No. 92-330
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
MACKLIN D. BERRY,
Plaintiff and Appellant,
v.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick F. Flaherty (argued), Attorney
at Law, Great Falls, Montana
For Respondent:
Robert P. Goff and Jean E. Faure (argued),
Church, Harris, Johnson & Williams,
Great Falls, Montana
For Amicus Curiae:
Donald C. Robinson and J. Richard Orizotti
(argued), Poore, Roth & Robinson, Butte,
Montana (for Patrick Kearney)
Daniel B. McGregor, Montana Department of
Labor and Industry, Helena, Montana
Jerome T. Loendorf, Harrison, Loendorf &
Poston, Helena, Montana (for Montana Broadcasters)
Submitted: August 30, 1993
Decided: December 15, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Macklin D. Berry commenced this action against
defendant KRTV Communications, Inc., in the District Court for the
Eighth Judicial District in Cascade County to recover overtime pay,
bonuses, statutory penalties, and attorney fees from his employer.
The District Court granted his employer's motion for summary
judgment and dismissed plaintiff's claim with prejudice based on
its conclusion that his claim for overtime pay was barred by the
federal Fair Labor Standards Act (FLSA) and that he was not
entitled to any bonus pay under the plain terms of his employment
contract. Plaintiff appeals from the District Court's decision.
We reverse in part, and affirm in part, the judgment of the
District Court.
The following issues are presented on appeal.
1. Did the District Court err when it held that plaintiff
was a covered employee under the Fair Labor Standards Act found at
29 U.S. C. 5 5 201 through 219 (1988), and therefore, that he was not
entitled to benefits for overtime work pursuant to § 39-3-405, MCA,
of Montana's Minimum Wage and Maximum Hour Act?
2. Did the District Court err by holding as a matter of law
that plaintiff was not entitled to bonus pay pursuant to the terms
of his contract with his employer?
FACTUAL BACKGROUND
In his complaint filed in the District Court on October 5,
1990, Berry alleged that he had been employed at KRTV, Inc., from
1986 through 1989 in various capacities. Principal among his
responsibilities, however, were news editing and announcing. He
alleged that from July 29, 1986, through May 19, 1989, he worked in
excess of 1211 overtime hours for which his employer had refused to
compensate him at the appropriate rate for overtime work.
Berry also alleged that his contract with KRTV provided for a
14 percent bonus when the station's local news led its competition
under certain circumstances, and that he had satisfied the
conditions for the bonus, but that KRTV had refused to pay him.
Berry sought compensation for his overtime pay in the amount
of $17,456.56, a bonus in the amount of $10,850.00, the statutory
penalties provided for in Montana's wage statutes, and attorney
fees.
In its answer to Berry's complaint, KRTV denied the substance
of his allegations. However, more importantly for purposes of this
appeal, it alleged that since he was employed as a news editor and
announcer during his tenure at the station, it was not obligated to
pay him overtime benefits under the terms of the federal FLSA.
On March 31, 1992, KRTV moved for summary judgment. In
support of its motion, it offered affidavits from Donald G.
Bradley, Patricia Roberts, and Peter Friden.
Bradley was president of KRTV Communications and stated that
the defendant is licensed by the FCC as a television station with
call letters KRTV. To establish that it was covered by the
provisions of the federal FLSA, he stated that defendant had gross
receipts from the operation of its station in excess of $500,000
per year, employed more than one employee, and was engaged in
interstate commerce.
Bradley stated that under his ownership the station had
employed Berry from December 18, 1986, until May 19, 1989, in
various capacities, including bureau chief of the news department,
news anchor, and reporter for the news department. He pointed out
that his principal responsibilities in those positions included
gathering and editing news, and acting as an announcer of news
during the station's nightly news broadcasts.
Bradley stated that Berry's eligibility for bonus pay was
limited by the terms of his written contract for employment, a copy
of which was attached to his affidavit. The written contract of
employment provided in relevant part as follows:
KRTV will pay you a bonus of 14 percent of your base pay
when our local news at 5:30 and 10:OO p.m. leads our
competition. Determination will be based on ratings and
shares in the DMA [designated market area] according to
the same ratings service (Nielsen or Arbitron), for two
consecutive rating periods.
Bradley stated that KRTV's competition were stations known by
the call letters KFBB and KTGF, and attached copies of Nielsen and
Arbitron ratings during the period of Berry's employment which
established that at no time during that employment did KRTV lead
both stations for two consecutive rating periods.
Patricia Roberts was an employee of the Montana Department of
Commerce whose affidavit was offered to establish that the
population in Great Falls, according to the 1990 census, was 55,097
people, and that the population of the Great Falls metropolitan
statistical area (coextensive with Cascade County) was 77,691
people. As will be pointed out later in this opinion, these
figures were relevant to determination of whether Berry was covered
by, or exempted from, terms of the federal FLSA.
Peter Friden stated that he was the general manager of KRTV
during part of the time that Berry was employed there and further
described the nature of Berry's work for the station.
In opposition to his employer's motion for summary judgment,
Berry did not offer facts to controvert those offered by KRTV.
Instead, he contended that, based on those undisputed facts, he was
entitled to overtime pay pursuant to Montana's Minimum Wage and
Maximum Hour Act found at §§ 39-3-401 through -409, MCA, and our
decision in Plouffe v. Farm & Ranch Equipment Company (1977), 174 Mont.
313, 570 P.2d 1106. He also argued that a reasonable
interpretation of the bonus provision in his employment contract
was that it entitled him to a bonus if KRTV led either of its
competitors in the ratings for two consecutive rating periods, and
that it had, in fact, done so.
The District Court granted KRTV's motion for summary judgment
by its decision entered on May 6, 1992. In support of that
decision, the court found as fact those statements made in the
previously discussed affidavits. The only findings of fact
challenged by Berry on appeal are findings numbered 11 and 13. In
Finding No. 13, the District Court found that Berry's l'competition'l
was both of the other television stations in Great Falls. In
Finding No. 11, the District Court found that Berry did not meet
5
the requirements for a bonus during the period of his employment
with KRTV.
Based on these findings, the District Court concluded that
KRTV is an employer in an enterprise engaged in commerce as those
terms are defined in the FLSA at 29 U.S.C. 5 5 203 (d) and 203 (s)(1)
(1988), and that Berry was an employee as defined in 29 U.S.C.
5 203(e) (1988). The District Court concluded that, although
covered by the FLSA, KRTV was not required to pay Berry overtime
benefits under that Act based on the exemption provided in
29 U.S.C. 5 213(b) (9) (l988), which pertains to announcers and news
editors. However, because of its conclusion that Berry was covered
under the federal Act, the court concluded that he was entitled to
no overtime benefits pursuant to S 39-3-408, MCA, in the Montana
Act.
The District Court concluded that its decision was not
controlled by our decision in Plouffe, but rather by our more recent
decision in Wage C l a i m of Stewart v. Child and Family Services (1990), 242 Mont .
88, 788 P.2d 913.
Based on these findings and conclusions, Berry's complaint was
dismissed with prejudice and judgment was entered in favor of KRTV.
STANDARD OF REVIEW
This Court reviews an order of summary judgment by utilizing
the same criteria used by a District Court initially under Rule 56,
..
M R civ P.. Minnie v. City of Roundup ( 199 3 ) , 257 Mont. 429, 849 P.2d
212. Pursuant to Rule 56 (c), summary judgment is proper when no
genuine issues of material fact exist and the moving party is
entitled to judgment as a matter of law.
Did the District Court err when it held that plaintiff was a
covered employee under the Fair Labor Standards Act found at
29 U.S. C. 55 201 through 219 (1988), and therefore, that he was not
entitled to benefits for overtime work pursuantto 5 39-3-405, MCA,
of Montana's Minimum Wage and Maximum Hour Act?
In this case, we are once again called upon to construe the
relationship of the federal FLSA and the Montana Minimum Wage and
Maximum Hour Act. We have had occasion to do so previously in both
Plouffe, 570 P.2d 1106, and Stewart, 788 P.2d 913. In Stewart, we
summarized the history and purpose of both Acts as follows:
In 1938, Congress passed the Fair Labor Standards
Act to prevent the use of unfair trade practices in
interstate commerce leading to "labor conditions
detrimental to the maintenance of the minimum standard of
living necessary for health, efficiency, and general
well-being of workers. . .." 29 U.S.C. 202(a). To
ensure a minimum living standard, the F.L.S.A.
establishes a minimum hourly wage, 29 U.S.C. 5 206, and
a maximum workweek without overtime compensation, 29
U.S.C. 5 207. Part of the Act's enforcement mechanism
allows employees to recover all unpaid wages plus an
equal amount in liquidated damages for any violation of
its wage and hour provisions. 29 U.S.C. 5 216(b).
Although nationwide in scope, the F. L. S.A. does not cover
all employees. See 29 U.S.C. 5 203 (e); 29 U.S.C. 5 213.
In 1971, the Montana Legislature enacted the Minimum
Wage and Maximum Hour Act. Like the federal Act, the
M.W.M.H.A. ensures workers a minimum living standard by
setting minimum hourly wages, 5 39-3-404, MCA, and
maximum allowable work hours perweek, 5 39-3-405, MCA.
Also like the F.L.S.A., the M.W.M.H.A. allows employees
to recover unpaid wages plus up to 100% in liquidated
damages, 5 39-3-407, MCA; 5 39-3-206, MCA.
Stewart, 788 P.2d at 917.
The District Court held that because Berry was covered by the
federal Act, he could not recover benefits for overtime work under
the Montana Act based on 5 39-3-408, MCA, which provides in
relevant part that:
(1) 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 Fair Labor Standards Act except
as provided in subsection (2).
Subsection 2 pertains to minimum wages and is not applicable
to this claim. However, the District Court also concluded that
while Berry was covered by the federal Act he was not entitled to
compensation for overtime worked under that Act pursuant to
29 U.S.C. 5 213(b)(9) (1988), which provides that:
(b) Maximum hour requirements. The provisions of
5 207 [29 U.S.C. 55 2071 shall not apply with respect to--
(9) Any employee employed as an announcer, news
editor, or chief engineer by a radio or television
station the major studio of which is located (A) in a
city or town of one hundred thousand population or less,
according to the latest available decennial census
figures as complied by the Bureau of Census, except where
such city or town is part of a standard metropolitan
statistical area, as defined and designated by the Office
of Management and Budgetl which has a total population in
excess of one hundred thousand . ...
On appeal, Berry contends that pursuant to 29 U.S.C.
55 213(b) (9) (1988), he was not covered under the FLSA, and
therefore, pursuant to our decision in Plouffe, he was entitled to
the overtime protection provided for in Montana's Minimum Wage and
Maximum Hour Act. He concludes that, since under the Montana Act
there is no exemption for news announcers or editors, he is
entitled to overtime pay.
The Montana Department of Labor and Industry has filed an
amicus brief in which it concurs with Berry's position.
KRTV responds that because it is an employer covered by the
FLSA, according to criteria set forth in 29 U.S.C. 8 203 (1988),
its employees are also covered by the terms of the Act. Its
argument continues that since it is covered under the federal Act,
the Montana law regarding overtime wages is not applicable pursuant
to 5 39-3-408, MCA, of the Montana Act which excludes from coverage
employees covered by the federal FLSA. Finally, it contends that,
even though covered by the federal Act, Berry is entitled to no
benefits for overtime work under that Act because of the exemption
provided for in 29 U.S.C. 8 213(b) (9) (l988), and that the
necessity of this conclusion is established by our decision in
Stewart.
We conclude that the facts in this case are more similar to
those in the Plouffe case than in the Stewart case, and therefore, that
Plouffe controls our decision.
In Plouffe, the plaintiff was a former employee of the defendant
who worked as a farm equipment mechanic for a business engaged in
the sale and repair of farm equipment. He sued to recover overtime
wages and vacation pay pursuant to Montana's Minimum Wage and
Maximum Hour Act, now codified at 8 8 39-3-401 through -409, MCA.
His employer defended on the basis that his claim under the Montana
Act was preempted by the federal FLSA and that under the federal
Act it was exempt from an obligation to pay him overtime benefits.
In that case, the employer relied on the very next subsection of
29 U.S.C. 5 213(b) (1988) after the one relied on in this case. It
provided :
(b) Maximum hour requirements. The provisions of
S 207 [29 U.S.C. § 2073 shall not apply with respect to--
(10)( A ) any salesman, partsman, or mechanic
primarily engaged in selling or servicing automobiles,
trucks, or farm implements, if he is employed by a
non-manufacturing establishment primarily engaged in the
business of selling such vehicles or implements to
ultimate purchasers ..
. .
As in this case, the district court in Plouffe concluded that,
by the nature of its business, that employer was exempt from the
requirements of Montana's ~inimumWage and Maximum Hour'Act and
dismissed plaintiff's complaint. However, on appeal, relying on
29 U. S . C. 5 213 (b)(10) (1988), we held that the FLSA expressly
exempted the employer in this case from paying overtime wages to
the plaintiff, and therefore, that the employer was not exempt from
payment of overtime wages under the Montana Minimum Wage and
Maximum Hour Act.
In arriving at our decision in Pkmffe, we concluded that there
was an express intent by our national Congress not to preempt the
field of wage and hour regulation through the enactment of
29 U.S.C. § 218 (1988), which provides in relevant part that:
(a) No provision of this chapter or of any order
thereunder 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
work week established under this chapter ...
We concluded that since the class of employees to which Plouffe
belonged was exempted from the maximum hour protection of the
federal FLSA, and since 5 218 of the Act specifically authorized
states to enact stricter standards for wages and maximum hours,
that:
[TJhe Fair Labor Standards Act does not preempt the
subject of wage, hour or overtime regulation to the
exclusion of Montana's Minimum Wages and Hours Act
I . . .
P h f f e , 570 P.2d at 1109.
In our review of PloufSe, we note that we expressly stated:
We hold that the federal air Labor Standards Act
expressly exempts the employer in this case from paying
overtime wages to plaintiff. Section 207 of the Fair
Labor Standards Act provides that no employer shall
employ any of his employees for a workweek longer than
40 hours unless such employee receives time and a half
his regular rate of pay for the excess. Section 213
provided :
Iq(b) The provisions of Section 207 of this title
shall not apply with respect to-- . . .
f' (10)Any
salesman, partsman , or mechanicprimarily engaged
in selling or servicing automobifes, trailers, trucks, f a m
implements, or aircraft if employed by a norzmanufacturing establishment
primarily engaged irz the business of selling such vehicles to ultimate purchasers.
....
This exemption from payment of overtime wages clearly
applies under the admitted facts of this case.
Plouffe, 570 P.2d at 1107. However, in our concluding summary, we
stated as follows:
In summary, we hold that the Fair Labor Standards
Act does not preempt the subject of wage, hour or
overtime regulation to the exclusion of Montana's Minimum
Wages and Hours Act; that the employer here is not exempt
from payment of overtime wages under either the Fair
Labor Standards Act exemption or Montana's Minimum Wages
and Hours Act ....
It must be kept in mind that a principal issue in Plouffe was
whether the claimant was precluded from coverage under the State
Act based on the doctrine of federal preemption. The employer in
that case argued that he was exempt from payment of overtime
benefits under either state or federal law because the exemption in
federal law preempted coverage under the state law. However, after
discussing § 218 of the FLSA, we concluded there was no preemption,
and that is what was referred to in our summary paragraph when we
stated that the employer was not exempt from payment of overtime
wages under the federal Act. While unartfully stated, that section
clearly referred to the employer's federal preemption argument. In
order that there may be no misunderstanding from Plouffe, we
expressly construe the opinion in Plouffe to mean that the federal
FLSA exempted the employee from coverage.
The concurring opinion criticizes Plouffe for not discussing
5 39-3-408, MCA. However, that section was not raised by the
employer as a defense in that case. It makes no difference.
Section 39-3-408, MCA, is simply a codification of federal
preemption, and by resolving the issue of federal preemption, the
Plouffe case addressed the very same issue that is raised in this
case pursuant to g 39-3-408, MCA.
KRTV argues that our decision in Plouffe should not control the
outcome of this case because 15 years has passed since that
decision; its result is questionable in light of our decision in
Stewart; and the effect of 5 39-3-408, MCA, was not discussed in
Plouffe. First, we note that the passage of time has not changed the
statutory law relied on in Plouffe, nor the necessary conclusions
from its application. Second, we conclude that 5 39-3-408, MCA,
does not pertain to Berry because pursuant to the exemption
provided for in 29 U.S.C. § 213(b)(9) (1988), he is not an employee
covered by the FLSA with regard to overtime payment. Finally, the
facts in our decision in Stewart are clearly distinguishable from
this case.
In Stewart, the plaintiffs were employees of a defendant
corporation which provided residential care facilities for the
developmentally disabled and multiply handicapped. The duties
required that they spend overnight on their employer's premises.
However, if they received five consecutive hours of uninterrupted
sleep, they were compensated for only the time they spent attending
to clients. If they did not receive five consecutive hours of
uninterrupted sleep, they were paid for the entire overnight
period. The employer established this policy in reliance on
opinions from employees of the Wage and Hour Division of the United
States Department of Labor.
The claimants in the Stewart case filed claims for the time
spent on their employer's premises when they were sleeping and
uncompensated. In defense to the employees' claims, the defendant
in Stewart argued that since it had been advised by a government
official that it was complying with the law, it had an affirmative
defense to its employees' claims pursuant to the good faith defense
provided by the Portal-to-portal Act codified at 29 U.S.C. 5 5 216,
251 through 262 (1988). The District Court concluded that if the
claims were barred under the federal Act, then there was coverage
under Montana's Minimum Wage and Maximum Hour Act. On appeal, we
reversed based on a distinction between lack of coverage under the
federal Act and an affirmative defense to a claim under the federal
Act. Significantly, we noted that I1[i]n the present case, the
parties do not dispute that the claimants are subject to the
F.L.S.A." Stewart, 788 P.2d at 918. We distinguished Plouffe on the
grounds that the employee in that case was not covered by the Act.
We noted that:
In Plouffe v. Fann & Ranch Equipment Co., the F.L. S.A.
exempted the employer from federal wage regulation. We
held that by enacting F.L.S.A. 5 218, Congress declined
to preempt the entire field of wage and hour regulations
and, therefore, the employee could still rely on the
M.W.M.H.A. Plo~ffe, 174 Mont. at 319-20, 570 P.2d at 1109.
Because the F.L.S.A. never applied to the employee, we
did not need to decide if the employee was covered by
both the federal and the Montana Acts.
Stewart, 788 P.2d at 919.
Finally, we concluded that since the employees in Stewart were
covered by the federal Act, and since the employer in Stewart had
satisfied the good faith affirmative defense as a matter of law by
relying on interpretations of the Administrator of the Wage and
Hour Division of the United States Department of Labor in
formulating its overnight policies, .the employeest claims were
barred.
In summary, Stewart is distinguishable from the present case
because the parties in that case did not dispute that the employees
were covered by the FLSA; they were not the subject of specific
exemption from coverage under the FLSA; and Berry is the subject of
special exemption pursuant to 29 U.S.C. § 213(b)(9) (1988) which,
as we pointed out in Stewart, requires the conclusion that the FLSA
did not apply to him.
We conclude that the Legislature's intent to provide greater
overtime protection for the class of employees to which Berry
belongs is further evident from an examination of Montana's
statutory exemptions in comparison to the federal exemptions.
The federal exemptions from overtime protection are found at
29 U.S.C. 5 213(b) (1988) and currently include 20 classifications
of employees.
The Montana exclusions are found at 5 39-3-406(2), MCA, and
include 22 classifications of employees which are, for the most
part, patterned after their federal counterparts. Notably,
however, Montana did not adopt the exclusion found at 29 U.S.C.
9 213(b)(9) (1988) which pertains to news editors and announcers
employed by television stations.
Therefore, we conclude that pursuant to the exemption found at
29 U.S.C. 9 213(b) (9) (l988), Berry was not covered by the federal
FLSA with regard to compensation for hours worked over 40 hours per
week while he was employed at KRTV. We furthermore conclude that
when the Legislature of this State adopted Montana's Minimum Wage
and Maximum Hour Act, it was aware of the exemptions provided for
in the federal Act and chose to provide a maximum work week for
employees in Berry's classification which is lower than the maximum
work week provided for under the federal FLSA. Therefore, pursuant
to 29 U.S.C. 5 218 (1988), Montana is not preempted from providing
overtime protection to Berry, and he is entitled to overtime
compensation pursuant to 5 39-3-405, MCA.
11.
Did the District Court err by holding as a matter of law that
plaintiff was not entitled to bonus pay pursuant to the terms of
his contract with his employer?
Berry was entitled to a bonus during the period of his
employment with KRTV when KRTV led its competition for two
consecutive rating periods. Berry contends that either of the
other two television stations in Great Falls was KRTV1s
competition, and therefore, if KRTV led either of them for two
consecutive rating periods, he was entitled to a bonus. He relies
on 9 28-3-206, MCA, which provides that language of a contract,
when unclear, should be interpreted against the party who caused
the uncertainty to exist.
KRTV responded, and the District Court agreed, that pursuant
to our decision in Morning Star Enterpries v. R.H. Grover ( 1991), 247 Mont.
105, 805 P.2d 553, an ambiguity in a contract does not exist unless
the contract is subject to two different interpretations and that
the language in Berry's contract is clear and unambiguous. KRTV
cites the definition for "c~mpetition~~ the American Heritage
from
Dictionary where it is defined as "the rivalry between businesses
driving for the same customer or market."
Other than the general rules for construction referred to
previously, neither party has cited any authority which directly
resolves the dispute over this term in their contract. We are left
to determine, as a matter of law, whether the term "competition,"
when used to refer to business competitors, means all of those
competitors or can pertain to each competitor individually. We
look for guidance to Webster's Ninth New Collegiate Dictionary 268
(1984) where competition, in the sense that it is used in this
contract, is defined as "one's competitors."
Black's Law Dictionary, while not discussing "competitionw as
a description of persons or parties, refers to it as:
Rivalry. The play of contending forces ordinarily
engendered by an honest desire for gain. The effort of
two or more parties, acting independently, to secure the
custom of a third party by the offer of the most
favorable terms. It is the struggle between rivals for
the same trade at the same time; the act of seeking or
endeavoring to gain what another is endeavoring to gain
at the same time. [Citations omitted].
Black's Law Dictionary 355-56 (4th ed. 1968).
We conclude, based on the general usage suggested by the
previous authorities, that when used in a commercial setting the
term 'lcompetition"refers to all those persons or parties competing
for the same trade or economic interest. For that reason, we
affirm the District Court's conclusion that KRTV's "competition,"
as referred to in its contract of employment with Berry, included
the Great Falls television stations known by the call letters KFBB
and KTGF, and that based upon the uncontroverted documentation
provided by KRTV, it did not lead its "competition" for two
consecutive rating periods during Berry's period of employment with
that station.
Based upon these conclusions, we affirm the District Court's
judgment which dismissed Berry's claim for payment of a bonus
pursuant to the terms of his contract with KRTV, and we reverse
that part of the District Court judgment which dismissed Berry's
claim for overtime pay pursuant to the Montana Minimum Wage and
Maximum Hour Act.
We concur:
Justices
District Court Judge John W. Larson specially concurring.
Although the majority's result is correct, it is useful to
track the Legislature's actions since Plouffe does not address
g 39-3-408, MCA, the pivotal statute in the case at bar.
Plouffe does not raise, nor does it address, the effect of
g 39-3-408, MCA, which provides that the overtime pay provision of
g 39-3-405, MCA, *'shall not apply to employees covered by the Fair
Labor Standards Act except as provided in subsection (2)."
Subsection (2) is inapplicable in this case. The issue in the case
at bar, therefore, is whether plaintiff is "covered by the FLSA."
Plouffe does not address the definition of "covered1*as used in
g 39-3-408(1), MCA, despite the fact that at the time Plouffe was
decided, the predecessor to 5 39-3-408(l), MCA, provided that
Montana's minimum wage, maximum hours, and overtime pay provisions
"shall not apply to employees covered" by the FLSA. Section
41-2307, R.C.M. 1947. Plouffe, then, did not consider a statute that
was highly relevant to the case at bar.
Because Plouffe is unhelpful, and Stewart is distinguishable from
the present case, as noted by the majority, the Court must fall
back on the legislative history of Montana's minimum wage and
overtime compensation provisions as contained in 5 39-3-401
through -409, MCA, to determine whether the Legislature intended
news editors, such as plaintiff, to be entitled to overtime pay.
As noted by the majority, 5 39-3-406, MCA, contains numerous
exclusions to Montana's overtime pay provisions, most of which are
patterned on the exclusions in the FLSA. The Montana ~egislature
has amended 5 39-3-406, MCA, six times since 1981, including most
recently, in the 1993 regular legislative session. These
amendments added a total of twelve exclusions to the statute, none
of which relate to news editors employed by television stations in
small cities. Thus, despite the fact that the FLSA contains a
specific exclusion for such news editors, and despite ample
opportunity to do so, the Legislature bas never chosen to
incorporate that exclusion in the Montana statute. The only
possible conclusion is that the Legislature has specifically
decided not to exclude news editors in small cities from coveraae
by the Montana overtime pay provisions.
Thus, the majority is correct in holding that the FLSA does
not cover plaintiff in this particular case, and that since
plaintiff is not excluded from the Montana overtime pay provisions,
plaintiff is entitled to overtime pay pursuant to the Montana
provisions.
lA L?
~idrictJudge John W. Larson,
s$n
$ig for justice James C. fielson
concurrence.
lk'
Chief Justice Turnage and Jus ce Gray join t m i n g special