Brown v. Ford Storage and Moving Co, Inc.

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No. 101,915

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHRISTOPHER BROWN, ON BEHALF OF HIMSELF
AND ALL OTHER PERSONS SIMILARLY SITUATED,
Appellants,

v.

FORD STORAGE AND MOVING COMPANY, INC., et al.,
Appellees.

SYLLABUS BY THE COURT

1.
When a defendant moves for relief pursuant to K.S.A. 60-212(b)(6) for failure to
state a claim upon which relief may be granted, and interjects facts beyond those on the
face of the pleading, the motion is treated as one for summary judgment.

2.
An appellate court considers de novo motions for summary judgment and issues
involving statutory interpretation.



2
3.
Before 1961, the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et
seq., extended benefits only to workers who were themselves engaged in interstate
commerce. This is referred to as "individual employee coverage." In 1961, Congress
amended the FLSA to add the concept of enterprise coverage. Enterprise coverage
extends FLSA coverage to all employees working for a covered enterprise, whether or
not the particular employee's activities have anything to do with interstate commerce.

4.
An employer is subject to the provisions of the FLSA if the employer satisfies two
criteria: the employer (1) is engaged in interstate commerce and (2) has an annual gross
sales volume of at least $500,000. 29 U.S.C. § 203(s)(1) (2006).

5.
K.S.A. 44-1202(d), which is part of the Kansas Minimum Wage and Maximum
Hours Law, K.S.A. 44-1201 et seq., provides in clear and unambiguous language that the
term "employer" does not include any employer who is subject to the provisions of the
FLSA.




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6.
The holdings in Clements v. Emery Worldwide Airlines, Inc., 44 F. Supp. 2d 1141
(D. Kan. 1999), and Dollison v. Osborne County, 241 Kan. 374, 737 P.2d 43 (1987), are
discussed.

7.
Under the facts of this case, each of the claimed employers is engaged in interstate
commerce with annual gross sales of over $500,000. Although each is exempt from the
overtime pay requirements of the FLSA because of the interstate motor carrier exemption
found in 29 U.S.C. § 203(s)(1) (2006), as employers satisfying the jurisdictional
requirements of the FLSA, each is subject to the minimum wage requirements, gender
discrimination prohibitions, underage hiring restrictions, and record retention
requirements of the FLSA.

8.
Pursuant to K.S.A. 44-1204(a), only "employers" are required to pay overtime
compensation. The definition of "employer" in the Kansas Minimum Wage and
Maximum Hours Law excludes those employers "subject to" the FLSA. K.S.A. 44-
1202(d). Because the claimed employers in the case at bar are subject to FLSA
regulation, they are not "employers" as that term is used in the Kansas Minimum Wage
and Maximum Hours Law. Because they are not "employers" pursuant to the Kansas
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Minimum Wage and Maximum Hours Law, they owe their employees no duty to pay
overtime wages under Kansas law pursuant to the plain language of K.S.A. 44-1204(a).

Appeal from Wyandotte District Court, DANIEL A. DUNCAN, judge. Opinion
filed February 12, 2010. Affirmed.

Gregory M. Dennis, of Kent T. Perry & Co., L.C., of Overland Park, Barry R.
Grissom, of Grissom Law Offices, of Overland Park, and Michael F. Brady, Michael
Hodgson, and Matt Osman, of Brady & Associates Law Offices, of Overland Park, for
appellants.

Marcia A. Wood, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita,
and Thomas A. Hamill and B. Scott Tschudy, of the same firm, of Overland Park, for
appellee Ford Storage and Moving Company.

Anthony J. Romano, Robert J. Hingula, and Andrea C. Bernica, of Polsinelli
Shughart PC, of Kansas City, Missouri, for appellee Nebraska Furniture Mart, Inc.

James T. Graves, of Scopelitis, Garvin, Light, Hanson & Feary, P.C., of Kansas
City, Robert Digges, Jr., of Arlington, Virginia, and Gregory M. Feary, of Scopelitis,
Garvin, Light, Hanson & Feary, P.C., of Indianapolis, Indiana, were on the brief for amici
curiae Kansas Motor Carrier Association and American Trucking Associations, Inc.
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Before McANANY, P.J., ELLIOTT and LEBEN, JJ.

McANANY, J.: Christopher Brown brought this action on behalf of himself and
other similarly situated delivery truck drivers alleging the failure of the defendants Ford
Storage and Moving Co. (Ford), and Nebraska Furniture Mart, Inc. (Nebraska), to pay
overtime wages for hours worked in excess of 46 hours per work week in violation of the
Kansas Minimum Wage and Maximum Hours Law (KMWMHL), K.S.A. 44-1201 et seq.
Brown contends that Ford employed him and other drivers to deliver goods for Nebraska.
He contends that Nebraska controlled the delivery services of Ford and its drivers to the
extent that Ford and Nebraska became joint employers within the meaning of Kansas law.

Nebraska moved to dismiss, contending that the KMWMHL does not apply. The
matter was extensively briefed. Nebraska asserted that it is not subject to the KMWMHL
because it is already subject to regulation under the Fair Labor Standards Act (FLSA), 29
U.S.C. § 201 et seq. (2006), based upon its interstate commerce activities and its annual
gross sales in excess of $500,000.

While denying the legal conclusion that Nebraska is subject to the FLSA, Brown
did not dispute that Nebraska was engaged in interstate commerce with the requisite sales
volume. Following oral argument, the district court sustained the motion and dismissed
the claims against Nebraska. The court found that Nebraska was not an "employer"
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under the terms of the KMWMHL, but rather was subject to the Fair Labor Standards
Act, and therefore was specifically excluded from the KMWMHL by K.S.A. 44-1202(d).

A week later, Ford moved for judgment on the pleadings or, in the alternative, for
summary judgment, asserting the same arguments successfully asserted by Nebraska.
Following receipt of Brown's brief in opposition, the district court sustained Ford's
motion and this appeal followed.

At issue in this appeal is the scope and interaction of KMWMHL and the FLSA.

Standard of Review

First, we must briefly address our standard of review. While the district court
dismissed Nebraska pursuant to K.S.A. 60-212(b)(6) for failure to state a claim upon
which relief may be granted, the court considered facts beyond the face of the pleading
(Nebraska's interstate commerce activities and its sales volume), thereby converting the
motion to one for summary judgment. See Underhill v. Thompson, 37 Kan. App. 2d 870,
874, 158 P.3d 987 (2007). Ford's motion was for summary judgment. Accordingly, and
also because the scope and effect of the FLSA and the KMWMHL are questions of law,
our review of Nebraska and Ford's motions is de novo. See Double M Constr. v. Kansas
Corporation Comm'n, 288 Kan. 268, 271, 202 P.3d 7 (2009); Troutman v. Curtis, 286
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Kan. 452, Syl. ¶ 1, 185 P.3d 930 (2008). In our de novo review, we apply the familiar
summary judgment standards restated in Underhill, 37 Kan. App. 2d at 874-75.

The Statutes

— Kansas

K.S.A. 44-1204(a), which is part of the KMWMHL, sets forth the basic overtime
pay requirement of Kansas law. It requires an employer to pay its employee at least 1.5
times the employee's regular hourly wage for hours worked in excess of 46 hours in a
workweek. However, the statute also provides that this overtime pay requirement does
not apply to employees who are "covered under the provisions of section 7 of the
[FLSA]." K.S.A. 44-1204(c)(1). Similarly, K.S.A. 44-1202(d) provides that the term
"employer" "shall not include any employer who is subject to the provisions of the
[FLSA]."

— Federal

The FLSA, 29 U.S.C. § 207(a)(1) (2006), requires overtime pay for work in excess
of 40 hours in the workweek, rather than work in excess of 46 hours under Kansas law. It
provides:

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"[N]o employer shall employ any of his employees who in any workweek is
engaged in commerce or in the production of goods for commerce, or is
employed in an enterprise engaged in commerce or in the production of
goods for commerce, for a workweek longer than forty hours unless such
employee receives compensation for his employment in excess of the hours
above specified at a rate not less than one and one-half times the regular
rate at which he is employed." 26 U.S.C. § 207(a)(1).

To be "an enterprise engaged in commerce or in the production of goods for
commerce" under 29 U.S.C. § 207(a)(1), the enterprise must have "employees engaged in
commerce or in the production of goods for commerce, or [have] employees handling,
selling, or otherwise working on goods or materials that have been moved in or produced
for commerce by any person," and have an annual gross sales volume of at least
$500,000. 29 U.S.C. § 203(s)(1) (2006).

Finally, 29 U.S.C. §213(b) (2006) of the FLSA excludes certain categories of
employees from maximum hours and minimum pay regulation:

"The [overtime] provisions of section 207 of this title shall not apply
with respect to--
"(1) any employee with respect to whom the Secretary of Transportation
has power to establish qualifications and maximum hours of service pursuant to
the provisions of section 31502 of title 49 [including, among other things,
interstate motor carriers]." 29 U.S.C. § 213(b).

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In our de novo consideration of the motions of Ford and Nebraska, we must
answer three questions:

(1) Are Ford and Nebraska subject to regulation under the FLSA?

(2) If so, does this exempt them from regulation under the KMWMHL?

(3) If the FLSA takes Ford and Nebraska out of state wage and hour
control, is Brown still entitled to KMWMHL overtime?

1. Are Ford and Nebraska subject to regulation under the FLSA?

Goldberg v. Faber Industries, Inc., 291 F.2d 232 (7th Cir. 1961), typifies the cases
under the FLSA before Congress enacted changes in 1961. In Goldberg, the Secretary of
Labor sued Faber for failure to pay overtime wages to certain truck drivers. The district
court held that the nature of the employer's operation determined whether the Act
applied. The Circuit Court of Appeals reversed. In declaring that the nature of Faber's
operations was not controlling, the court stated:

"The test is the nature of the transportation performed by the employees.
The exemption in the Fair Labor Standards Act depends upon the activities
of the individual employees." 291 F.2d at 235.

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Brown relies on a series of cases from 1943 to 1961 to support the proposition that
we should view coverage under the KMWMHL from the employee's perspective, not the
employer's perspective. We do not find them persuasive.

Before 1961, the FLSA extended benefits only to workers who were themselves
engaged in interstate commerce. This is referred to as "individual employee coverage."
In 1961, Congress amended the FLSA to add the concept of enterprise coverage. As
explained in Schultz v. Poirier, 300 F. Supp. 1156, 1158 (E.D. La. 1969):

"The concept of enterprise coverage was added by amendments in 1961 and
expanded by amendments in 1966. Under the concept of enterprise
coverage, a business that qualifies as a covered enterprise within the
meaning of the statute is subject to the Act's requirements with respect to
all its employees, including workers engaged in purely local activities.
Under the concept of individual employee coverage, . . . the Act. . . covered
employees individually when their particular activities had something to do
with interstate commerce. Amendments to the Act in 1961 and 1966
extended coverage to all employees working for a covered enterprise,
whether or not the particular employee's activities had anything to do with
interstate commerce."

An employer is subject to the provisions of the FLSA if the employer satisfies two
criteria: the employer (1) is engaged in interstate commerce and (2) has an annual gross
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sales volume of at least $500,000. 29 U.S.C. § 203(s)(1). Ford and Nebraska satisfy
these criteria and are subject to the FLSA. Ford and Nebraska are covered enterprises.

2. Does this exempt Ford and Nebraska from regulation under the
KMWMHL?

K.S.A. 44-1202(d) provides in clear and unambiguous language that the term
"employer" "shall not include any employer who is subject to the provisions of the
[FLSA]."

Brown argues that we should ignore this clear expression of legislative intent
because of the Kansas Supreme Court's holding in Dollison v. Osborne County, 241 Kan.
374, 737 P.2d 43 (1987). He also cites the holding in Clements v. Emery Worldwide
Airlines, Inc., 44 F. Supp. 2d 1141 (D. Kan. 1999), for its analysis of and reliance on
Dollison.

In Clements, plaintiff sought overtime wages under the KMWMHL from his
employer, which was engaged in interstate commerce and had the requisite sales volume
to subject the employer to regulation under the FLSA. The employer claimed it was
subject to the FLSA and that plaintiff was excluded from coverage under the KMWMHL.
After noting the plain language of the KMWMHL, K.S.A. 44-1202(d), that "employer"
does "not include any employer who is subject to the provisions of the [FLSA]," the
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district court examined Dollison and concluded: "Under the Dollison court's
interpretation of the KMWMHL, it is clear that even though the defendant may be
exempt from paying overtime under the FLSA, it is still required to pay the overtime
under Kansas law." Clements, 44 F. Supp. 2d at 1147.

We read Dollison differently than do Brown and the district court in Clements. It
is important to read Dollison closely and understand what was really at issue in the case.

In Dollison, the employer was Osborne County, a unit of local government. The
wage claims at issue there arose during a time when the FLSA had been interpreted by
the United States Supreme Court not to apply to state and local governments. While a
later United States Supreme Court decision reversed that interpretation—making the
FLSA applicable to state and local government—the Dollison opinion recognized that the
later Supreme Court decision was not retroactive and, thus, the FLSA did not apply to the
claims against Osborne County. Instead, all of the pay claims at issue in Dollison arose
before the FLSA was applied to local governments. 241 Kan. at 384-85.

Dollison dealt with a defense to an overtime claim that is the exact opposite of the
defense being asserted here. Dollison's employer, Osborne County, did not contend that
it was exempt from the requirements of the KMWMHL because it was already subject to
the FLSA. It could not make that argument because the FLSA had no application to local
governments at that time. Instead, Osborne County apparently contended that it was
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exempt from coverage under the KMWMHL because it was exempt under the FLSA. At
least, that is how the district court treated the employer's defense. The district court
relied on an exemption from the FLSA to determine that Osborne County had no
obligation to pay further wages to Dollison. On appeal, our Supreme Court held that an
FLSA exemption could not shield Osborne County from possible liability under the
KMWMHL. 241 Kan. at 385.

Here, however, Ford and Nebraska assert the opposite. They contend they are
exempt from coverage under the KMWMHL because they are subject to the FLSA.

Returning to the facts in Dollison, the Osborne County undersheriff sued the
county for overtime pay under the KMWMHL. The district court denied relief, finding
that the county's sheriff's department met the FLSA exemption that applied to law
enforcement organizations with fewer than five employees. 29 U.S.C. § 213(b)(20)
(2006). In doing so, the district court failed to address the issue of coverage under the
KMWMHL, the statutory basis for Dollison's claim. The Supreme Court reversed and
remanded.

The fewer than five employees exception in law enforcement activities found in 29
U.S.C. § 213(b)(20) (2006) of the FLSA is not also found in the KMWMHL. The district
court denied Dollison's claim based on his employer being exempt under the FLSA. But
Dollison's claim was based upon a violation of the KMWMHL, not the FLSA. The
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district court apparently considered the FLSA and the KMWMHL as coextensive; that is,
exclusion from one means exclusion from both.

Our Supreme Court noted that, pursuant to K.S.A. 44-1202(d), "Kansas law does
not apply to 'employers' who are obliged to meet the standards of the FLSA." 241 Kan.
at 381. The statute specifically excludes "any employer who is subject to the provisions
of the [FLSA]." 241 Kan. at 381. But the district court denied overtime payment not
because Dollison was excluded under the KMWMHL, but because he was excluded
under the FLSA. This was despite the fact that the KMWMHL has a specific overtime
pay provision applicable to an employee engaged in law enforcement. K.S.A. 44-
1204(b). The Supreme Court stated:

"It may be that an employee is required to work longer before he
qualifies for overtime pay under the KMWMHL than under the FLSA, but
this does not detract from the plain wording of the Kansas law. If an
employment relationship is excluded from the FLSA under the exemption
that is unique to the federal law, the employee would still be subject to the
KMWMHL." 241 Kan. at 383.

Thus, the Supreme Court rejected the notion that the FLSA and the KMWMHL
are coextensive. In other words, being exempt from coverage under the FLSA does not
automatically mean the employer is exempt under the KMWMHL. Such a notion would
"effectively nullify the state law." 241 Kan. at 383. Because the district court resolved
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the matter based on an exemption in the FLSA without considering whether there was an
applicable exemption under the KMWMHL, the Supreme Court remanded the case for
further consideration of Dollison's claim under Kansas law.

Dollison's reference to exemptions and being exempt is somewhat confusing—and
perhaps misleading—when divorced from the factual context of that case. The employer
in Dollison simply was not subject to the FLSA at all. However, a different employer
may be subject to the FLSA yet exempt from some aspects of the employer-employee
wage relationship, such as the payment of overtime. In such a different context, the
language of Dollison cannot be applied literally.

The Dollison court relied on "the plain wording of the Kansas law." 241 Kan. at
383. So do we. Dollison does not control the outcome in Brown's case. The plain
wording of K.S.A. 44-1202(d) does.

The KMWMHL regulates not only the payment of overtime, but sets the minimum
hourly wage employees must be paid. K.S.A. 44-1203. So does the FLSA. 29 U.S.C. §
206(a). But the KMWMHL applies only to "employers" as defined by the statute. The
KMWMHL definition of "employer" excludes entities subject to regulation under the
FLSA. K.S.A. 44-1202(d).

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Ford and Nebraska are subject to the FLSA because each does more than $500,000
of annual interstate business. As employers satisfying the jurisdictional requirements of
the FLSA, Ford and Nebraska are obligated to pay their employees at least the federal
minimum wage mandated by the FLSA, see 29 U.S.C. § 206(a), not the traditionally
lesser minimum wage mandated under the KMWMHL. Failure to do so would subject
them to liability under the FLSA, not the KMWMHL. For this reason alone, they are
subject to FLSA regulation and therefore excluded from the KMWMHL by K.S.A. 44-
1202(d). However, the FLSA also prohibits Ford and Nebraska from using gender as a
basis for setting pay. See 29 U.S.C. § 206(d). It prohibits Ford and Nebraska from hiring
underage drivers. See 29 U.S.C. § 212(c), (d) (2006). Further, it requires Ford and
Nebraska to keep certain records regarding Brown's employment. See 29 U.S.C. § 211(c)
(2006). It is clear to us that Ford and Nebraska are subject to regulation under the FLSA.
Thus, they are not "employers" under the KMWMHL.

3. If the FLSA takes Ford and Nebraska out of state wage and hour control, is
Brown still entitled to KMWMHL overtime?

Brown seems to argue that Ford and Nebraska are subject to regulation under both
acts: the FLSA for its higher minimum wage, gender equality, and child labor
provisions, etc., and the KMWMHL for its overtime pay guarantee. But reading the plain
language of K.S.A. 44-1204(a) indicates otherwise.

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Under K.S.A. 44-1204(a), only "employers" are required to pay overtime. The
definition of "employer" in the KMWMHL excludes those employers "subject to" the
FLSA. K.S.A. 44-1202(d). Because Ford and Nebraska are subject to FLSA regulation,
they are not "employers" as that term is used in the KMWMHL. Because they are not
"employers" under the KMWMHL, they owe their employees, including Brown, no duty
to pay Kansas overtime wages under the plain language of K.S.A. 44-1204(a).

Foreign Cases

Brown cites a host of cases in his brief which seem to support the result he
advocates. However, careful consideration of these cases reveals distinctions which
clarify and reinforce our reading of the KMWMHL.

Brown relies on Berry v. KRTV Communications, 262 Mont. 415, 865 P.2d 1104
(1993), which presents facts analogous to those now before us. Berry was a television
news announcer and editor for a Montana television station. The district court denied
Berry's claim for unpaid overtime pay based on the FLSA news announcers and editors
exemption, even though Berry based his claim on Montana's wage and hour law. Berry
appealed. On appeal, KRTV argued that because it was an employer under the terms of
the FLSA, its employees were covered by the FLSA by implication. Since its employees
were FLSA employees, KRTV reasoned, the Montana wage and hour laws' FLSA-
18
regulated-employees exemption prevented Berry from claiming overtime under Montana
law.

The Montana Supreme Court rejected KRTV's position and reversed the ruling of
the district court. The court determined that Montana had not adopted the FLSA
announcer exemption into its wage and hour law. The court held that the FLSA did not
preempt Montana from providing greater overtime protection than was available under
the FLSA. 262 Mont. at 425-26. The relevant statute, Mont. Code Ann. § 39-3-408(1)
(1993), read:

"'The provisions of this part shall be in addition to other provisions now
provided by law for the payment and collection of wages and salaries but
shall not apply to employees covered by the' [FLSA, except that Montana
may set a higher minimum wage.]" Berry, 262 Mont. at 420.

Berry is distinguishable from our case because the wage and hour statutes in
Kansas and Montana are different. KRTV made the same basic argument Ford and
Nebraska make here, i.e., because an employer is subject to FLSA regulation, the state
statute does not apply by its plain terms. However, while both Kansas and Montana
utilize FLSA-regulated-employee exemptions in their respective wage and hour statutes,
the Montana law contains no FLSA-regulated-employer exclusion comparable to K.S.A.
44-1202(d). The Berry Court rejected KRTV's attempt to read the FLSA-regulated-
employer exemption into Montana's wage and hour law. 262 Mont. at 420, 425-26.
19

Here, we need read nothing into the Kansas statute. K.S.A. 44-1202(d) expressly
excludes from KMWMHL regulation any employers who are subject to regulation under
the FLSA. Therefore, the "employers" who must pay overtime under K.S.A. 44-1204(a)
do not include those employers who are subject to FLSA regulation. Because Ford and
Nebraska are FLSA-regulated employers, they owe Brown no duty to pay overtime under
the KMWMHL. Berry holds that Montana's statute would not support the defense Ford
and Nebraska advance here. But Kansas' law, because of K.S.A. 44-1202(d), does
support this defense. Accordingly, Berry does not apply.

Brown cites District of Columbia v. Schwerman Trucking Co., 327 A.2d 818 (D.C.
Cir. 1974), and Williams v. W.M.A. Transit Company, 472 F.2d 1258 (D.C. Cir. 1972), as
support for the proposition that the Kansas Legislature did not intend to include the
interstate motor carrier exemption in the KMWMHL. In the District of Columbia cases,
the courts noted that the D.C. municipal code followed the FLSA exemption list closely
but omitted the bus driver exemptions, indicating Congressional intent to include bus
drivers as employees eligible for overtime under the D.C. code. See Schwerman, 327
A.2d at 823-24. From this, Brown argues that the Kansas Legislature's failure to include
truck drivers on a KMWMHL exemption list indicates legislative intent not to exclude
truck drivers from overtime pay eligibility.

20
But Ford and Nebraska do not challenge Brown's claim on the basis of any
KMWMHL employee exemption. Instead, the defendants here rely on the fact that our
legislature excluded FLSA-regulated employers from compliance with the KMWMHL.
The issue here is an employer exclusion, not an employee exemption. Further, as the
Dollison Court made clear, the FLSA exemption and the KMWMHL exemption do not
need to be the same for an employer to avoid paying KMWMHL overtime pay. Here,
Brown is exempt from FLSA overtime pay because of the FLSA's interstate motor carrier
exemption, and Ford and Nebraska owe Brown no overtime pay under the KMWMHL
because neither is an "employer" under K.S.A. 44-1202(d) and K.S.A. 44-1204(a). The
issue here is the effect of K.S.A. 44-1202(d) on the mandate of K.S.A. 44-1204(a).
Schwerman and Williams do not advance Brown's cause.

In Goldberg v. Faber Industries, Inc., 291 F.2d 232 (7th Cir. 1961), discussed
earlier in this opinion, the court was concerned with the applicability of the interstate
motor carrier exemption contained in the FLSA. The court ruled that the actions of
individual drivers determined the applicability of the exemption as to each driver. See
291 F.2d at 234. Here, no one disputes that Brown is subject to the interstate motor
carrier exemption. The issue is the applicability of the FLSA-regulated-employer
exclusion in the KMWMHL. The object of inquiry under the FLSA-regulated-employer
exclusion in Kansas law has everything to do with the nature of Ford's and Nebraska's
businesses—because they are the alleged "employers"—and nothing to do with Brown or
his job as an employee. In Goldberg, the appropriate object of analysis was the
21
employees' job duties because the employees were the target of regulation. Here, the
relevant KMWMHL provision targets the employers' business activities to determine
KMWMHL coverage.

Brown's reliance on Friedrich v. U.S. Computer Services, Inc., 1996 WL 32888
(E.D. Pa. 1996), is likewise misplaced. In that case, the relevant Pennsylvania wage and
hour law excluded FLSA-covered employees only "'to the extent' that they were 'subject
to' the FLSA." 1996 WL 32888, at *5. This meant that the Pennsylvania law operated as
a stopgap to the FLSA, and the statute apparently contained no FLSA-employer
exemption. But here, the reach of the KMWMHL depends on the applicability of the
FLSA to the employment relationship. See Dollison, 241 Kan. at 382. At least as it
concerns overtime pay, the KMWMHL is not a stopgap measure like Pennsylvania's
statute. Under the provisions of K.S.A. 44-1202(d) and K.S.A. 44-1204(c), if either the
employer or the employee is subject to FLSA regulation, the Kansas law does not apply.
Friedrich, like Berry, is based on a different statutory scheme and does not apply.

In Santoni Roig v. Iberia Lineas Aereas de Espana, 688 F. Supp. 810 (D. Puerto
Rico 1988), the issue was whether the FLSA preempted a local wage and hour law. The
court noted that 29 U.S.C. § 218 (1982) expressly disavows federal preemption of state
laws which establish minimum wages or work weeks more beneficial to employees, so
there was "no reason to exempt plaintiffs herein from the local minimum wages and
overtime provisions on preemption grounds." 688 F. Supp. at 818. The court was silent
22
on the subject of whether the employees in question were exempt from overtime pay
under the local law's provisions.

Here, neither defendant argues that the FLSA preempts the KMWMHL. Instead,
the issue is the scope the Kansas law sets for itself. In Santoni Roig, the employer
asserted federal preemption to circumscribe state law. Ford and Nebraska defend on the
ground that Kansas law, by its own terms, does not apply to them. Preemption is not at
issue here.

A similar case cited by Brown is Tidewater Marine Western, Inc. v. Bradshaw, 14
Cal. 4th 557, 59 Cal. Rptr. 2d 186, 927 P.2d 296 (1996), which considered the
preemption of admiralty law. Here, our sole focus is determining the scope of Kansas
law under the clear terms of the KMWMHL. See Dollison, 241 Kan. at 382. Therefore,
Santoni Roig and the other FLSA preemption cases Brown cites, e.g., Keeley v. Loomis
Fargo & Co., 11 F. Supp. 2d 517 (D. N.J. 1998), Plouffe v. Farm & Ranch Equip. Co.,
174 Mont. 313, 570 P.2d 1106 (1977), Dept. of Labor & Indus. v. Common Carriers, 111
Wash. 2d 586, 762 P.2d 348 (1988), and, are irrelevant to our inquiry.

Finally, Brown cites Masters v. City of Huntington, 800 F. Supp. 369, 370 (S.D.
W. Va. 1992), in which the federal district court found that municipal firemen were
entitled to overtime under the more generous state law. The court found that the state
wage and hour law included city firefighters because the South Dakota Supreme Court
23
had ruled that such firefighters were employees of a "political subdivision," an employer
category specifically omitted from the state wage and hour law's exclusions list and,
therefore, by implication within the ambit of the state wage and hour law. 800 F. Supp.
at 371. To the contrary, in the case now before us, FLSA-regulated employers are
specifically excluded from KMWMHL compliance by our state statute. Masters does not
advance Brown's cause.

Other Arguments

Brown argues that when it comes to FLSA coverage, "exempt" and "exclude" are
synonyms. However, a party may be exempt from certain aspects of the FLSA without
being categorically or jurisdictionally excluded from the statute. For example, even
though Ford and Nebraska are exempt from the overtime pay requirements of the FLSA,
they may not pay a driver lower wages based on gender, nor may they employ underage
truck drivers, regardless of pay. They are not excluded from the FLSA just because they
do not have to pay Brown overtime. However, because of their status as FLSA-regulated
employers, they do not fall within the category of employers set forth in K.S.A. 44-
1202(d) who are subject to the KMWMHL.

Brown also argues that KMWMHL overtime pay coverage should be determined
from the employee's perspective. However, Brown relies on cases dealing only with
FLSA coverage for this argument. As noted earlier in our discussion of Goldberg v.
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Faber Industries, Inc., and Schultz v. Poirier, each of his cases predates the advent of
enterprise coverage in 1961 and 1966. Before enterprise coverage was added to the
FLSA, courts focused on an employee's actions to determine whether the FLSA applied.
Now, however, the FLSA also takes an employer's transactions and annual revenue into
account for determining FLSA jurisdiction. Likewise, the KMWMHL applies to an
employer only if the employer is not already regulated by the FLSA. Therefore, the
"employee perspective" argument does not advance Brown's position.

Brown argues extensively from the legislative history of the KMWMHL.
Legislative history is a valuable tool in construing an unclear or ambiguous statute.
However, the plain language of the statute is the controlling expression of the
legislature's intent. Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508
(2008). We do not resort to an examination of an enactment's legislative history if the
statute's language is clear and unambiguous. See Double M Constr. v. Kansas
Corporation Comm'n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). The KMWMHL, in
clear and unambiguous terms, excludes employers from KMWMHL overtime
compliance if either the employer or the employee is regulated by the FLSA. K.S.A. 44-
1202(d); K.S.A. 44-1204(c)(1). Ford and Nebraska are subject to FLSA regulation.

We find no genuine issue of material fact which would preclude summary
judgment. Based upon our de novo review, Ford and Nebraska are entitled to judgment
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on Brown's claims for relief which have been brought pursuant to the KMWMHL. The
district court was correct in so ruling.

Affirmed.