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Dayhoff v. Temso Helicopters (3/26/93), 848 P 2d 1367
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
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THE SUPREME COURT OF THE STATE OF ALASKA
GUY W. DAYHOFF, )
) Supreme Court File No. S-4477
Appellant, ) Superior Court File No.
) 1KE-86-29 Civil
TEMSCO HELICOPTERS, INC., ) O P I N I O N
Appellee. ) [No. 3940 - March 26, 1993]
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Thomas E. Schulz, Judge.
Appearances: Kevin G. Clarkson and
Carol L. Giles, Perkins Coie, Anchorage, for
Appellant. H. Clay Keene, Keene & Currall,
Ketchikan, Alaska, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
This case involves claims made by Guy W. Dayhoff
against Temsco Helicopter Pilots, Inc. (Temsco), for
unpaid prevailing wages and overtime wages. Dayhoff
appeals from the Summary Judgment dismissing his
claims. We affirm in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is the second time this case has been before this
court. See Dayhoff v. Temsco Helicopters, Inc., 772
P.2d 1085 (Alaska 1989). Dayhoff was employed by
Temsco as a helicopter pilot at various times during
1982 and 1983. Id. at 1086. After leaving Temsco,
Dayhoff initiated proceedings with the Alaska
Department of Labor (DOL) claiming that he had been
undercompensated. DOL investigated but did not pursue
an enforcement action. Id. Thereafter, Dayhoff filed
a complaint in superior court to recover wages. In
April 1987 Superior Court Judge Thomas M. Jahnke ruled
that Dayhoff's claims were barred by the statute of
limitations. This court reversed and remanded the case
for further proceedings. Id. at 1088. Superior Court
Judge Thomas E. Schulz then granted Temsco's motion for
summary judgment, again dismissing Dayhoff's claims.
Dayhoff's claims are based on two statutes, the Alaska
Wage and Hour Act (AWHA), AS 23.10.050-.150, and the
Alaska Little Davis-Bacon Act (ALDBA), AS 36.05. AWHA
establishes a minimum wage, maximum workweek and
overtime compensation. ALDBA assures that employees
engaged in public construction receive the prevailing
wage. The superior court determined that AWHA cannot
be a basis of recovery because 1) AWHA is preempted by
the Federal Aviation Act (FAA), 2) AWHA violates the
Commerce Clause of the United States Constitution, and
3) Dayhoff is an exempt professional under AWHA. The
court also held that ALDBA cannot be a basis of
recovery because 1) there is no private right of action
under ALDBA, and 2) Dayhoff is not protected by ALDBA
because he is not a laborer or mechanic.
II. STANDARD OF REVIEW
The standard of review applicable to summary judgments
is de novo. Farmer v. State, 788 P.2d 43, 46 n.8
(Alaska 1990). Specifically, "summary judgment is
affirmed if the evidence in the record fails to
disclose a genuine issue of material fact and the
moving party is entitled to judgment as a matter of
law." Dayhoff v. Temsco Helicopters, Inc., 772 P.2d
1085, 1086 (Alaska 1989). "All reasonable inferences
of fact are drawn in favor of the non-moving party and
against the moving party." Id. "On questions of law,
this court is not bound by the lower court's decision .
. . . Our duty is to adopt the rule of law that is
most persuasive in light of precedent, reason, and
policy." Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
A. DAYHOFF HAS A CAUSE OF ACTION UNDER AWHA
1. AWHA is not preempted by FAA.
To determine whether a federal statute preempts state
law the sole task of the court is to ascertain the
intent of Congress. California Fed. Savings & Loan
Ass'n v. Guerra, 479 U.S. 272, 280 (1987); Webster v.
Bechtel, 632 P.2d 890, 896-97 (Alaska 1980). Federal
law can preempt state law in three ways: explicitly, if
Congress declares that state law is preempted;
implicitly, if Congress enacts comprehensive laws that
leave no room for additional state regulation; or if
state law actually conflicts with Federal law. Guerra,
479 U.S. at 280-81.
Employment laws, including wage laws, are a local
concern traditionally within states' police powers.
Webster, 621 P.2d at 898. Accordingly, there is an
assumption that the historic powers of states are not
superseded unless there is a clear and manifest purpose
of Congress to preempt the state law. Pacific Merchant
Shipping Ass'n v. Aubry, 918 F.2d 1409, 1416 (9th Cir.
1990), cert. denied, 112 S. Ct. 2956 (1992). "The
principle to be derived from Supreme Court decisions is
that federal regulations should not preempt state
regulations in absence of persuasive reasons."
Webster, 621 P.2d at 898 (quoting Ray v. Atlantic
Richfield Co., 435 U.S. 151, 157-58 (1978)).
Temsco does not claim FAA expressly preempts state wage
laws. The superior court concluded that FAA implicitly
preempts state law as it fully occupies the field of
aviation, leaving no room for states to regulate
activities that impact aviation. The court also
determined "the overtime incentive of the AWHA is
directly in conflict with the pilot duty and flight
time provisions of applicable federal regulations."
Dayhoff asserts that FAA and Federal Aviation
Regulations (FAR) regulate most areas of aviation but
do not address compensation. Since compensation is not
mentioned by FAA, it is not comprehensively regulated.
FAA does regulate hours of pilots, 14 CFR 135.261-
.271 (1992), but flight time limitations are designed
to promote flight safety. They are not intended to be
Temsco argues the federal government has
comprehensively occupied the entire field of aviation
including wages and compensation leaving no room for
state regulation. Temsco characterizes AWHA as a
maximum hour law, since it declares that an employer
"may not employ an employee for a workweek longer than
40 hours or for more than eight hours a day." AS
23.10.060(a). Temsco asserts that this statute is
preempted if applied to pilots who are subject to FAA
maximum hour regulations which provide both mandatory
rest periods and maximum flight hours. 14 CFR
We find that the superior court erred in concluding
that FAA preempted AWHA. AWHA does not regulate
maximum hours, rather it provides for mandatory
overtime compensation. Webster, 621 P.2d at 900. FAA
exclusively occupies most areas of aviation, but does
not regulate compensation of pilots. As there is no
clear and manifest purpose to comprehensively regulate
the field, FAA does not preempt state wage law.
The superior court was also mistaken in concluding that
AWHA directly conflicts with FAA. There is an actual
conflict "`where compliance with both federal and state
regulations is a physical impossibility . . .' or where
the state `law stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress.'" Ray v. Atlantic Richfield
Co., 435 U.S. 151, 158 (1978) (quoting Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43
(1963) and Hines v. Davidowitz, 312 U.S. 52, 67
(1941)). Neither party argues that it is a practical
impossibility to comply with both laws. Dayhoff argues
the mandatory overtime required by AWHA is not an
obstacle, but actually complements FAA safety
regulations by giving employers incentives to limit
Temsco argues that AWHA conflicts with FAA because it
is an obstacle to accomplishing federal objectives.
Federal law mandates maximum flight hours and mandatory
rest periods. 14 CFR 127.191 (1992). Temsco claims
that AWHA creates incentives to keep shorter hours.
This puts pressure on employers to keep rest time to
the absolute minimum and fly whenever possible, even if
safety is compromised. The financial pressures created
by AWHA directly conflict with the safety objectives of
We conclude that mandatory overtime compensation does
not directly conflict with FAA safety regulations. An
employer's economic considerations may often create
conflicting pressures with safety regulations.
Compensating employees for their overtime may make it
more expensive to follow FAA regulations. However,
this does not actually conflict with the regulations.
Therefore, FAA safety regulations do not preempt AWHA
mandatory overtime compensation provisions.
2. AWHA does not violate the Commerce Clause
of the United States Constitution.
The Commerce Clause states that "[c]ongress shall have
power . . . to regulate commerce with foreign nations,
and among the several states . . . ." U.S. Const. art.
I, 8. Regulations which affect interstate commerce
are judged by two standards. Regulations which
discriminate against out-of-state commerce are judged
under a strict scrutiny standard.1 When the regulation
does not so discriminate, the court balances the
benefit of the state regulation against the burden on
interstate commerce. Minnesota v. Clover Leaf Creamery
Co., 449 U.S. 456, 472 (1981). The state regulation is
valid unless "the incidental burden imposed is clearly
excessive in relation to the putative local benefits."
Pike v. Bruce Church Inc., 397 U.S. 137, 142 (1970).
AS AWHA applies equally and does not discriminate
against out-of-state employers, we apply the balancing
Dayhoff argues the superior court erred by concluding
AWHA imposes an undue burden on interstate commerce.
The only burden the court identified was that Temsco
would be required to maintain separate records for
Alaska employees. On the other hand, the purpose of
AWHA is to "establish minimum wage and overtime
compensation standards for workers at levels consistent
with their health, efficiency, and general well-being .
. . ." AS 23.10.050. This is a traditional area of
state police power and the state has a strong interest
in the area. Webster, 621 P.2d at 898. Dayhoff claims
the burden of keeping separate records for employees
who work within the state is not excessive when
balanced with the strong state interest of assuring
that its citizens receive adequate compensation.
Temsco contends that applying AWHA to helicopter pilots
of an interstate company would create statewide systems
as opposed to a national system of air commerce.
Temsco relies upon Southern Pacific Co. v. Arizona, 325
U.S. 761 (1945), which found a state law limiting the
maximum number of cars on trains invalid. Temsco
argues that differing record keeping requirements would
be as disruptive to air commerce as differing train
length requirements was to rail commerce.
Temsco's reliance on Southern Pacific Co. is misplaced.
The Supreme Court in Southern Pacific Co. found the
state's interest in limiting train size unimportant.
It relied on the trial court's finding that shorter
trains were no safer than the longer trains prohibited
by the Arizona statute. Id. at 779. The Court thus
concluded that the statute, "admittedly obstructive to
interstate train operation, and having a seriously
adverse effect on transportation efficiency, passes
beyond what is plainly essential for safety since it
does not appear that it will lessen rather than
increase the danger of accident." Id. at 781-82.
In the present case the State of Alaska has a strong
interest in protecting the health, efficiency and
general well-being of its work force. The incidental
burden on interstate commerce of keeping records is not
excessive and does not outweigh the state's valid
interest. AWHA does not violate the Commerce Clause.
3. Dayhoff is not exempt from AWHA
as a professional.
AWHA exempts "an individual employed in a bona fide
professional capacity . . . ." AS 23.10.055(9). The
test for exemption as a professional employee is
derived from 8 AAC 15.910(a)(11). The four part test
requires a finding that 1) the employee's primary duty
is to perform work requiring knowledge of advanced
type, 2) the work requires consistent exercise of
discretion, 3) the work must be predominantly
intellectual and varied, and 4) the work must be
compensated on a fee basis.
AWHA is based upon the Fair Labor Standards Act (FLSA)
and federal interpretations of FLSA are relevant in
interpreting AWHA. McGinnis v. Stevens, 543 P.2d 1221,
1238-39 (Alaska 1975), appeal after remand, 570 P.2d
735 (Alaska 1977). Under federal law, the employer has
the burden to prove the exemption is applicable.
Reeves v. International Tel. & Tel. Corp., 357 F. Supp.
295, 298 (W.D. La. 1973), aff'd, 616 F.2d 1342 (5th
Cir. 1980), cert. denied, 449 U.S. 1077 (1981).
"Exemptions are to be narrowly construed against the
employer." Id. at 297. "If there is a reasonable
doubt as to whether an employee meets the criteria for
exemption, the employee should be ruled non-exempt."
Adam v. United States, 26 Cl. Ct. 782, 1992 WL 166411,
3 (Cl. Ct. July 20, 1992). All four elements must be
met before an employee is found exempt. Id.
The parties agree that Dayhoff was a salaried employee,
compensated on a fee basis. The parties dispute the
level of education required of Dayhoff, what Dayhoff's
primary duty was, how to characterize the discretion
exercised by Dayhoff, and if the character of work was
intellectual or physical.
Dayhoff claims the knowledge required to become a
commercial pilot is not the type of advanced learning
needed to qualify as a professional. Dayhoff also
claims his primary duty was not professional because
approximately 62% of his time was spent performing non-
aviation duties. Even while flying, Dayhoff had no
discretion as his actions were controlled by superiors.
The only discretion and judgment exercised was in the
physical operation of the aircraft.
Temsco argues that Dayhoff's primary duty was to be a
pilot. He was hired as a pilot and his time was spent
flying or waiting to fly. Temsco contends that being a
commercial helicopter pilot requires knowledge of an
advanced type. Further, Temsco argues that a
commercial helicopter pilot is required to consistently
exercise discretion and judgment.
The applicability of exemptions are questions of fact
to be determined considering the individual's duties
and other qualifications, and not upon how the employer
classified the employee. Reeves, 357 F. Supp. at 302-
03. A trial court must make a finding of fact in
determining an employee's status. Dalheim v. KDFW-TV,
918 F.2d 1220, 1226, 1228 (5th Cir. 1990). While both
parties moved for summary judgment on this issue, we
first review the grant of summary judgment in favor of
Temsco. We must view the facts in a light most
favorable to Dayhoff. Dayhoff was primarily self-
educated. He claims that for approximately 62% of his
time he performed non-aviation duties. Dayhoff had no
significant authority to control decisions regarding
flight assignments or routes. The only discretion
Dayhoff exercised was in the physical operation of his
aircraft. Viewing the facts in the light most
favorable to Dayhoff, Temsco does not meet the burden
of showing that the exemption is applicable. Dayhoff
can, at most, be classified as a highly trained
technician and not as a professional.
Next we review the denial of Dayhoff's motion for
summary judgment. For this purpose we view the facts
in the light most favorable to Temsco. It is
undisputed that Dayhoff obtained his commercial
helicopter licence through self study and obtained his
flight instructor certificate after only ten hours of
formal instruction. This is not the type of advanced
study required to classify an employee as a
professional. Further, the discretion exercised by
Dayhoff in flying a helicopter is not the type of
discretion which characterizes a person as a
professional for purposes of this exemption.
On the basis of the foregoing we conclude that the FAA
does not preempt the AWHA, that the AWHA is not
violative of the commerce clause, and that Dayhoff is
not a professional for purposes of the AWHA exemption.
B. DAYHOFF DOES NOT HAVE A CAUSE OF ACTION UNDER
THE ALASKA LITTLE DAVIS-BACON ACT (ALDBA).
1. ALDBA provides a private cause
ALDBA was modeled after the Davis-Bacon Act, 40 U.S.C.
276 (1988). ALDBA stipulates that a contractor or
subcontractor on a public construction contract must
pay its employees the prevailing wage rate for similar
work performed in a similar region. AS 36.05.010. The
superior court concluded that a predetermination of
ALDBA applicability is necessary before there can be a
private right of action against the contractor. The
court relied upon Universities Research Ass'n. v.
Coutu, 450 U.S. 754 (1981), which held no private right
of action exists where there has been an administrative
determination that Davis-Bacon does not apply.
In Coutu, Universities Research Association made a
contract with the Atomic Energy Commission (AEC) to
provide scientific and management services in
connection with the construction of the Fermi National
Accelerator Laboratory. The contract expressly stated
that it was not contemplated that Universities Research
Association would use its own employees to perform work
that the AEC determined to be subject to the Act.
Coutu, 450 U.S. at 762. The Court concluded Davis-
Bacon did not confer a private right of action for back
wages under a contract that administratively has been
determined not to call for Davis-Bacon work. Id. at
The superior court was persuaded by the rationale of
Coutu, which emphasized the importance of giving
certainty in construction bids. The superior court
extended the rationale of Coutu by determining that no
private cause of action would exist, not only when a
predetermination of non-applicability has been made,
but also when there has been no determination at all.
Dayhoff argues that even if the court accepts the
holding in Coutu, there is good reason not to extend
the rationale to this case. Dayhoff asserts ALDBA's
fundamental purpose is to benefit employees by assuring
that those engaged in public construction receive at
least the prevailing wage. City and Borough of Sitka
v. Construction and General Laborers Local 942, 644
P.2d 227, 232 (Alaska 1982). Coutu limited employee
rights by requiring an employee to appeal the
administrative determination that Davis-Bacon did not
apply. By extending the ruling to cases where no
determination has been made, the employee is left
without a remedy. In this case, Dayhoff argues, he
could not have made an administrative appeal because no
administrative ruling had been made.
Dayhoff points out that in this case there is no
question the primary contract was subject to ALDBA. He
argues that the intent of the statute, which is to
protect employees on public construction projects,
would be frustrated by denying his claim.
Temsco argues that while this court has not ruled on
the availability of a private right of action under
ALDBA, federal courts have construed the Davis-Bacon
act as not providing a private cause of action. The
United States Court of Appeals for the Fifth Circuit
has decided that "neither the language, the history,
nor the structure of the statute supports the
implication of a private right of action . . . ."
United States ex rel. Glynn v. Capeletti Brothers,
Inc., 621 F.2d 1309, 1317 (5th Cir. 1980).
Temsco argues that the trend and the rationale of the
federal courts, limiting employees to administrative
remedies, should be adopted.2 Temsco concludes that
the administrative remedy provided by the Act is
sufficient to protect employee rights.
In City and Borough of Sitka, 644 P.2d at 234 n.14,
this court expressly left open the question whether a
private right of action to recover back wages is
authorized under ALDBA. We noted the United States
Supreme Court's decision in Coutu, but did not decide
what impact, if any, it should have on ALDBA. Id.
This case is fundamentally different from Coutu. In
Coutu the government contract specifically was for non
Davis-Bacon work. In the present case there is no
question the prime contract was subject to ALDBA. DOL
investigated Dayhoff's claim, made no formal
determination, and advised Dayhoff to pursue a civil
action. To determine if the legislature intended to
create a private right of action, the court should look
at the language and focus of the statute, its
legislative history, and its purpose. Coutu, 450 U.S.
at 770. The purpose of ALDBA is to protect employees
engaged in public construction from substandard
earnings. City and Borough of Sitka, 644 P.2d at 232
n.11. When the prime contract is subject to ALDBA, DOL
investigates, and DOL suggests that the employee file a
civil suit; the only way for the court to follow the
intent of the legislature is to allow a private cause
2. Dayhoff is not a member of the class
of workers protected by ALDBA.
ALDBA protects mechanics, laborers or field surveyors
by requiring contractors to pay the prevailing wage.
AS 36.05.070. In its pamphlet entitled "Laborers' and
Mechanics' Minimum Rates of Pay," DOL includes
helicopter pilots/transporters as power equipment
operators. The superior court decided helicopter
pilots are not within the normal meaning of Laborers or
Mechanics. The superior court determined that the DOL
pamphlet, providing minimum rates for helicopter
pilots, is inconsistent with the statute. We agree.
ALDBA protects mechanics, laborers or field surveyors.
The legislature has described an employee fitting these
job descriptions as "a person who engages in work that
is basically physical or unskilled in nature; or who
engages in work, requiring the use of tools or machines
that basically consists of the shaping and working of
materials into some type of structure, machine, or
other object; . . . ." AS 36.95.010(2). Helicopter
pilots do not fit the definition of laborers or
mechanics and are thus not part of the class protected
The dismissal of Dayhoff's AWHA claim is REVERSED.
The dismissal of Dayhoff's ALDBA claim is AFFIRMED.
AFFIRMED in part and REVERSED in part.
1. If a state law is in reality simple economic
protectionism, a virtual per se rule of invalidity
applies. Minnesota v. Clover Leaf Creamery Co., 449
U.S. 456, 471 (1981). See also, Philadelphia v. New
Jersey, 437 U.S. 617 (1978) (invalidating statute
prohibiting the importation of solid waste because of
discriminatory effect); Hunt v. Washington Apple
Advertising Comm'n, 432 U.S. 333 (1977) (invalidating
additional costs imposed on Washington, but not North
Carolina apple shippers because of discriminatory
2. While there may be a trend, federal circuits are split.
The Seventh Circuit concluded "that implying a private
right of action in Davis-Bacon Act is necessary to
effectuate the intention of Congress . . . ." McDaniel
v. University of Chicago, 548 F.2d 689, 695 (7th Cir.
1977). And recently in Norling v. Valley Contracting
and Pre Mix, 773 F. Supp. 186, 189 (D.N.D. 1991), the
court held "a private cause of action exists under the
Davis-Bacon Act when the . . . express protections
provided by the Act are unavailable."