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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Travis Buntin v. Schlumberger Technology Corporation, Travis Buntin v. Schlumberger Technology Corporation (4/23/2021) sp-7521
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TRAVIS BUNTIN, )
) Supreme Court Nos. S-17309/17519
Plaintiff, )
) U.S. District Court No. 3:16-CV-
v. ) 00073 (TMB)
)
SCHLUMBERGER TECHNOLOGY
) O P I N I O N
CORPORATION, )
) No. 7521 - April 23, 2021
Defendant. )
)
Certified Questions from the United States District Court for
the District of Alaska, Timothy M. Burgess, Chief Judge.
Appearances: Daniel I. Pace, Pace Law Offices, Anchorage,
Timothy W.Seaver, Seaver &Wagner, LLC,Anchorage,and
Kenneth W. Legacki, Kenneth W. Legacki, P.C., Anchorage,
for Plaintiff. William J. Evans, Sedor Wendlandt Evans &
Filippi LLC, Anchorage, Aaron D. Sperbeck, Birch Horton
Bittner & Cherot, Anchorage, Martin J. Regimbal and
Jennifer D. Sims, The Kullman Firm, P.L.C., Columbus,
Mississippi, and Samuel Zurik, III, Robert P. Lombardi, and
Bryan Edward Bowdler, The Kullman Firm, P.L.C., New
Orleans, Louisiana, for Defendant. Gregory S. Fisher, Davis
Wright Tremaine LLP, Anchorage, for Amicus Curiae The
Alaska Society for Human Resource Management, State
Council.
Before: Bolger, Chief Justice, Winfree, Maassen, Carney,
and Borghesan, Justices.
WINFREE, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
Schlumberger Technology Corporation is a Texas corporation providing
technology services to the oil and gas industry in Alaska. Travis Buntin worked for
Schlumberger in Alaska until early 2016. Shortly thereafter Buntin sued Schlumberger
in federal court alleging, among other things, failure to pay overtime compensation in
violation of the Alaska Wage and Hour Act (AWHA). Schlumberger responded that
Buntin was not entitled to overtime compensation because the AWHA exempts
individualsemployed'inabonafideexecutive, administrative, or professional capacity"
from overtime payment.1
The federal court certified the following questions to us:2
1. What standard of proof applies to exemptions to the
overtime provisions of the Alaska Wage and Hour Act
(AWHA)?
2. Following Encino Motorcars v. Navarro, 138 S. Ct.
1134 (2018), should exemptions under the Alaska
Wage and Hour Act (AWHA) be given a narrow or
[3]
fair interpretation?
1 See AS 23.10.055(a)(9)(A).
2
Alaska Appellate Rule 407(a) permits us to answer questions of Alaska law
certified to us by a federal court when those questions of law 'may be determinative of
the cause then pending in the certifying court and as to which it appears to the certifying
court there is no controlling precedent in [our] decisions."
3 See Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018)
(explaining that '[b]ecause the [Fair Labor Standards Act] gives no 'textual indication'
that its exemptions should be construed narrowly, 'there is no reason to give [them]
anything other than a fair (rather than a 'narrow") interpretation' " (third alteration in
original) (quoting Antonin Scalia & Bryan A. Garner, READING LAW : THE
(continued...)
-2- 7521
----------------------- Page 3-----------------------
We accepted the certified questions. The parties submitted full briefing on the questions,
and amicus curiae Alaska Society for Human Resource Management, State Council,
submitted a brief on the standard of proof question.
We conclude that an employer must prove that an AWHA exemption
applies by a preponderance of the evidence, and we reverse our precedent to the
contrary. We also conclude that Encino 's interpretive principle that courts must give
federal Fair Labor Standards Act (FLSA) exemptions a fair interpretation applies when
the AWHA text explicitly requires alignment with FLSA interpretations.
II. STANDARD OF REVIEW
We exercise our independent judgment when answering a certified
question of law and 'select the rule of law that is most persuasive in light of precedent,
reason, and policy." 4
III. DISCUSSION
A. AWHA's Framework And 2005 Amendments
The two certified questions require an examination of the AWHA and our
case law interpreting it. The AWHA has its origins in federal labor laws. The 1938
3 (...continued)
INTERPRETATION OF LEGAL TEXTS 363 (2012))).
4 Kallstrom v. United States, 43 P.3d 162, 165 (Alaska 2002). We previously
have stated that we 'stand in the shoes of the certifying court, yet exercise our
independent judgment" when answering a certified question. See All Am. Oilfield, LLC
v. Cook Inlet Energy, LLC, 446 P.3d 767, 771 (Alaska 2019) (quoting Attorneys Liab.
Prot. Soc'y, Inc. v. Ingaldson Fitzgerald, P.C., 370 P.3d 1101, 1105 (Alaska 2016));
Schiel v. Union Oil Co. of Cal., 219 P.3d 1025, 1029 (Alaska 2009) (quoting Edenshaw
v. Safeway, Inc., 186 P.3d 568, 569 (Alaska 2008)); FDIC v. Laidlaw Transit, Inc., 21
P.3d 344, 346 (Alaska 2001). To the extent 'stand[ing] in the shoes of the certifying
court" suggests we exercise anything except our own independent judgment when
determining issues of Alaska law, we disavow that language.
-3- 7521
----------------------- Page 4-----------------------
FLSA was 'the original anti-poverty law, enacted by Congress as the country was
struggling out of [the] throes of the Great Depression."5 Through the FLSA Congress
6
established minimum wage floors and maximum workweek hours. Congress also
7
authorized states to establish their own labor laws further protecting workers. In 1959
8
the Alaska legislature enacted the AWHA. The policy behind the AWHA is to:
(1) establish minimum wage and overtime compensation
standards for workers at levels consistent with their health,
efficiency, and general well-being, and
(2) safeguard existing minimum wage and overtime
compensation standards that are adequate to maintain the
health, efficiency, and general well-being of workers against
the unfair competition of wage and hour standards that do not
provide adequate standards of living.[9]
Similar to the FLSA, the AWHA provides a minimum wage and requires employers to
pay workers overtime compensation after a maximum number of hours in a workweek
5 Webster v. Bechtel, Inc., 621 P.2d 890, 894 (Alaska 1980) (quoting Robert
IAMI L. REV. 607,
N. Willis, The Evolution of the Fair Labor Standards Act , 26 U. M
607-08 (1972)).
6 Id.
7 29 U.S.C. § 218(a) (2018) ('No provision of [the FLSA] shall excuse
noncompliance with any Federal or State law or municipal ordinance establishing a
minimum wage higher than the minimum wage established under this chapter or a
maximum work week lower than the maximum workweek established under this
chapter . . . ."); see also Quinn v. Alaska State Emps. Ass'n/Am. Fed'n of State, Cty. &
Mun. Emps., Local 52, 944 P.2d 468, 471 (Alaska 1997) (explaining that 'states 'are
given freedom of action to establish higher standards than those established by' FLSA"
(quoting E. Sugar Assocs. v. Pena, 222 F.2d 934, 936 (1st Cir. 1955))).
8 Ch. 171, SLA 1959.
9 AS 23.10.050.
-4- 7521
----------------------- Page 5-----------------------
10 11
or workday unless an exemption applies. But the AWHA mandates a more generous
minimum wage and imposes stricter overtime compensation requirements.12
The AWHA's exemptions are codified at AS 23.10.055. The exemptions
relevant to this case are those involving individuals employed 'in a bona fide executive,
administrative, or professional capacity,"13
often referred to as the 'white collar"
14 15
exemptions. Because the FLSA does not preempt the AWHA, employees often assert
16
unpaid overtime claims under both state and federal law. Although the state and federal
white collar exemptions are similarly worded, courts once used different tests to
10 AS 23.10.060; 29 U.S.C. § 207.
11 AS 23.10.055; 29 U.S.C. § 213.
12 Compare AS 23.10.065(a) (setting Alaska's minimum wage at $9.75 per
hour and requiring annual adjustments for inflation), with 29 U.S.C. § 206(a)(1) (setting
national minimum wage at $7.25 per hour); compare AS 23.10.060(b) ('An employee
is entitled to overtime compensation for hours worked in excess of [8] hours a day. An
employee is also entitled to overtime compensation for hours worked in excess of 40
hours a week."), with 29 U.S.C. § 207(a)(1) ('[N]o employer shall employ any of his
employees who in any workweek is engaged in commerce . . . for a workweek longer
than [40] 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.").
13 AS 23.10.055(a)(9)(A).
14 Defining and Delimiting the Exemptions for Executive, Administrative,
Professional, Outside Sales and Computer Employees, 69 Fed. Reg. 22122, 22122 (Apr.
23, 2004) (codified at 29 C.F.R. pt. 541).
15 Webster v. Bechtel, Inc., 621 P.2d 890, 898-99 (Alaska 1980).
16 See, e.g., Geneva Woods Pharmacy, Inc. v. Thygeson, 181 P.3d 1106, 1107
(Alaska 2008) (regarding former employee's overtime wage claim brought under both
AWHA and FLSA); Bliss v. Bobich, 971 P.2d 141, 143-44, 146 (Alaska 1998)
(regarding former employees' various claims brought under both AWHA and FLSA).
-5- 7521
----------------------- Page 6-----------------------
17
determine whether an exemption applied. The use and application of different tests led
to confusion among employers.18 The legislature accordingly amended the AWHA in
2005 to 'provid[e] definitions for persons employed in administrative, executive, and
19
professional capacities." The amendments explicitly aligned the definitions and
interpretations of the white collar exemptions with federal law: ' '[B]ona fide executive,
administrative, or professional capacity' has the meaning and shall be interpreted in
accordance with 29 U.S.C. 201-219 ([FLSA] of 1938), as amended, or the regulations
17 Minutes, H. Labor &CommerceStanding Comm. Hearingon H.B. 182, 1st
Sess. 24th Leg., 1st Sess. 4:14:47-4:18:23 (Mar. 16, 2005) (testimony of John Sedor on
behalf of Alaska Restaurant & Beverage Ass'n; Alaska Hotel Lodging Ass'n; Soc'y for
Human Res. Mgmt., Alaska State Council; Anchorage Soc'y for Human Res. Members
Mgmt.) ('One of the problems with the current state of the law . . . is that the exemptions
use the same words, so under both the federal law and the state law we have exemptions
for administrative, executive, and professional [employees]. . . . It's the same exemption
under federal law as state law, but they're deceptively similar, so there's two wholly
different tests that apply to each of them." (alteration in original)); see also Grimes v.
Kinney Shoe Corp. , 902 F. Supp. 1070, 1074 (D. Alaska 1995), superseded by statute ,
ch. 90, § 2, SLA 2005 (explaining that although both state and federal acts exempt bona
fide executive employees, applicable federal regulations established both a 'long test"
and a 'short test," but then-applicable Alaska regulations had adopted only 'long test").
18 See Minutes, H. Labor & Commerce Standing Comm. Hearing on H.B.
182, supra note 17, at 4:14:47-4:18:23 (testimony of John Sedor), 4:52:43-4:55:39
(testimony ofRobert Morris,Human Res. Dir., AlaskaChildren's Servs., LegislativeCo-
Chair, Anchorage Soc'y of Human Res. Mgmt.; testimony of Cara Fox, Human Res. and
Admin. Dir., Hawaiian Vacations, Legislative Co-Chair, Anchorage Soc'y of Human
Res. Mgmt.).
19 Ch. 90, SLA 2005. Although this case concerns the white collar
exemptions, it should be noted that the 2005 amendments also brought the AWHA's
exemptions regarding 'computer systems analyst[s], computer programmer[s], software
engineer[s], or other similarly skilled workers," into alignment with the FLSA. Id. at § 1.
-6- 7521
----------------------- Page 7-----------------------
20
adopted under those sections."
HearingtestimonyemphasizedthattheAWHAamendmentswouldaddress
21 Discussions
only one aspect: exemptions for salaried private sector employees.
regarding the amendments also focused almost entirely on removing Alaska's test for
determining if an individual qualified as an executive, administrative, or professional
employee is exempt from overtime requirements, and adopting the federal 'primary
duties" test.22 The amendment's sponsor, Representative Norman Rokeberg, explained:
[H.B. 182] sets forth some clarifications to [the AWHA] by
basically clarifying and redefining to a limited degree the
definitions ofexecutivecapacity,administrativecapacity,and
professional capacity within our code. The primary step of
this bill before us eliminates what's known as the long test or
the 80:20 test or, in the retail trade, the 60:40 test.[23]
Notably, the amendments did not adopt the federal definitions for all exemptions.24
20 AS 23.10.055(c)(1). The federal definitions for 'bona fide executive,
administrative, or professional" employees exempt from overtime are promulgated by
the federal Department of Labor at 29 C.F.R. §§ 541.100-304.
21 See Minutes, H. Labor & Commerce Standing Comm. Hearing on H.B.
182, supra note 17, at 4:09:40-4:14:47 (testimony of Rep. Norman Rokeberg); 4:14:47-
4:18:23 (testimony of John Sedor); Minutes, Sen. Fin. Comm. Hearing on S.B. 131
[House Bill (H.B.) 182], 24th Leg., 1st Sess. (Apr. 15, 2005) (written statement of Sen.
Con Bunde, sponsor of S.B. 131).
22 See generally Minutes, H. Labor & Commerce Standing Comm. Hearing
on H.B. 182, supra note 17, at 4:09:40-5:15:53; Minutes, Sen. Fin. Comm. Hearing on
S.B. 131 [H.B. 182], supra note 21, at 9:06:00-9:35:50.
23 Minutes, H. Labor & Commerce Standing Comm. Hearing on H.B. 182,
supra note 17, at 4:09:40-4:14:47 (first alteration in original) (testimony of Rep. Norman
Rokeberg).
24 See, e.g., Minutes, Sen. Fin. Comm. Hearing on S.B. 131 [H.B. 182], supra
(continued...)
-7- 7521
----------------------- Page 8-----------------------
B. The Standard Of Proof Question
1. Overview
We now turn to the first certified question:
What standard of proof applies to exemptions to the overtime
provisions of the Alaska Wage and Hour Act?[25]
We briefly have stated on three separate occasions, beginning with a holding in Dayhoff
v. Temsco Helicopters, Inc. in 1993, that the applicable standard of proof for AWHA
exemptions is beyond a reasonable doubt.26
24 (...continued)
note 21, at 9:06:00-9:35:50 (Apr. 15, 2005) ('Senator Olson asked whether this
legislation would align with FLSA[;] . . . . Sedor replied that certain aspects of Alaska's
overtime standards differ from the federal standard. The federal standard is 40 hours a
week whereas the Alaska standard is [8] hours a day or 40 hours a week. This legislation
would substantially move Alaska closer to the FLSA exempt definitional standards in
regards to executive, administrative, and professional employees . . . . This legislation
would provide an answer to the question 'what is unique about overtime in Alaska?' The
answer, in his perspective, is that Alaska pays higher wages than the rest of the nation.
Therefore, to qualify for an exemption, Alaskan businesses must compensate an exempt
administrative, executive[,] or professional employee with a rate that is 'two times the
minimum' wage. Therefore, an exempt employee's salary in Alaska would be higher
than the federal exempt wage requirement.").
25 Standard of proof refers to '[t]he degree or level of proof demanded in a
specific case." Standard of Proof, BLACK 'S LAW DICTIONARY (11th ed. 2019). The
burden of proof is '[a] party's duty to prove a disputed assertion or charge" and
encompasses two distinct concepts: the burden of persuasion and the burden of
producing evidence. Burden of Proof , B LACK 'S LAW DICTIONARY (11th ed. 2019).
Although the two concepts are occasionally conflated, the 'standard of proof" refers to
the standard by which a party must prove and persuade (i.e., beyond a reasonable doubt,
by clear and convincing evidence, or by a preponderance of the evidence). See id.
26 848 P.2d 1367, 1372 (Alaska 1993) ('If there is a reasonable doubt . . .
whether an employee meets the criteria for exemption, the employee should be ruled
(continued...)
-8- 7521
----------------------- Page 9-----------------------
In Dayhoff a helicopter pilot sued his former employer, Temsco
27
Helicopters, Inc., for unpaid overtime wages under the AWHA.
Temsco asserted that
28 The superior court granted summary judgment
Dayhoff was an exempt professional.
in Temsco's favor, holding, among other things, that Dayhoff could not recover under
the AWHA because he was an exempt professional.29 On appeal we described the
process for proving an AWHA exemption, stating:
AWHA is based upon the [FLSA] and federal interpretations
of FLSA are relevant in interpreting AWHA. Under federal
law, the employer has the burden to prove the exemption is
applicable. 'Exemptions are to be narrowly construed
against the employer." 'If there is a reasonable doubt as to
whether an employee meets the criteria for exemption, the
employee should be ruled non-exempt."[30]
26 (...continued)
non-exempt." (quoting Adam v. United States, 26 Cl. Ct. 782, 786 (Cl. Ct. 1992))),
superseded on other grounds by statute, ch. 90, § 2, SLA 2005; see also Resurrection
Bay Auto Parts, Inc. v. Alder , 338 P.3d 305, 308 n.14 (Alaska 2014) (noting standard of
proof '[wa]s not raised on appeal," but we 'have held . . . employers are required to
prove AWHA exemptions 'beyond a reasonable doubt' " (quoting Fred Meyer of Alaska,
Inc. v. Bailey, 100 P.3d 881, 884 (Alaska 2004))); Fred Meyer, 100 P.3d at 884 & n.11
(briefly noting standard of proof for AWHA exemption is 'beyond a reasonable doubt").
27 848 P.2d at 1368-69.
28 Id. at 1371-72.
29 Id. at 1369.
30 Id. at 1371-72 (citations omitted) (first quoting Reeves v. Int'l Tel. & Tel.
Corp., 357 F. Supp. 295, 297 (W.D. La. 1973), aff'd 616 F.2d 1342, 1351 (5th Cir.
1980); then quoting Adam, 26 Cl. Ct. at 786) (citations omitted)). But see Moody v.
Royal Wolf Lodge, 339 P.3d 636, 639-42 (Alaska 2014) (explaining change in AHWA
exemption determination since legislature's 2005 AWHA amendments).
-9- 7521
----------------------- Page 10-----------------------
Viewing the facts in Dayhoff's favor, we concluded: 'Dayhoff [could], at
31
most, be classified as a highly trained technician and not as a professional." We
therefore concluded: 'Temsco [did] not meet the burden of showing that the exemption
32
is applicable."
Contrary to Schlumberger's arguments, this was not dicta:
Dicta is defined as '[o]pinions of a judge which do not
embody the resolution or determination of the specific case
before the court. Expressions in [the] court's opinion which
go beyond the facts before [the] court . . . are individual
views of [the] author of [the] opinion and not binding in
subsequent cases as legal precedent." [33]
Our applicable standard of proof statement was not opinion or conjecture.
It was a statement of law explaining an employer's heavy burden for asserting an AWHA
exemption; we relied on this conclusion of law when deciding that granting Temsco
summary judgment was erroneous. Dayhoff is binding precedent on this point unless we
have reason to overrule it.34
31 Dayhoff, 848 P.2d at 1372.
32 Id.
33 VECO, Inc. v. Rosebrock, 970 P.2d 906, 922 (Alaska 1999) (first alteration
in original) (quoting Dicta, BLACK 'S LAW DICTIONARY (6th ed. 1990)).
34 We reiterated the standard of proof for AWHA exemptions a few years later
in Fred Meyer of Alaska, Inc. v. Bailey. 100 P.3d 881, 884 (Alaska 2004) ('The burden
is on the employer to prove beyond a reasonable doubt that the employee is exempt.");
see also Resurrection Bay Auto Parts, Inc. v. Alder , 338 P.3d 305, 308 n.14 (Alaska
2014) (acknowledging Dayhoff established standard of proof and stating '[a]lthough the
burden-of-proof issue is not raised on appeal, we note that other than the Fourth, the
circuits that have explicitly adopted a standard of proof for the applicability of FLSA
exemptions require proof by a preponderance of the evidence").
-10- 7521
----------------------- Page 11-----------------------
2. Schlumburger's argument that the 2005 AWHA amendments
specify the applicable standard of proof for AWHA exemptions
Schlumberger argues that the 2005 amendments mandate that AWHA
exemptions 'be interpreted in accordance with the FLSA" and that the preponderance
of the evidence standard is 'the burden that best fosters consistency between the AWHA
and [the] FLSA." Buntin responds that 'the [standard of proof] for establishing
exemptions under the AWHA is not mentioned anywhere within the legislative history
of the 2005 amendments."
As Schlumberger concedes, nowhere in the text of those amendments does
the legislature expressly specify the standard of proof for the exemptions. The
legislature's focus when enacting the 2005 amendments was creating a single standard
for determining who qualifies as an exempt employee under the state and federal white
collar exemptions. And the standard of proof for establishing exemptions also is not
35
provided in any other portions of the AWHA's text.
Schlumberger implies that the
AWHA's adoption of the federal definitions for white collar exemptions is an implicit
adoption of the preponderance of the evidence standard. But the FLSA does not provide
35 By contrast, the legislature has specified the standard of proof related to
awards of liquidated damages under the AWHA. In 1995 the legislature passed
H.B. 115, allowing a prevailing employee to obtain liquidated damages and attorney's
fees from the employer unless the employer showed 'by clear and convincing evidence
that the act or omission giving rise to the action was made in good faith and that the
employer had reasonable grounds for believing that the act or omission was not in
violation of AS 23.10.060." Ch. 37, §§ 1-3, SLA 1995. The legislature having
previously specified a different affirmative defense's standard of proof cuts against
Schlumberger's argument that the legislature intended its 2005 AWHA amendments to
specify by implication thestandard of proof for exemptions. Had the legislature intended
to impose a standard of proof for exemptions, it would have specified as much in the
amendments' text.
-11- 7521
----------------------- Page 12-----------------------
36
the standard of proof applicable to overtime exemptions. Nor do federal regulations
defining the FLSA's exemptions specify a standard of proof. 37
Because the AWHA's text and the corresponding FLSA text are silent on
the standard of proof for establishing exemptions, the relevant standard of proof is an
issue of common law.38 Our 1993 Dayhoff ruling therefore is prevailing precedent.39
36 See 29 U.S.C. §§ 201-219; see also Lederman v. Frontier Fire Prot., Inc. ,
685 F.3d 1151, 1156-60 (10th Cir. 2012) (discussing federal cases that consider burden
of proof on employers asserting FLSA exemptions and adopting common law
preponderance of evidence standard); Abou-el-Seoud v. United States , 136 Fed. Cl. 537,
563 (Fed. Cl. 2018) ('Neither the United States Supreme Court nor the United States
Court of Appeals for the Federal Circuit has discussed the relevant evidentiary standard
to be applied in determining whether an employee is exempt from the FLSA.").
37 See 29 C.F.R. §§ 541.100-.710.
38 ' 'Common law' is the body of law derived from judicial decisions rather
than from statutes or constitutions; it is a creation of the courts rather than of
legislatures." 15A C.J.S. Common Law § 2 (2020) (footnote omitted); see Young v.
Embley, 143 P.3d 936, 945 (Alaska 2006) (alteration in original) ('The common law . . .
furnishes one of the most reliable backgrounds upon which analysis of the objects and
purposes of a statute can be determined.") (quoting 2B NORMAN SINGER, S UTHERLAND
STATUTESAND STATUTORY CONSTRUCTION § 50:01 at 139 (6th ed. 2000))); Webb v. City
& Borough of Sitka , 561 P.2d 731, 733-34 (Alaska 1977) ('The common law is not a
rigid and arbitrary code, crystalized and immutable. Rather it is flexible and adapts itself
to changing conditions." (quoting State v. Morris , 555 P.2d 1216, 1223 (Alaska 1976)
(Boochever, C.J., dissenting))); see also Astoria Fed. Sav. &Loan Ass'n v. Solimino , 501
U.S. 104, 108 (1991) ('Congress is understood to legislate against a background of
common-law adjudicatory principles. Thus, where a common-law principle is well
established . . . the courts may take it as given that Congress has legislated with an
expectation that the principle will apply except 'when a statutory purpose to the contrary
is evident.' " (quoting Isbrandtsen Co. v. Johnson , 343 U.S. 779, 783 (1952) (citations
omitted))); Steadman v. SEC, 450 U.S. 91, 95 (1981) ('Where Congress has not
prescribed the degree of proof which must be adduced by the proponent of a rule or order
to carry its burden of persuasion in an administrative proceeding, this Court has felt at
(continued...)
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----------------------- Page 13-----------------------
3. Schlumberger's argument for overruling Dayhoff
Schlumberger asks us to overrule Dayhoff 's beyond a reasonable doubt
standard of proof for AWHA exemptions, arguing that it was originally erroneous and
no longer is sound because of changed conditions. Amicus curiae also supports
overruling Dayhoff 's standard, arguing that a preponderance of the evidence standard
comports with federal interpretations and that Alaska's beyond a reasonable doubt
standard 'fostersconfusionand inconsistentresults." Buntincounters that Schlumberger
has failed to identify a 'clear and obvious error" in the Dayhoff ruling; that the Alaska
legislaturehas remained silent regarding thestandard ofproofapplicable to theAWHA's
exemptions; and that Schlumberger has not shown how overruling our precedent would
do more good than harm.
Schlumberger bears the 'heavy threshold burden" of demonstrating
40 '[W]e 'will overrule a prior
'compelling reasons for reconsidering the prior ruling."
38 (...continued)
liberty to prescribe the standard, for '[i]t is the kind of question which has traditionally
been left to the judiciary to resolve.' " (alteration in original) (quoting Woodby v. INS,
385 U.S. 276, 284 (1966))).
39 SeeMoodyv.Royal WolfLodge,No.3AN-08-7621 CI,2012WL12528090
(Alaska Super. Jan. 25, 2012) ('The fact that the legislature amended AWHA to make
it consistent with the federal [FLSA] regulations does not necessarily mean that the
legislature intended to abrogate the standard of proof articulated in Dayhoff and Fred
Meyer . The amendments do not contain a specific provision on the standard of proof for
establishing that an employee is exempt from the act, nor is this issue mentioned
anywhere in HB 182's legislative history.").
40 Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska
2004); Pratt & Whitney Can., Inc. v. Sheehan, 852 P.2d 1173, 1175 (Alaska 1993)
('When a common law court is asked to overrule one of its prior decisions, the principle
of stare decisis is implicated. . . . [S]tare decisis is a practical, flexible command that
(continued...)
-13- 7521
----------------------- Page 14-----------------------
decision only when clearly convinced [(1)] that the rule was originally erroneous or is
no longer sound because of changed conditions, and [(2)] that more good than harm
41 As we decide below, Schlumberger
would result from a departure from precedent.' "
has met that burden.
a. Dayhoff 's standard of proof ruling was originally
erroneous.
Schlumberger argues that Dayhoff was originally erroneous because it
mistakenly cited a federal claims court case involving FLSA requirements for federal
employees as the basis for the standard of proof for AWHA exemptions. 'A decision
may prove to be originally erroneous if the rule announced proves to be unworkable in
practice"42 or if 'the other party 'would clearly have prevailed if [relevant issues the prior
court failed to address] had been fully considered.' "43
In Dayhoff we considered the corresponding federal law regarding
exemptions and quoted the federal claims court in Adam v. United States : 'If there is a
reasonable doubt . . . whether an employee meets the criteria for exemption, the
40 (...continued)
balances our community's competing interests in the stability of legal norms and the
need to adapt those norms to society's changing demands.").
41 Wassillie v. State, 411 P.3d 595, 611 (Alaska 2018) (second and third
alterations in original) (quoting Thomas, 102 P.3d at 943).
42 Pratt & Whitney Can., 852 P.2d at 1175; see also In re Hospitalization of
Naomi B., 435 P.3d 918, 926-27 (Alaska 2019) (discussing 'unworkable in practice"
scenario).
43 Wassillie, 411 P.3d at 611 (alteration in original) (quoting Thomas, 102
P.3d at 943).
-14- 7521
----------------------- Page 15-----------------------
44
employee should be ruled non-exempt." But Adam was taken out of context.
Adam exclusively concerned federal employees. Senior border patrol
45 The
agents had sued the federal government for overtime wages under the FLSA.
government arguedthattheagents bore the burden ofestablishing thecourt's jurisdiction
over the overtime claims and that in establishing jurisdiction the agents had to prove the
merits of their overtime claims.46 The court rejected the government's argument, noting
that the United States Supreme Court already had 'taught that there is a distinction
between the right to be heard to make a claim under a statute and the right to relief under
the circumstances. A shortcoming in the latter proof 'does not constitute an objection
to jurisdiction.' "47 The court further quoted from an attachment to a Civil Service
Commission's federal personnel manual letter: '[N]umerous judicial precedents have
firmly established the principle [] that: . . . [t]he burden of proof rests with the employer
who asserts the exemption . . . . Thus, if there is a reasonable doubt as to whether an
employee meets the criteria for exemption, the employee should be ruled nonexempt."48
44 Dayhoff v. Temsco Helicopters, Inc. , 848 P.2d 1367, 1372 (Alaska 1993)
(quoting Adam v. United States , 26 Cl. Ct. 782, 786 (Cl. Ct. 1992)), superseded in part
by statute , ch. 90, § 2, SLA 2005.
45 Adam , 26 Cl. Ct. at 783-84.
46 Id. at 785 ('Defendant claims that because the plaintiffs have the burden
of proving that this court has jurisdiction, they must prove that they are entitled to
overtime under the FLSA in order to perfect the requirements of the Tucker Act waiver
of sovereign immunity." (footnote omitted)).
47 Id. (quoting United States v. Clarke, 33 U.S. 436, 446 (1834)).
48 Id. at 786 (all but first alteration in original) (quoting U.S. C IVIL SERV.
COMM'N, A TTACHMENT TO FEDERAL PERSONNEL MANUAL LETTER NO. 551-7, at 11-12
(July 1, 1975), reprinted in OFFICE OF PERS. M GMT., B ASIC FEDERAL PERSONNEL
(continued...)
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The court quoted theletter to highlight the government's flawed jurisdictional argument,
not to definitively establish the standard of proof once the parties proceeded to trial. In
short, the 'reasonable doubt" language was not a legal statement on the standard of proof
for applying FLSA exemptions to private sector employees.
When Dayhoff was decided, common law could have directed us to a
preponderance of the evidence standard. In In re C.L.T. we examined Supreme Court
precedent for the circumstances under which proof beyond a reasonable doubt is
49 The case involved greater due process concerns than an overtime wage claim
required.
because it involved termination of parental rights.50 Even so we explained:
The [Supreme] Court recognized that the law has produced
essentially three standards or levels of proof for different
types of cases: proof by preponderance of the evidence,
proof by clear and convincing evidence, and proof beyond a
reasonable doubt. The Court suggested that in civil
proceedings, even when 'particularly important individual
interests" are implicated, the due process clause requires that
the moving party satisfy only the 'clear and convincing"
standard of proof.[51]
We held that when the state seeks to terminate parental rights because of unfitness, the
due process clause requires only a clear and convincing standard of proof.52 But in civil
cases without heightened due process concerns, the established common law is that the
48 (...continued)
MANUAL (1988)).
49 597 P.2d 518, 525 (Alaska 1979).
50 Id. at 524-25.
51 Id. at 525 (citations omitted) (quoting Addington v. Texas , 441 U.S. 418,
424-45 (1979)).
52 Id. at 526.
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53
standard of proof is a preponderance of the evidence. Moreover, FLSA cases
previously had established that asserting a FLSA exemption is an affirmative defense; 54
affirmative defenses generally are established by a preponderance of the evidence.55
The AWHA contains important protections for workers, but in Dayhoff we
provided no indication (nor has Buntin persuasively shown) that the AWHA's
protections invoke the same due process concerns as parental rights termination
53 See Herman &MacLean v. Huddleston , 459 U.S. 375, 387, 389-90 (1983)
(noting general rule in civil cases that party must prove its case by preponderance of
evidence); Addington , 441 U.S. at 423-24 (explaining three levels of proof for different
types of cases and describing preponderance of evidence standard as appropriate
standard for 'typical civil case involving a monetary dispute between private parties");
Fernandes v. Portwine , 56 P.3d 1, 5 (Alaska 2002) ('Preponderance of the evidence is
the general burden of persuasion in civil cases."); Cavanah v. Martin , 590 P.2d 41, 42
(Alaska 1979) (adopting preponderance of evidence standard for civil cases after
considering other states' standards and commentary); see also 2 K ENNETH S. B ROUN ET
., MCCORMICK ON EVIDENCE § 339 (Robert P. Mosteller ed., 8th ed. 2020 update)
AL
('According to the customary formulas a party who has the burden of persuasion of a
fact must prove it in criminal prosecutions 'beyond a reasonable doubt,' in certain
exceptional controversies in civil cases, 'by clear, strong and convincing evidence,' but
on the general run of issues in civil cases 'by a preponderance of evidence.' " (citations
omitted)).
54 Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974) (discussing
burden-shifting under Equal Pay Act and explaining 'the general rule [is] that the
application of an exemption under the Fair Labor Standards Act is a matter of affirmative
defense on which the employer has the burden of proof").
55 Nordin Constr. Co. v. Whitney Bros. Plumbing & Heating, Inc., 441 P.2d
122, 125 (Alaska 1968) (defendants required to prove affirmative defense by
preponderance of evidence); see also Martin v. Weaver, 666 F.2d 1013, 1019 (6th Cir.
1981) ('The burden of proving an affirmative defense by a preponderance of the credible
evidence is on the party asserting the defense."); Dickenson v. United States, 353 F.2d
389, 392 (9th Cir. 1965) (defendant employer must prove exemption by preponderance
of evidence).
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----------------------- Page 18-----------------------
proceedings. It was error to take Adam out of context in Dayhoff, and we should have
adopted the preponderance of the evidence standard of proof. The beyond a reasonable
doubt standard of proof adopted in Dayhoff was originally erroneous.
b. Replacing the standard with preponderance of the
evidence would do more good than harm.
Before we can overrule Dayhoff, we also must determine that overruling
56
our decision would do more good than harm.
Schlumberger spent little effort in its
brief analyzing this element, other than stating that 'application of the 'beyond a
reasonable doubt' standard . . . would be totally inconsistent with the Alaska
[l]egislature's intent and would lead to inconsistent results in cases involving both the
FLSA and AWHA exemptions." Amicus curiae makes more helpful and practical
arguments in favor of overruling Dayhoff . Amicus curiae asserts that Alaska relies on
small businesses with a flexible workforce and that the current beyond a reasonable
doubt standard discourages investment and growth in Alaska and encourages employers
to outsource labor or engage independent contractors.
When determining if overruling precedent would do more good than harm,
'we must balance the benefits of adopting a new rule against the benefits of stare
57
decisis." The standard of proof 'serves to allocate the risk of error between the litigants
58 Absent a
and to indicate the relative importance attached to the ultimate decision."
statutorily specified higher burden or particularly important individual interests at stake,
it is well established that the standard of proof in civil cases is a preponderance of the
56 State Commercial Fisheries Entry Comm'n v. Carlson , 65 P.3d 851, 859
(Alaska 2003).
57 State v. Carlin, 249 P.3d 752, 761-62 (Alaska 2011).
58 Addington , 441 U.S. at 423.
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59
evidence. A preponderance of the evidence standard 'allows both parties to 'share the
60
risk of error in roughly equal fashion.' "
Suits for unpaid wages brought under AWHA are about money.
Heightened standards of proof generally are reserved for cases in which the government
seeks to deprive an individual of a liberty interest or a fundamental right, such as
criminal cases and cases involving termination of parental rights.61 Claims for unpaid
overtime compensation simply do not raise the same concerns as do cases that may result
in the deprivation of liberty or fundamental rights. In a dispute over the applicability of
59 See, e.g., Grogan v. Garner, 498 U.S. 279, 286 (1991) (noting silence in
statute and its legislative history is inconsistent with view that Congress intended to
require special, heightened standard of proof); Herman &MacLean v. Huddleston , 459
U.S. 375, 389-90 (1983).
60 Herman, 459 U.S. at 390 (quoting Addington , 421 U.S. at 423).
61 See, e.g., In re Meredith B., 462 P.3d 522, 526 (Alaska 2020) (noting that
involuntary commitment proceedings require clear and convincing evidence standard of
proof); Howard v. State, 583 P.2d 827, 833 (Alaska 1978) (noting that it is prosecution's
burden to prove all essential elements of crime beyond a reasonable doubt); see also 25
U.S.C. 1912(f) (providing that termination of parental rights under Indian Child Welfare
Act requires beyond a reasonable doubt standard of proof); AS 47.10.088(a) (providing
that termination of parental rights requires clear and convincing evidence standard of
proof); DeNuptiis v. Unocal Corp., 63 P.3d 272, 278-79 (Alaska 2003) (explaining that
due process requires at least clear and convincing evidence standard in termination of
parental rights cases, involuntary civil commitments, deportation proceedings, and
denaturalization proceedings because '[e]ach of these categories involves sensitive
liberty interests and each involves attempts by the government to deprive individuals of
such interests"). But see Alaskan Adventure Tours, Inc. v. City & Borough of Yakutat,
307 P.3d 955, 960 (Alaska 2013) (explaining that party asserting fraud as basis for relief
from judgment under Alaska Civil Rule 60(b)(3) must prove fraud by clear and
convincing evidence); Rausch v. Devine, 80 P.3d 733, 738 (Alaska 2003) (noting
presumption that deed was validly delivered can be rebutted only by clear and
convincing evidence).
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----------------------- Page 20-----------------------
an exemption the employer and employee share the risk of error in roughly equal fashion
under a preponderance of the evidence standard. This is appropriate for suits where
money, rather than a liberty interest or a fundamental right, is at stake.
Adopting a preponderance of the evidence standard also promotes
uniformity in the law and reduces confusion in the trial process. Although we disagree
with Schlumberger that the AWHA white collar exemption's text requires us to apply
a preponderance of the evidence standard, we agree that there is a benefit to uniformity
in the law. The legislature sought to align Alaska law with federal law when it passed
the 2005 amendments, and a majority of federal courts ruling on the issue have adopted
62
a preponderance of the evidence standard of proof for the FLSA's exemptions.
Interpreting and understanding the requirements of state and federal law can be
63 this is one reason the legislature enacted the 2005
cumbersome for employers;
62 See, e.g., Meza v. Intelligent Mexican Mktg., 720 F.3d 577, 581 (5th Cir.
2013); Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151,1157-59 (10th Cir. 2012);
Renfro v. Ind. Mich. Power Co., 497 F.3d 573, 576 (6th Cir. 2007); Yi v. Sterling
Collision Ctrs., Inc., 480 F.3d 505, 506-07 (7th Cir. 2007); Dybach v. Florida., Dep't of
Corr., 942 F.2d 1562, 1566 n.5 (11th Cir. 1991); Dickenson v. United States, 353 F.2d
389, 392 (9th Cir. 1965). But see Morrison v. County of Fairfax, 826 F.3d 758, 765 (4th
Cir. 2016) (holding employers must prove exemption applies by clear and convincing
evidence); see also Mozzarella v. Fast Rig Support, LLC, 823 F.3d 786, 790-91 (3d Cir.
2016) (employers must prove 'plainly and unmistakably" exemption applies); Fezzard
v. United Cerebral Palsy of Cent. Ark., 809 F.3d 1006, 1010 (8th Cir. 2016) (same).
63 As amicus curiae points out, small businesses with a limited workforce and
resources are common in Alaska. Small businesses make up 99.1% of businesses and
MALL BUS . A DMIN., 2020 S MALL
employ over half of all Alaskan employees. U.S. S
BUSINESS PROFILE: ALASKA, https://cdn.advocacy.sba.gov/wp-content/uploads/2020/06/
04142939/2020-Small-Business-Economic-Profile-AK.pdf (2020). Amicus curiae
explains that '[b]usinesses . . . consider[ing] possibly entering the Alaska market are
astonished when they learn that the burden of proof for wage and hour exemptions is
beyond a reasonable doubt."
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----------------------- Page 21-----------------------
amendments to the AWHA's exemptions. Inconsistent standards of proof between the
AWHA's and the FLSA's exemptions mean that an employer may be required to prove,
and a factfinder may be required to analyze, whether an employee is exempt from the
corresponding exemptions using two different standards. Adopting a preponderance of
evidence standard promotes consistency between Alaska and federal law and removes
unnecessary confusion from the trial process.
Dayhoff 's standard of proof ruling is overruled; the correct standard of
proof is preponderance of the evidence.
C. Statutory Construction Of The AWHA's Exemptions 64
The second certified question asks:
Following Encino Motorcars v. Navarro, 138 S. Ct. 1134 (2018),
should exemptions under the Alaska Wage and Hour Act (AWHA)
be given a narrow or fair interpretation?
1. Encino
In Encino employees who worked for a car dealership as 'service
65 alleged that they were denied overtime compensation in violation of the
advisors"
64 When interpreting a statute, 'our goal is to give effect to the intent of the
law-making body 'with due regard for the meaning that the language in the provision
conveys to others.' " Marlow v. Municipality of Anchorage , 889 P.2d 599, 602 (Alaska
1995) (quoting Foreman v. Anchorage Equal Rights Comm'n , 779 P.2d 1199, 1201
(Alaska 1989)). 'We interpret statutes 'according to reason, practicality, and common
sense, considering the meaning of the statute's language, its legislative history, and its
purpose.' " Attorneys Liab. Prot. Soc'y, Inc. v. Ingaldson Fitzgerald , P.C., 370 P.3d
1101, 1105 (Alaska2016) (quoting Municipalityof Anchoragev.Stenseth , 361 P.3d898,
904 (Alaska 2015)). We apply a 'sliding scale approach" in statutory interpretation:
'[T]he plainer the language of the statute, the more convincing contrary legislative
history must be." Smith v. Ingersoll-Rand Co. , 14 P.3d 990, 992 (Alaska 2000) (quoting
Marlow, 889 P.2d at 602).
65 138 S. Ct. 1134, 1139 (2018) ('[Service advisors] 'mee[t] customers;
(continued...)
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66
FLSA. The FLSA exempts 'any salesman, partsman, or mechanic primarily engaged
in selling or servicing automobiles, trucks, or farm implements" at a covered
67
dealership. It was undisputed that 'service advisors" are not primarily engaged in
68
The parties
selling automobiles and that they are not 'partsm[e]n or 'mechanic[s]."
instead disputed 'whether service advisors are 'salesem[e]n . . . primarily engaged in
69
. . . servicing automobiles.' " The Ninth Circuit Court of Appeals interpreted the
exemption to require that 'salesm[e]n" be primarily engaged in 'selling" and
70
'partsm[e]n" and 'mechanic[s]" be primarily engaged in 'servicing."
71
TheSupremeCourt reversed. After considering thedictionary definitions
of the terms 'salesman" and 'servicing," the Court concluded that the statutory language
65 (...continued)
liste[n] to their concerns about their cars; sugges[t] repair and maintenance services;
sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with
customers as the services are performed (for instance, if new problems are discovered);
and explai[n] the repair and maintenance work when customers return for their
vehicles.' " (all but first alteration in original) (quoting Encino Motorcars, LLC v.
Novarro, 136 S. Ct. 2117, 2122 (2016))).
66 Id. at 1138-39.
67 Id. at 1138 (quoting 29 U.S.C. § 213(b)(10)(A)).
68 Id. at 1140.
69 Id. (alteration in original) (quoting 29 U.S.C. § 213(b)(10)(A)).
70 Id. at 1141.
71 Id. at 1143. In a previous appeal the Supreme Court held that the Ninth
Circuit had improperly deferred to a 2011 Department of Labor regulation excluding
service advisors as salesmen for purposes of the FLSA exemption. Id. at 1138-39. The
Court held in that previous appeal that the 2011 rule was procedurally defective and thus
not entitled to deference. Id. at 1139.
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of the exemption did not require employees to be physically involved in the servicing
72
process to qualify as employees 'primarily engaged in . . . servicing automobiles." The
Court said that 'the phrase 'primarily engaged in . . . servicing automobiles' must include
some individuals who do not physically repair automobiles themselves but who are
73
integrally involved in the servicing process."
The Court further concluded that 'service advisors" are covered under the
statutory exemption because the statute exempts salesmen who are primarily engaged in
either selling or servicing automobiles, trucks, or farm implements.74 The Court applied
the distributive canon of statutory interpretation:75 '[T]he use of 'or' to join 'selling' and
'servicing' suggests that the exemption covers a salesman primarily engaged in either
72 Id. at 1140-41; see 29 U.S.C. § 213(b)(10)(A).
73 Id. at 1141 (quoting 29 U.S.C. § 213(b)(10)(A)). But see id. at 1145 n.2
(Ginsburg, J., dissenting) ('Service advisors do not maintain or repair motor vehicles
even if, as the Court concludes, they are 'integral to the servicing process.' The Ninth
Circuit provided an apt analogy: '[A] receptionist-scheduler at a dental office fields calls
from patients, matching their needs (e.g., a broken tooth or jaw pain) with the appropriate
provider, appointment time, and length of anticipated service. That work is integral to
a patient's obtaining dental services, but we would not say that the receptionist-scheduler
is 'primarily engaged in' cleaning teeth or installing crowns." (alteration in original)
(citation omitted) (quoting Navarro v. Encino Motorcars, LLC, 845 F.3d 925, 932 (9th
Cir. 2017))).
74 Id. at 1141 (majority opinion).
75 'The distributive canon . . . recognizes that sometimes '[w]here a sentence
contains several antecedents and several consequents,' courts should 'read them
distributively and apply the words to the subjects which, by context, they seem most
ORMAN J. SINGER &
properly to relate.' " Id. (alteration in original) (quoting 2A N
HAMBIE SINGER, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 47:26, at
S
448 (rev. 7th ed. 2014)).
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76
activity." The Court concluded that the statutory language of the exemption therefore
demonstrated that 'service advisors" were exempt from the FLSA's overtime pay
requirements because they were 'salesm[e]n . . . primarily engaged in . . . servicing
automobiles."77
Important to this case, the Court devoted a section of its opinion to reject
previous statements that exemptions to the FLSA should be construed narrowly.78 The
Court explained:
The narrow-construction principle relies on the flawed
premise that the FLSA 'pursues" its remedial purpose 'at all
costs." But the FLSA has over two dozen exemptions in
§ 213(b) alone, including the one at issue here. Those
exemptions are as much a part of the FLSA's purpose as the
overtime-pay requirement. We thus have no license to give
the exemption anything but a fair reading.[79]
Following Encino, many federal courts have concluded that they are required to give
80
FLSA exemptions a fair reading rather than a narrow one.
76 Id. at 1141-43.
77 Id. at 1143 (quoting 29 U.S.C. § 213(b)(10)(A)).
78 Id. at 1142; see Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)
('We have held that these exemptions are to be narrowly construed against the
employers seeking to assert them and their application limited to those establishments
plainly and unmistakably within their terms and spirit.").
79 Encino, 138 S. Ct. at 1142 (citations omitted) (quoting Am. Express Co. v.
Italian Colors Restr., 570 U.S. 228, 234 (2013)).
80 See, e.g., Hurt v. Commerce Energy, Inc., 973 F.3d 509, 530-31 (6th Cir.
2020); Smith v. Ochsner Health Sys., 956 F.3d 681, 683 (5th Cir. 2020); Jordan v.
Maxim Healthcare Servs., Inc., 950 F.3d 724, 727-33 (10th Cir. 2020); Isett v. Aetna Life
Ins. Co., 947 F.3d 122, 128-29 (2d Cir. 2020); Sec'y U.S. Dep't of Labor v. Bristol
(continued...)
-24- 7521
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2. AWHA exemptions explicitly tied to FLSA
Schlumberger argues that in light of Encino Alaska courts must give the
AWHA's exemptions a 'fair reading rather than a narrow construction." Schlumberger
further contends that because the legislature intended the AWHA's exemptions to be
interpreted the same as their federal counterparts, Encino requires Alaska courts to adopt
the same interpretative standard as that for the FLSA.
Buntinmakes three main counter arguments. First, hecontends that Encino
was wrongly decided. Second, he contends that FLSA interpretations do not disturb our
AWHA precedent and that following Encino would violate stare decisis. Third, he
contends that Encino 's 'fair interpretation" standard is 'vague" and 'does nothing to
assist court[s] in deciding cases or parties in predicting the outcome of those cases."
The legislature amended the AWHA in 2005 to ensure the 'white collar"
exemptions under AS 23.10.055(a)(9)(A) were defined 'and interpreted in accordance
81 The
with [the FLSA] as amended, or the regulations adopted under those sections."
Supreme Court's holding in Encino, that the FLSA's exemptions must be given a 'fair
reading," is an interpretation of the 'white collar" exemption under the FLSA and
therefore is binding on all courts applying the FLSA's exemptions unless the Court
changes its ruling. The 'white collar" exemptions under the AWHA therefore must be
given a fair reading rather than a narrow construction.
It was a legislative choice to link the AWHA's white collar exemptions
with the FLSA counterparts, and ignoring Encino would undermine the legislature's
intent. Although we are the final authority on interpreting Alaska law, Alaska law
80 (...continued)
Excavating, Inc., 935 F.3d 122, 135 (3d Cir. 2019).
81 AS 23.10.055(c)(1); ch. 90, § 1, SLA 2005.
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----------------------- Page 26-----------------------
requires that courts applying the AWHA's white collar exemptions refer to and follow
federal interpretations of the FLSA counterparts. The fact that the Supreme Court's
interpretation in Encino may be vague does not change the statute's directive.
AWHA exemptions expressly linked to FLSA exemptions must be given
82 Absent legislative direction, AWHA exemptions not
a fair rather than narrow reading.
expressly linked to FLSA exemptions continue to be narrowly construed.83
V. CONCLUSION
The first certified question involves the standard of proof applicable to an
assertion that an employee is exempt from the AWHA's overtime and minimum wage
requirements. The standard of proof is the preponderance of the evidence.
The second certified question is one of statutory construction. Encino
requires that courts giveFLSAexemptions a 'fair reading." The legislature has specified
that certain AWHA exemptions must be interpreted like the corresponding federal
exemptions. Those exemptions, such as the white collar exemptions, accordingly must
be interpreted consistent with Encino.
82 One question left open in today's decision is whether Alaska courts are
required to apply federal rules of statutory interpretation when deciding cases involving
AWHAexemptions explicitlylinked to federalinterpretation, as whitecollarexemptions
are. The parties did not brief or argue this issue, and we do not decide it today. We note,
as some scholars have pointed out, that it is not entirely clear what the federal rules of
statutory interpretation are, and, where they exist, how binding they are. See Abbe R.
Gluck, Intersystemic Statutory Interpretation: Methodology as 'Law" and the Erie
Doctrine, 120 Y ALE L. J. 1898, 1909-11 (2011) (noting that federal rules of statutory
interpretation, with some notable exceptions, are largely unresolved).
83 See Whitesides v. U-haul Co. of Alaska, 16 P.3d 729, 732 (Alaska 2001)
(holding AWHA exemptions must be narrowly construed). We have previously noted
that although federal court interpretations of the FLSA are 'helpful in interpreting
consistent aspects of the AWHA," they are not binding. McKeown v. Kinney Shoe Corp.,
820 P.2d 1068, 1070 n.2 (Alaska 1991).
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