The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-01-277
ROBERT FOGARTY, et al.,
Plaintiffs
Vv. DECISION AND ORDER
DONALD L. GARBRECAET
LAW LIBRARY
JONES EXPRESS, INC.,
2
Defendant NUS 5
Following hearing the Plaintiffs’ Motion for Summary Judgment is Granted
and the Defendant’s Motion for Summary Judgment is denied, as follows.
FACTUAL BACKGROUND
On April 12, 1966, an assistant Attorney General provided a written
memorandum to the Maine Department of Labor addressing the issue of overtime pay
for Maine’s interstate motor carrier employees. DSMF 7 7. This memorandum
concluded that employees of interstate carriers in Maine are not entitled to overtime
pay because those employees fall under the authority of the federal Fair Labor
Standards Act (FLSA). Plaintiffs’ Response To Defendants’ Statement Of Material
Facts In Support Of The Motion For Summary Judgment Page 2. While FLSA
provides for time and one-half wages for work over 40 hours in a single workweek, it
also contains a “Motor Carrier Exemption” that excludes employees of interstate
motor carriers from its overtime provisions. 29 U.S.C. 207; 29 U.S.C. 213(b)(1).
Plaintiffs (Robert Fogerty, Joseph Frost, Dennis Carver, Donald S. Collins, and
Kenneth Castonguay) were formerly employed as truck drivers by the Defendant,
Jones Express, Inc. DSMF 1,2. Defendant is a motor carrier whose business involves
interstate commerce. DSMF 7 1. There were workweeks during Plaintiffs’
employment when they worked more than 40 hours and were not compensated at an
increased rate for those hours.
On March 8, 2001, Maine’s Chief Deputy Attorney General Linda M. Pistner
informed Plaintiffs’ counsel by letter that, upon review, the 1966 memo appeared to
be “outdated.” Plaintiffs’ Record Citation V. Ms. Pistner wrote that she would attach
to the 1966 memo a copy of her letter in order “to notify the public that (the 1966
memo) is no longer the view of this office.”’ Plaintiffs’ Record Citation V.
On March 26, 2002, the Maine legislature passed legislation, An Act to Amend
the Maine Overtime Pay Provisions Regarding Certain Drivers and Drivers’ Helpers,
Chapter 628 of the Public Laws of 2002, to establish an exemption from Maine’s
overtime law for interstate motor carriers. The legislation was made retroactive to
January 1, 1995; it was passed in an “emergency” posture so that it would take effect
immediately upon enactment; and the Governor signed it into law on April 5, 2002.
The bill was written to exclude pending lawsuits, including the instant case. Id.
DISCUSSION
The critical issue regarding the cross-motions for summary judgment is
whether the reliance within the industry on the 1966 interpretation of FLSA and
Maine’s overtime law as applied to motor carriers, together with the Doctrine of
Legislative Acquiescence, should control over the plain language of the statutes and
the more recent contradictory judicial interpretations of these statutes from other
jurisdictions.
1 Tt should be noted that the case law which rendered the 1966 memo “outdated” began developing in 1972.
Under FLSA, no employee involved in interstate commerce may work more
than 40 hours in the same workweek unless that employee receives one and one-half
that employee’s regular pay for the hours over 40. 29 U.S.C. §207. FLSA also exempts
certain categories of employees from its overtime provisions. 29 U.S.C. §213. The
“Motor Carrier Exemption” at 29 U.S.C. §213(b)(1) exempts employees of interstate
motor carriers. FLSA also provides that its provisions shall not excuse noncompliance
with more stringent federal or state laws or municipal ordinances. 29 U.S.C. §218(a).
Under Maine law, employers “may not require an employee to work more than
40 hours in any one week unless 1 1/2 times the regular hourly rate is paid for all
hours actually worked in excess of 40 hours in that week.” 26 M.R.S.A. §664. A list of
occupations exempted from Maine’s overtime law is provided at 26 M.RS.A. §664(3),
and interstate motor carrier employees were not listed until the recent amendment.
Defendant concedes that currently developing case law holds that state
overtime laws are not pre-empted by FLSA’s “motor carrier exemption.” Defendant's
Opposition to Plaintiffs’ Motion for Summary Judgment at 1. However, Defendant
cites cases supporting judicial deference to an administrative interpretation of a
statute by the agency charged with administering the statute. See Maine Human Rights
Comm'n v. Local 1361, United Paperworkers Int'l Union AFL-CIO, et al., 383 A.2d 369, 378
(1978); Harriman v. Commissioner, DHS, 595 A.2d 1053, 1057, fn.7 (Me.1991); United
States v. Clark, et al., 454 U.S. 555, 565 (1982). Defendant also cites authority for the
proposition that an administrative interpretation has been legislatively ratified in
cases where the legislature later acts on the relevant statute but leaves unchanged the
text in question. See Saxbe, Attorney General, et al. v. Bustos, et al; Cardona, et al. v. Saxbe,
Attorney General, et al., 419 U.S. 65, 74 (1974); Zemel v. Rusk, Secretary of State, 381 U.S. 1,
11-12 (1965); United States, et al. v. Rutherford, 442 U.S. 544, 553-54 (1979). Furthermore,
the intent of the 120" Maine Legislature was clearly demonstrated when, in March of
this year, it voted to exempt retroactively interstate motor carriers from the state’s
overtime law. Plaintiffs’ Opposition To Defer.dants’ Supplementary Brief Attachment
A.
However, the distinction between the case law regarding legislative
acquiescence and the present case is that we are not here faced with a debatable
interpretation of ambiguous legislative language. The text of the statute is clear and
unambiguous. While subsequent legislative actions may have been influenced by the
now discredited 1966 memo, any such mis-interpretation arises from the language of
the memo and not from the text of the statutes. In fact, the legislature’s recent action
to place interstate motor carriers on the list of employees exempt from the state’s
overtime law serves to recognize the failure of prior law to provide the exemption.
It is a well-established tenet of statutory construction that the Court looks first
to the language of the statute itself. See Soucy v. Board of Trustees Of The Maine State
Retirement System, 456 A.2d 1279 (Me.1983); Consumer Product Safety v. GTE Sylvania,
Inc., 447 U.S. 102 (1980). If the meaning of the language is plain, the Court must
interpret the statute to mean exactly what it says. Concord General Mut. Ins. Co. v.
Patrons-Oxford Mut. Ins. Co., 411 A.2d 1017, 1020 (Me. 1980). While there was an
apparent misinterpretation of the state and federal laws in the present case, there is no
_ patently ambiguous language to decipher. Without ambiguity, there is no basis on
which to proceed to consult legislative history or consider the doctrine of legislative
acquiescence for clarity. The plain language of Maine’s overtime statute indicates
that interstate motor carriers were not exempt from the state’s overtime law.
In its recent amendment to 26 M.R.S.A. §664, (3), the legislature, in section 4,
Legislative Intent, findings, acknowledges the misunderstanding created by the 1966
memorandum:
The Legislature finds that the practice in the State for at least 30 years
has been that interstate truck drivers and other employees involved in
interstate trucking have been exempted from the Maine overtime law.
This practice was developed in reliance on a 1966 written interpretation
by the Department of the Attorney General and an interpretation of the
Department of Labor that federal overtime law superceded Maine law.
These interpretations led the Departrnent of Labor to routinely defer
enforcement of overtime to the Federal Government. As a result of this
longstanding practice, a majority of employers and employees have
adjusted their expectations and developed compensation practices that
take into account the Department of Labor’s interpretation that there is
no statutory requirement for overtime pay.
These findings could be read as an invitation from the legislature to the
judiciary to invoke the doctrine of legislative acquiescence in this case, and I am sorely
tempted to accept. However, to do so would ve to legislate rather than adjudicate.
The entry will be as follows:
The Plaintiffs’ Motion for Summary Judgment on Liability is Granted.
The Defendant’s Motion for Summary Judgment is Denied.
The clerk may incorporate this order ir. the docket by reference.
Dated: July FF: 2002
PLAINTIFFS:
Donald F. Fontaine, Esq.
FONTAINE & BEAL :
PO BOX 7590 . Arthur Brennan
PORTLAND ME 04112 ustice, Superior Court
DEFENDANT
Philip J. Moss, Esq.
MOON MOSS MCGILL HAYES & SHAPIRO
PO BOX 7250
PORTLAND ME 04112-7250