business and is performed by the employees, primarily for
the benefit of the employer, in the ordinary course of that
business.'"      927 F. Supp. 1104, 1114 (N.D. Ind. 1996) (quoting

Dunlop   v. City Elec.,        Inc., 527    F.2d 394,    400-401    (5th      Cir.
1976)), rev’d on other grounds, 110 F.3d 28 (7th Cir. 1997).
But Dunlop is not the only authority the Baker court should have
consulted.     A pertinent federal regulation provided:

       Time spent by an employee in travel as part of his
       principal activity, such as travel from job site to
       job site during the workday, must be counted as hours
       worked. Where an employee is required to report at a
       meeting place to receive instructions or to perform
       other work there, or to pick up and to carry tools,
       the travel from the designated place to the work place
       is part of the day's work, and must be counted as
       hours worked regardless of contract, custom, or
       practice. If an employee normally finishes his work on
       the premises at 5 p.m. and is sent to another job
       which he finishes at 8 p.m. and is required to return
       to his employer's premises arriving at 9 p.m., all of
       the time is working time. However, if the employee
       goes home instead of returning to his employer's
       premises, the travel after 8 p.m. is home-to-work
       travel and is not hours worked.


                                       19
                                                                                No.    2017AP631



29 C.F.R. § 785.38.             This is virtually identical to Wis. Admin.
Code    § DWD      272.12(2)(g)5.,           the     regulation    that       was     the   main
driver of our analysis.                   That it is identical should come as no
surprise,       inasmuch        as    it     was,     apparently,       the     genesis      of
Wisconsin's own regulation.12                   What does come as a surprise is
that not only did it not find a central place in the analysis,
the court never even mentioned it.
       ¶30    By      failing        to    distinguish       between      home-to-jobsite
travel on the one hand, and on the other home-to-employer-to-
jobsite travel, the Baker court adopted (perhaps unknowingly)
the logically-unlimited argument Mr. Kieninger offered here.                                 It
concluded       that    carrying          the   tools      necessary     to     perform     the

employee's work made the travel an "integral and indispensable"
part    of    the      employee's          principal       activity.13         But     because
conveying       the    employee           himself     to   the    jobsite       is    no    less
necessary to perform his work, the Baker court's logic would
make the employees' commute compensable even if they transported
nothing but themselves.                   The antidote to this argument, at the
federal      level,     is   29       C.F.R.        § 785.38.      If     the       court    had
accounted for its provisions, as we did in assessing Wis. Admin.
Code § DWD 272.12(2)(g)5., it may have recognized the unintended


       12
        The federal regulation (29 C.F.R. § 785.38)                             was adopted
in 1961. See 26 Fed. Reg. 194 (Jan. 11, 1961) (to                               be codified
at 29 C.F.R. § 785.38).      Wisconsin adopted its                               counterpart
(§ DWD 272.12(2)(g)5.) over 17 years later. 271B                                Wis. Admin.
Reg. 32-4 (July 31, 1978).
       13   See supra note 11.



                                                20
                                                                             No.   2017AP631



consequences of its reasoning.               We are not persuaded by Baker v.
GTE North, Inc.
     ¶31    Crown,    on   the       other    hand,       says    all    federal      cases
addressing     commuting        time       prior     to        1996   are     no     longer
controlling.         Instead,     it       proposes       we    follow      its    somewhat
labyrinthine    argument        to     the       conclusion       that      Congressional
adoption of the ECFA in 1996 controls the disposition of this
case.     We can certainly understand why Crown believes it should—
—the ECFA's text gives its position a nice assist.                                 That Act
provides:

     [T]he use of an employer's vehicle for travel by an
     employee and activities performed by an employee which
     are incidental to the use of such vehicle for
     commuting shall not be considered part of the
     employer's principal activities if the use of such
     vehicle for travel is within the normal commuting area
     for the employer's business or establishment and the
     use of the employer's vehicle is subject to an
     agreement on the part of the employer and the employee
     or representative of such employee.
     29 U.S.C. § 254(a).              But Crown's argument depends on the
unusual     assertion      that        a     Congressional            act    post-dating
Wisconsin's labor regulations can somehow retroactively change
their meaning.14      It says the high degree of correlation between
Wisconsin and federal labor regulations (at least with respect


     14The provision at issue here, Wis. Admin. Code § DWD
272.12, was originally adopted in 1978 as Wis. Admin. Code § Ind
72.12.    See Wisconsin Department of Workforce Development
Timeline                  History:                 1883-Present,
https://dwd.wisconsin.gov/dwd/dwdhistory/.




                                            21
                                                                              No.    2017AP631



to the compensability of commuting time) demonstrates that the
DWD intended our regulations on this subject to always move in
lockstep with their federal analogs.                       Inasmuch as the DWD has
not   adopted     something         similar    to    the       ECFA,   Crown's      argument
depends on this movement occurring even without any state-level
rule-making activity.               There are circumstances in which the DWD
may wish our laws to track federal law; it said as much when it
adopted    exemptions          to   overtime       pay    requirements.             See    Wis.
Admin.     Code        § DWD    274.04        ("[T]hese         exemptions       shall       be
interpreted       in    such    a    manner    as    to    be     consistent        with    the
Federal    Fair        Labor    Standards      Act       and    the    Code   of     Federal
Regulations       as     amended . . . .").15                  However,   there       is     no

      15In construing Wis. Admin. Code § DWD 274.04, the court of
appeals said in Madely v. Radioshack Corp., 2007 WI App 244,
¶13,   306   Wis. 2d 312,  742   N.W.2d 559,   that    "Wisconsin's
administrative regulations are to be interpreted in such a
manner as to be consistent with the Federal Fair Labor Standards
Act (FLSA) and the Code of Federal Regulations . . . ." But in
a subsequent case, it acknowledged that "we do not read Madely
as   standing    for   the   proposition   that    all    Wisconsin
administrative regulations must be interpreted in lock step with
the FLSA and the CFR." Weissman v. Tyson Prepared Foods, Inc.,
2013   WI App 109,   ¶44,  350   Wis. 2d 380,   838    N.W.2d 502).
Instead, Madely's statement was inspired by the text of § DWD
274.04:

      [T]he code provision at issue in Madely explicitly
      directed interpretation "consistent with the [FLSA]
      and the [CFR] as amended." This significant "lock
      step" directive, lacking in the code provisions at
      issue here, appears to be the basis for our statement
      in Madely that Wisconsin's administrative regulations
      are to be interpreted consistent with the FLSA and the
      CFR.

Id. (Brackets in original.).


                                              22
                                                                            No.    2017AP631



corresponding linkage between § DWD 272 and the FLSA or the
CFRs,     or   any    other    federal     law.        We    will     not   create       one.
Consequently, the ECFA plays no part in our analysis of this
case.16
                                            *
     ¶32       Our     holding      is    limited,          and     applies       only        to
circumstances         in   which    an   employee      drives     a   company-provided
vehicle between home and a jobsite.                     It does not disturb the
compensability of travel between an employer's location and a
jobsite,       or    between   jobsites.        See     Wis.      Admin.    Code     §    DWD
272.12(2)(g)5. ("Time spent by an employee in travel . . . from
job site to job site during the workday, must be counted as

hours     worked.     Where    an   employee      is   required       to    report       at   a
meeting place to receive instructions or to perform other work
there, or to pick up and to carry tools, the travel from the




     16Our analysis would be different, of course, if the ECFA
had explicitly or by necessary implication pre-empted a relevant
part of Wisconsin's law.     The Supremacy Clause of the United
States Constitution ensures that federal law takes precedence
over contrary state provisions:

     Article VI, cl. 2, of the Constitution provides that
     the laws of the United States "shall be the supreme
     Law of the Land; . . . any Thing in the Constitution
     or Laws of any state to the Contrary notwithstanding."
     Consistent with that command, we have long recognized
     that state laws that conflict with federal law are
     "without effect."

Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008).



                                           23
                                                                      No.   2017AP631



designated       place   to    the    workplace     is   part    of    the    day's
work . . . .").
                                IV.    CONCLUSION
     ¶33    We hold that neither Wis. Stat. § 109.03(1) nor DWD's
related regulations require Crown to pay an employee for the
time he spends driving a tool-laden, company-provided vehicle
between his home and an assigned jobsite.                Therefore, we reverse
the court of appeals.17
     By    the    Court.—The    decision     of   the    court   of    appeals    is
reversed.




     17The court of appeals rejected Crown's reliance on the
ECFA for guidance in interpreting Wisconsin's statutes, and so
reversed the circuit court's judgment.    However, it also said
"we lack sufficient adversarial briefing on the correct
Wisconsin standard and, additionally, we are uncertain whether
under the correct standard there might be one or more genuine
issues of material fact." Kieninger, No. 2017AP631, unpublished
slip op., ¶3. So it remanded the matter for further briefing.

     Neither party has asserted (in this court) that it wants an
opportunity to submit additional briefing on this subject, and
we see no such need. Nor have they suggested to us that there
is any genuine dispute as to a material fact.           That is
consistent with their cross-motions for summary judgment in the
circuit court, in which they originally asserted this case
presents no genuine dispute as to a material fact. We conclude,
therefore, that there is no reason to remand this matter for
further proceedings.



                                        24
    No.   2017AP631




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