Hoehne v. Sherrodd, Inc.

                                              NO.    82-510

                    I F J THE SUPREME COURT OF THE STATE O F MONTANA

                                                     1983




I N THE MATTER OF THE W G CLAIM O
                       AE        F
PERCY HOEHNE ,

                      Claimant and Respondent,



SHERRODD, I K C      .,
                      A p p e l l a n t a n d Respondent.




APPEAL FROM:          D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                      I n a n d f o r t h e County o f Y e l l o w s t o n e ,
                      The H o n o r a b l e W i l l i a m J . S p e a r e , J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F


         For A p p e l l a n t :

                      Towe, B a l l , E n r i g h t & Mackey; N e i l D.             Enright,
                      B i l l i n g s , Montana


         F o r Respondent :

                      Radovich & J o h n s o n ; George R a d o v i c h , B i l l i n g s ,
                      Montana
                      P a u l Van T r i c h t , Dept. o f Labor & I n d u s t r y ,
                      H e l e n a , Montana




                                              Submitted on B r i e f s :           June 2 ,      1983

                                                                  Decided:         August 1 8 , 1 9 8 3



Filed:




                                              Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
         Sherrodd,   Inc.,   appeals   the   Yellowstone   County
District Court dismissal of its petition for judicial review
of the Department of Labor and Industry ruling, awarding
Percy Hoehne, respondent and former employee of Sherrodd,
overtime compensation plus a penalty.        We affirm.
         Sherrodd was    in the business of providing       heavy
equipment and personnel to operate such equipment to various
oil companies.       Hoehne was employed by Sherrodd from May
1981 until January 1982 to operate heavy equipment at a rate
of $10 per hour.        During this period of time Hoehne was a
Montana resident and Sherrodd was a Hontana corporation with
its principal place of business in Montana. Hoehne sometimes
worked    in North Dakota but no actual records were kept
indicating the amount of work done there.
         Hoehne claimed that he accumulated many overtime hours
but was not paid the overtime rate for such hours. He filed
a wage     claim with    the Labor   Standards Division    of   the
Montana Department of Labor and Industry and a hearing was
held on June 22, 1982.        On July 26, 1982, the Department
ruled in Hoehne's favor, finding that he worked 349 overtime
hours and awarded him $1,745 in compensated overtime.
Further, he was awarded a penalty of $1,745 as the overtime
wages had been due in excess of the statutory time period as
set forth in section 39-3-206, MCA.
         Sherrodd timely filed a petition for judicial review
of the Department's ruling in Yellowstone County District
Court.    The Department moved to dismiss the amended petition
and on October 29, 1982, the District Court granted the
motion on the basis of the agency record.         Sherrodd brings
t h i s a p p e a l and r a i s e s two i s s u e s f o r c o n s i d e r a t i o n :

          1.      Did t h e Commissioner o f t h e Montana D e p a r t m e n t of
Labor     and      Industry        have     jurisdiction            to     decide        the    wage

claim i n question?
         2.       Is t h e c l a i m a n t e s t o p p e d      from c l a i m i n g o v e r t i m e
wages?
         S h e r r o d d f i r s t c o n t e n d s t h a t t h e Montana D e p a r t m e n t o f

Labor     and      Industry did            not    have     jurisdiction             to    rule    on
Hoehne's        wage c l a i m a s        he     o f t e n worked          i n North       Dakota.
Further,         t h e r e was     no    official        request         from North         Dakota

a u t h o r i z i n g Montana           t o proceed        on     Hoehne's         wage        claim
p u r s u a n t t o s e c t i o n 39-3-305,       MCA.

         The D e p a r t m e n t     asserts       that      it     had     jurisdiction          to

e n f o r c e Montana l a w s w i t h r e s p e c t t o H o e h n e ' s c l a i m b e c a u s e
b o t h t h e e m p l o y e e a n d t h e e m p l o y e r were r e s i d e n t s o f Montana

and     Sherrodd's          principal            place     of     b u s i n e s s was w i t h i n
Montana.         Further,        t h e employment c o n t r a c t was e n t e r e d i n t o

i n Montana and p a r t o f               t h e work i n q u e s t i o n was p e r f o r m e d
here.      The e m p l o y e r ' s r e c o r d s d i d n o t i n d i c a t e t h e amount o f

work d o n e i n e a c h s t a t e .           Finally,      S h e r r o d d was s u b j e c t t o
t h e F a i r Labor S t a n d a r d s A c t o f 1 9 3 8 (FLSA) a n d t h e D e p a r t -

ment had c l e a r a u t h o r i t y t o e n f o r c e t h e f e d e r a l a c t .
         The D e p a r t m e n t o f Labor and I n d u s t r y h a s a s t a t u t o r y
duty      to     enforce         Montana         wage      laws      affecting            Montana
citizens.         S e c t i o n 39-1-102,        MCA.      The Commissioner o f L a b o r
must     investigate             violations          of      Montana         wage        laws    and
i n s t i t u t e a c t i o n s f o r u n p a i d wages.        S e c t i o n 39-3-209,         MCA.

The     commissioner         may        take     assignments          of    wage     claims       in
trust      for     the     claimant         and     maintain          any     proceeding          to
e n f o r c e such claim.          S e c t i o n 39-3-211,        MCA.
          The D e p a r t m e n t may a l s o e n f o r c e t h e p r o v i s i o n s o f t h e
FLSA, r e q u i r i n g minimum wages and o v e r t i m e p a y .                      I n S t a t e v.
Holman A v i a t i o n Co.        ( 1 9 7 8 ) , 1 7 6 Mont. 31, 5 7 5 P.2d                  923, t h i s
C o u r t h e l d t h a t t h e D e p a r t m e n t may i n s t i t u t e a c i v i l a c t i o n
o n b e h a l f o f e m p l o y e e s t o r e c o v e r u n p a i d o v e r t i m e wages d u e
u n d e r t h e FLSA.        W stated:
                              e

                  " T h e M o n t a n a D e p a r t m e n t o f L a b o r was
                  a u t h o r i z e d by b o t h t h e Montana l e g i s l a -
                  t u r e , t h r o u g h s e c t i o n 41-1314.2,            R.C.M.
                  ( 1 9 4 7 ) [ s e c t i o n 39-3-202, 2 1 1 , 2 1 4 ( 2 ) ( 3 ) ,
                  MCA], a n d by t h e U n i t e d S t a t e s C o n g r e s s ,
                  t h r o u g h t h e FLSA a n d 29 CFR 5 1 5 . 8 , t o
                  i n s t i t u t e c i v i l a c t i o n s on behalf of
                  employees          . . .       t o r e c o v e r u n p a i d FLSA
                  wages."           1 7 6 a t 3 6 , 3 7 5 P.2d a t 926.

          I n t h e p r e s e n t case i t i s c l e a r t h a t t h e D e p a r t m e n t
was p e r f o r m i n g i t s s t a t u t o r y d u t y e n f o r c i n g M o n t a n a ' s wage

laws     protecting           Hoehne,        a     Montana         resident.            Such      laws
r e g u l a t e Montana c o r p o r a t i o n s ,         like     Sherrodd,          and     require
them     t o p a y minimum           a n d o v e r t i m e wages.              Also,        t h e FLSA
p r o t e c t s a l l c i t i z e n s and t h e Department a c t e d w i t h i n                    its

a u t h o r i t y e n f o r c i n g it h e r e .        S t a t e v . Holman A v i a t i o n Co.,

supra.         The Montana D e p a r t m e n t o f L a b o r a n d I n d u s t r y a c t e d
within      its j u r i s d i c t i o n    i n a d j u d i c a t i n g H o e h n e ' s claim f o r
o v e r t i m e wages.

          W e a l s o n o t e t h a t R u l e 4 ( b ) ( I ) , M.R.Civ.P.,                gives the

c o u r t s o f Montana j u r i s d i c t i o n o v e r a l l p e r s o n s w i t h i n t h e
S t a t e of     Montana.          T h i s is a          c o d i f i c a t i o n of    traditional

concepts of j u r i s d i c t i o n         t h a t subject a l l persons within a
state's boundaries               to that state's                 jurisdiction.               We   hold
that      under       the     traditional               notions      of     jurisdiction            the
Department          properly         ruled         on     this     claim.             All     parties
resided        i n Montana a n d t h e p r i n c i p a l p l a c e o f                business of
t h e e m p l o y e r was i n Montana.                    Accordingly,           t h e c o u r t s of
Montana h a v e p r o p e r j u r i s d i c t i o n t o h e a r t h i s c a s e .       We also

f i n d t h a t when t h e l e g i s l a t u r e d e l e g a t e d j u d i c i a l power t o
t h e D e p a r t m e n t t o d e c i d e wage c l a i m s i t i n t e n d e d t h a t t h e

Department         b e bound by j u d i c i a l         concepts of           jurisdiction.
          To r e q u i r e a n e m p l o y e e t o p u r s u e h i s wage c l a i m              in
each      state       he     works      would      unduly        burden         all     parties
involved.          The e m p l o y e e would h a v e t o t r a v e l t o e a c h s t a t e
w h e r e h e worked t o p u r s u e h i s c l a i m .          T h i s would l e a d t o a n
o p p r e s s i v e b u r d e n on b o t h t h e e m p l o y e e a n d t h e e m p l o y e r i n

many c a s e s . For e x a m p l e , w h e r e a t r u c k e r h a u l s c a r g o t h r o u g h
s e v e r a l s t a t e s t o reach h i s d e s t i n a t i o n ,      i t would        require

b o t h t h e e m p l o y e r and t h e e m p l o y e e t o g o t o e a c h s t a t e t o
have a p o r t i o n of a claim a d j u d i c a t e d .            Each p a r t y may a l s o
need     witnesses,         which m o s t       likely       reside      in the parties'
s t a t e of residence.              Furthermore,           a s t h e Department p o i n t s
out,     t h i s would f r a c t i o n a l i z e t h e e m p l o y e e ' s c l a i m t o s u c h
a n e x t e n t a s t o make p u r s u i t o f i t n o t w o r t h w h i l e .

          Second,      S h e r r o d d a r g u e s t h a t Hoehne i s e s t o p p e d f r o m
claiming overtime compensation because he f a i l e d t o r e p o r t

a c c u m u l a t e d o v e r t i m e h o u r s and d i d n o t i n f o r m S h e r r o d d t h a t
h e e x p e c t e d o v e r t i m e pay.
         Hoehne c o n t e n d s       that     overtime pay            is   a    statutorily
m a n d a t e d p u b l i c r i g h t . T h e r e f o r e , i t c a n n o t b e w a i v e d and a n
employee c a n n o t be e s t o p p e d from c l a i m i n g it.

         This      Court       has    held     that     a     person     may     either,         by
implication          or     agreement,        waive      the     advantage         of      a    law
intended s o l e l y for h i s benefit.                 E a r l C l a c k Co. v . S t a u n t o n
( 1 9 3 7 ) , 1 0 5 Mont.     3 7 5 , 72 P.2d       1 0 2 2 ; Anaconda Copper M i n i n g
Co. v . R a v a l l i C o u n t y ( 1 9 1 9 ) , 5 6 Mont. 5 3 0 , 1 8 6 P. 3 3 2 ; S h e a
v. North-Butte            M i n i n g Co.   ( 1 9 1 9 ) , 55 Mont.      5 2 2 , 1 7 9 P.       499.
Conversely, laws which are intended to protect the public in
general cannot be waived privately, section 1-3-204, MCA, by
either implication or agreement.      Shea, supra.
         In Kopischke v. First Continental Corp. (1980),
Mont.        ,   610 P.2d 668, 37 St.Rep. 437, we determined that
public policy requires a used car dealer to inspect the cars
he sells and to make sure they are in safe, working condi-
tion.     This duty, as an expression of public policy, cannot
be waived by the use of an "as is" clause in the sales
contract.
         An employee's right to receive overtime pay is estab-
lished in Montana state law as well as federal law.         These
laws are expressions of public policy created to protect
workers, and restraining those from withholding overtime pay
is vindication of a public         right rather than a private
right.      Withholding wages due, such as overtime pay, is
considered a continuing public offense.        Viirtz v. Malthor,
Inc.    (9th Cir. 1960), 391 F.2d     1, cited in State ex rel.
Neiss v. District Court (1973), 162 Mont. 324, 511 P.2d 979.
Since overtime premiums are for the protection and benefit
of the general public, private waiver is contrary to public
policy.     Neiss, 162 Mont.     at 328, 511 P.2d    981; section
1-3-204, MCA.
         In Brooklyn Savings Bank v. O'Neil     (1945), 324 U.S.
697, 65 S.Ct. 895, 89 L.Ed.      1296, the United States Supreme
Court interpreted the federal counterpart to the Montana
minimum wage and overtime requirements, section 16(b) of the
FLSA.     The Supreme Court held that the intent of the legis-
lature in passing the FLSA was to prevent an employee's
contractual waiver of his right to minimum wages and
overtime and thereby prevent waiver of liquidated damages
for withholding such payments.         This, the Court held, would
nullify the purposes of the Act.
      Essentially, this Court came to a similar conclusion
in Neiss,     supra.    In construing Montana's minimum wage
requirements we held that:
              ". .  .since we are dealing with a public
              right, public policy demands the minimum
              wage shall be paid. Minimum wage provi-
              sions exist for the benefit of the whole
              public and a claimant of his own accord
              - not bargain away his statutory mini-
              may-
              mum wage.    It is elementary that a law
              established for a public reason cannot be
              compromised by private agreement. Section
              1-3-209, MCA."    (Emphasis added. )  162
              Mont. at 328, 511 P.2d at 981.
      We believe that allowing a noncontractual or implied
waiver of minimum wages or overtime payments would            also
nullify the purposes of both statutes and would be contrary
to public policy.      Consequently, we hold that one's failure
to   assert    such    rights   does    not   constitute   waiver.
Nonasser tion could be the result of mere ignorance, which
should not legitimize what we consider a continuing public
offense or prevent vindication of an important public right.
Hoehne is not estopped from claiming overtime pay owed to
him from his employment with Sherrodd, Inc.
      Af f irmed.




                                  3A-44). pd,4
                                   Chief Justice
W concur:
 e