ARGUMENT: October 12, 2018
OF APPEAL Circuit, L.C. No. 2014CV2791, Dane Ellen K. Berz
OF DECISION OF THE COURT OF APPEALS Reported at 380 Wis.2d
282, 913 N.W.2d 234 (2018 - unpublished)
the defendant-respondent-petitioner, there were briefs filed
by David J.B. Froiland, Christine Bestor Townsend, and
Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.,
Milwaukee, with whom on the briefs were Lynn M. Stathas,
Malinda J. Eskra, and Reinhart Boerner Van Deuren S.C.,
Madison. There was an oral argument by David J.B. Froiland.
the plaintiffs-appellants, there was a brief filed by Kurt C.
Kobelt and Law Offices of Kurt C. Kobelt, Middleton. There
was an oral argument by Kurt C. Kobelt.
Messrs. Christopher Kieninger and Dewayne Meek tell us that
Wisconsin's statutes and regulations require their
employer to pay them for the time they spend driving a
company-provided vehicle between their homes and their
assigned jobsites. Because our laws do not impose such an
obligation, we reverse the court of appeals.
Crown manufactures industrial equipment, including forklifts.
It employs field service technicians
("Technicians") throughout Wisconsin to service
that equipment. Technicians travel to customers'
locations in Crown's vans, which are stocked with the
tools, equipment, and supplies necessary to their
work. Crown's dispatchers and the
Technicians collaboratively schedule the service calls to, in
part, minimize travel time and maximize time spent serving
the customers. Technicians typically are able to choose which
service calls will be the first and last of the day.
Technicians have the choice of commuting between work and
home in either their personal vehicles or the company's
vans. A Technician choosing the former drives his personal
vehicle to his assigned branch prior to the beginning of his
shift. There, he picks up the company van and makes his
appointed rounds. At the end of his shift, he takes the van
back to his branch location, and drives his personal vehicle
home. If he chooses the latter option, he drives the company
van home after the last service call of the shift, and the
next day drives it directly to the first scheduled service
call. Technicians who commute in a company van usually
arrange the first and last appointments so they are as close
to home as possible.
Crown pays its Technicians for all of the time they spend
traveling between jobsites as well as between jobsites and
Crown facilities. It does not pay them for commute time
between home and work when using their personal vehicles.
Commute time in a Crown-provided van is handled differently.
Historically, Crown paid for time spent commuting in a
company van between home and the first or last service call,
except for the first 30 minutes of each. That policy changed
in September 2013.
The new policy still allows a Technician to commute in one of
Crown's vans. It provides that "[h]ourly Technicians
who drive a company vehicle in the course of employment with
Crown may be given the option to park the vehicle at home
between shifts." With respect to compensation for travel
between home and work, however, the Commute Travel Time
Guidelines (the "Guidelines") now say the
Travel at the Beginning of the Work Day
technician will begin clocking compensated time when one of
the following has occurred:
1. The technician has arrived at the customer guard shack or
customer's parking space.
2. The technician has arrived at the branch.
3. The technician arrives at location for the vehicle to be
4. Forty five (45) minutes of commute travel has elapsed.
Commute travel greater than 45 minutes at the beginning of
the work day will be compensated.
Travel at the End of the Work Day
work day ends when all work related activities have been
completed. This includes properly placing all tools and other
items in the vehicle, completing all forms and paperwork, and
communicating with dispatch as necessary. Commute time begins
when the technician has left the last work location. A
technician's commute from the assigned work area to home
is not compensated.
Messrs. Kieninger and Meek are two of Crown's
Technicians. They both opted to commute between home and work
in Crown's vans, and each signed a copy of the
Guidelines. Nevertheless, they believe that the entire time
spent commuting between home and work in a company van is
"an integral part of their jobs" for which they
must be paid.
Mr. Kieninger filed a complaint with the Wisconsin Department
of Workforce Development (the "DWD") claiming
entitlement to unpaid wages based on his commute time in a
company van. The DWD dismissed the claim. Mr. Kieninger
reprised his claim in a complaint filed in the Dane County
Circuit Court, in which he proposed to represent a class
comprising all similarly-situated Crown Technicians. He
amended his complaint to add Mr. Meek as a named party, and
the circuit court subsequently certified the class pursuant
to Wis.Stat. § 803.08 (2013-14). The parties filed competing
motions for summary judgment on the question of whether
commute time in a company-provided vehicle is compensable.
They each assured the circuit court that the case presented
no genuine issue as to any material fact.
The circuit court granted Crown's motion. It reasoned
that it must interpret Wisconsin's labor laws
consistently with federal labor laws. Because it concluded
that the federal Employee Commuting Flexibility Act (the
"ECFA") definitively answered the question, it
adopted a conforming interpretation of Wisconsin's labor
regulations and dismissed the complaint. Messrs. Kieninger
and Meek-we will refer to them collectively as "Mr.
Kieninger" unless the context requires otherwise-
The court of appeals disagreed with the circuit court's
use of the ECFA to develop an interpretation of
Wisconsin's regulations. See Kieninger v. Crown
Equipment Corp., No. 2017AP631, unpublished slip op.,
¶21 (Wis. Ct. App. Jan. 18, 2018) ("Crown does not
convincingly explain why ECFA language-wording that was not
adopted by the Wisconsin Legislature-should control over the
language actually in place."). As to whether
Wisconsin's statutes and regulations- without reference
to federal law-require payment for commuting time in a
company-provided vehicle, the court of appeals said it was
"uncertain whether under the correct standard there
might be one or more genuine issues of material fact,"
id., ¶3, and so reversed the circuit court and
remanded for further briefing. Crown petitioned for review.
We agree with the court of appeals that the ECFA does not
guide our application of Wisconsin law in this case. However,
we do not agree that further briefing is necessary, or that
there may be a genuine dispute as to a material fact. We
conclude that Crown is entitled to summary judgment in its
favor, and so we reverse the court of appeals.
STANDARD OF REVIEW
We review the disposition of a motion for summary judgment de
novo, applying the same methodology the circuit courts apply.
Green Spring Farms v. Kersten, 136 Wis.2d 304, 315,
401 N.W.2d 816 (1987); see also Borek Cranberry Marsh,
Inc. v. Jackson Cty., 2010 WI 95, ¶11, 328 Wis.2d
613, 785 N.W.2d 615 ("We review the grant of a motion
for summary judgment de novo . . . .") . First, we
"examine the pleadings to determine whether a claim for
relief has been stated." Green Spring Farms,
136 Wis.2d at 315. Then, "[i]f a claim for relief has
been stated, the inquiry . . . shifts to whether any factual
issues exist." Id. Summary judgment is
appropriate only "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a