LJ Beck Roofing and Guttering v. Kansas Dept. of Labor

No. 129,234 IN THE COURT OF APPEALS OF THE STATE OF KANSAS LJ BECK ROOFING and GUTTERING, INC., and LAWRENCE J. BECK, Individually, Appellants, v. SECRETARY OF LABOR and KANSAS DEPARTMENT OF LABOR, et al., Appellees. SYLLABUS BY THE COURT 1. The Kansas Wage and Payment Act is a broad legislative scheme designed to ensure that employees are paid all wages owed when due but does not contain a substantive right to overtime pay. As part of the enforcement provisions, the Act permits the assessment of monetary penalties for an employer's willful failure to pay wages owed, interest on unpaid wages, and provides that a person who has charge of the affairs of the employer may be held personally liable. 2. The Kansas Minimum Wage and Maximum Hours Law is the state law counterpart to the federal Fair Labor Standards Act and, among other things, sets forth the maximum number of hours an employee may work without receiving overtime compensation under state law. When the Fair Labor Standards Act applies to an employee's claim for unpaid overtime, the Kansas Minimum Wage and Maximum Hours Law does not apply. 1 3. The Fair Labor Standards Act contains robust enforcement mechanisms and penalties for covered employees related to unpaid overtime claims. Although the Kansas Wage and Payment Act broadly applies to wages owed under Kansas law, it does not provide employees with additional or different substantive rights for unpaid overtime than the Fair Labor Standards Act. Therefore, the Kansas Wage and Payment Act cannot be used as an enforcement mechanism for claims of unpaid overtime in violation of the Fair Labor Standards Act. 4. An employer can be held liable under the Kansas Wage and Payment Act for claims of unpaid overtime in violation of the Kansas Minimum Wage and Maximum Hours Law. Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Submitted without oral argument. Opinion filed September 25, 2026. Affirmed in part, reversed in part, and remanded with directions. Trinidad Galdean, of Galdean LLC, of Wichita, for appellants. Blair P. Capps, special assistant attorney general, Office of Legal Services, Kansas Department of Labor, for appellee Kansas Department of Labor. Before MALONE, P.J., BRUNS and HURST, JJ. HURST, J.: Kansas employees are protected from suffering unpaid work, including overtime, by several state and federal laws. Here, the Kansas Department of Labor (Agency) determined that eight roofers were owed overtime pay and associated penalties and interest from their employer. The employer and one of its administrators, who the Agency found personally liable, sought judicial review of that decision before the district court, which affirmed the Agency's conclusions. The employer and administrator now 2 seek this court's review, alleging that the district court (1) failed to address their claims on review; (2) erroneously interpreted and applied the law; (3) upheld the Agency's factual findings that lacked sufficient evidentiary support; and (4) acted unreasonably in upholding the Agency's conclusions. The appellants' claims require this court to address all aspects of the Agency's decision. This court reviews the Agency's decision as if it were directly appealed to it and notes the interplay of federal and state law to the workers' claims for overtime pay. As such, this court finds that the Agency erred in its application of state law under the Kansas Wage and Payment Act (KWPA) to enforce liability for overtime pay found due under the federal Fair Labor Standards Act (FLSA). Nevertheless, the Agency properly interpreted and applied the KWPA to claims properly within that law's purview. Additionally, there was sufficient evidence to support the Agency's conclusion that under the KWPA, Lawrence J. Beck had charge of the affairs of the employer LJ Beck Roofing and Guttering, Inc. (LJB Roofing). Finally, this court finds no error with the Agency's procedure of combining the workers' claims into a single hearing. As explained herein, the Agency's decision is remanded for reconsideration. On remand, if the Agency proceeds on the current record, it must apply the Kansas Minimum Wage and Maximum Hours Law (KMWMHL) to determine liability, if any, for unpaid overtime pay. If the Agency determines the claimants are owed overtime pay under the KMWMHL, it may then apply the KWPA. Appellants are not otherwise entitled to relief on any other issues raised on appeal. This matter is affirmed in part, reversed in part, and remanded to the district court for remand to the Agency in accordance with this opinion. FACTUAL AND PROCEDURAL BACKGROUND Eight roofers filed unpaid wage claims with the Kansas Department of Labor in April 2022, alleging they were not paid for overtime worked. Six of those claimants 3 reported their title as "crew member," one listed their title as "crew leader," and one did not list a job title. The record shows that at least one of the claimants contacted the United States Department of Labor regarding allegations of unpaid overtime and, according to the worker, was told to contact the Kansas Department of Labor "because my employer didn't meet certain criteria[]" for a claim pursued by the United States Department of Labor. The eight claimants were employed by LJB Roofing, which was incorporated in 1996 with Lawrence J. Beck identified as the president, secretary, and treasurer. Beck testified that LJB Roofing paid for insurance and claimants' compensation expenses. On "Employer's Answer to Claim for Wages," LJB Roofing listed "Lawrence J. Beck" as "Pres./Sec." On the same form, the box marked "No" is checked regarding whether the employer "claim[s] to have the legal right to withhold the wages claimed." The Agency determined the appropriate period for claims under the statute of limitations was April 19, 2019, through April 19, 2022. LJB Roofing submitted payroll records beginning in February 2020, despite the Agency requesting earlier records. In February 2023, the Agency notified LJB Roofing and Beck that they owed approximately $49,000 in overtime pay from February 2020 through June 2021 and approximately $40,000 for the earlier period when LJB Roofing failed to provide records. The Agency also identified the specific amounts it believed were due to each claimant. The letter said the estimates were "based on the records provided," that LJB Roofing had the "responsibility to keep accurate time and payroll records," and provided LJB Roofing an opportunity to dispute the findings. The Agency letter also recommended LJB Roofing settle the claims: 4  "It would be our recommendation that you try to settle these cases along with the many employees that did not file claims. Further I would hope that since you have been made aware of the Kansas overtime requirements that you are now keeping time and payroll records and paying overtime as earned." In April 2023, LJB Roofing offered claimants a $20,000 settlement—less than a quarter of the amount the Agency determined was owed—to be divided among the claimants and to be made in four monthly payments. One claimant signed the settlement agreement, but there is no evidence LJB Roofing executed the settlement agreement or paid that claimant. Administrative Hearing With no settlement, the parties proceeded to a consolidated hearing before the Office of Administrative Hearings. At the hearing, the administrative law judge (ALJ) admitted the Agency's exhibits over objections and identified four issues to be addressed at the hearing: (1) whether the employer was liable for paying the unpaid overtime; (2) whether the employer was liable for paying interest; (3) whether the employer was liable for a penalty; and (4) whether any agent or other person was individually liable for any of the payments. Beck testified that he calculated the claimants' pay by multiplying the hours worked with their rate of pay and deducting 30 minutes for lunch. The payroll spreadsheets completed by Beck for each claimant were introduced as evidence. Beck testified that he paid the claimants their regular wage for all time worked, even if that time included overtime hours, because he did not know that an overtime rate was required. He did not deny that claimants worked overtime as part of their employment. 5  The claimants also testified at the hearing regarding their hours worked, pay, and attempts to recover money they believed was owed. Counsel for LJB Roofing and Beck argued that, as supervisors, two of the claimants would not be entitled to overtime pay or interest. Counsel also argued that LJB Roofing should not be subject to a penalty because no claimant complained about unpaid overtime and Beck was unaware that overtime pay was required. Counsel maintained that Beck should not be individually liable for any of the unpaid wages, interest, or penalties. The Administrative Law Judge's Findings The same ALJ issued all eight initial orders in January 2024, where it noted that "[o]vertime requirements are addressed in both Federal law and Kansas law." The ALJ made specific factual findings regarding LJB Roofing's business activities and concluded that "LJB Roofing is subject to the FLSA and required to pay overtime wages to employees for any work performed in excess of 40 hours in a work week." Then, applying the KWPA to enforce the FLSA overtime violations, the ALJ concluded that LJB Roofing and Beck were jointly and severally liable to each claimant for unpaid overtime pay for hours worked more than 40 in a workweek, penalties, and interest. This included a finding that under the KWPA, Beck was personally liable as a controlling agent of LJB Roofing. The ALJ also concluded that the claimants identified as supervisors were not exempt from overtime pay under the executive exemption of the FLSA. LJB Roofing and Beck sought review of the ALJ's initial orders from the Kansas Secretary of Labor. The Secretary's designee issued a final order denying review in each case, and LJB Roofing and Beck sought judicial review under the Kansas Judicial Review Act (KJRA). 6 Judicial Review from the District Court In their joint petition for judicial review, LJB Roofing and Beck raised the following issues: • It was unreasonable, irrelevant, and prejudicial for the ALJ to consider the evidence presented at the hearing in total when deciding issues related to individual claimants. • Several of the ALJ's findings were not supported by substantial evidence. • There is no evidence that Beck is the owner of LJB Roofing. • The ALJ misapplied K.S.A. 44-323 by erroneously concluding that an award of interest was mandatory, rather than discretionary, and by incorrectly calculating the award amount. • The ALJ's award for interest was not supported by substantial evidence because it was based solely on the existence of a violation of overtime law. • There was no evidence suggesting LJB Roofing's failure to pay overtime was willful or intentional, so no penalties should have been assessed. • The determination that Beck should be personally liable was not supported by substantial evidence and was otherwise unreasonable. • The ALJ's initial orders erroneously determined that the supervisors were owed overtime pay. The district court consolidated the eight cases. In its journal entry filed in March 2025, the district court summarized the issues as: "1. Whether respondent's determinations were supported by sufficient evidence? 2. Whether respondent's determinations were unreasonable, arbitrary, or capricious?" The district court considered the two summarized issues and denied LJB Roofing and Beck any relief, concluding: 7  "Considering petitioner and respondent's burdens, a reasonable person might accept as sufficient respondent's determinations that workers paid hourly were subject to the protections and rights under KWPA and [Kansas Minimum Wage and Maximum Hours Law], as well as its determinations that penalties of 100% of the employees overdue wages were appropriate due to petitioner failing to rectify the error once he was made aware of the oversight. .... "This court has already held that respondent's determinations and findings of fact were supported by substantial evidence. For this reason, the court also finds they are not 'unreasonable, arbitrary, or capricious.'" LJB Roofing and Beck now appeal. DISCUSSION Appellants challenge the district court's decision, alleging that the court failed to consider all issues raised and that it erred in several manners when it upheld the Agency's determination. Appellants contend that the district court erred in its interpretation and application of the law related to the supervisors' entitlement to overtime pay; finding the appellants liable for overtime pay, interest, and penalties; because its decision was not supported by substantial evidence in the record; and by considering evidence from all claimants from a single Agency hearing. Essentially, appellants argue that the Agency erred by misapplying the law and making factual findings that were not supported by the record, and thus the district court erred by upholding the Agency's erroneous findings of fact and conclusions of law. Appeal of Administrative Agency Decisions Awards from Kansas administrative agencies—such as the Kansas Department of Labor here—are subject to judicial review by the district court and the appellate court 8 under the KJRA. K.S.A. 77-603; K.S.A. 77-609; K.S.A. 77-623. This court exercises the same statutorily limited judicial review of the Agency's action as did the district court and reviews the appeal as though it were a direct appeal. Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 628, 154 P.3d 1080 (2007). This means that appellate relief from the Agency's decision can only be granted for the grounds enumerated under the KJRA. See K.S.A. 77-621(c) (outlining grounds for judicial relief); 283 Kan. at 628 (discussing review under the KJRA). It also means that because the district court upheld the Agency's decision, this court's review will directly address the appellants' claims of error related to the Agency's decision rather than the district court's review. Appellants seek review of the Agency's decision based on errors of law; the lack of evidence to support factual findings; and an allegation that the Agency's decision was unreasonable, capricious, or arbitrary, based on the following KJRA statutory subsections: "(4) the agency has erroneously interpreted or applied the law; .... "(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or "(8) the agency action is otherwise unreasonable, arbitrary or capricious." K.S.A. 77-621(c). This court reviews these alleged errors under the KJRA under different standards. When reviewing the Agency's factual findings under K.S.A. 77-621(c)(7), this court must "assess the evidence both supporting and contradicting the agency's findings, examine the agency's credibility determinations, and review the agency's explanation as 9 to why the evidence sustains its findings." Hanson v. Kansas Corporation Comm'n, 313 Kan. 752, 763, 490 P.3d 1216 (2021). When determining whether substantial evidence supports an Agency's factual findings, the KJRA requires that the evidence "is substantial when viewed in light of the record as a whole." K.S.A. 77-621(c)(7); see also K.S.A. 77- 621(d) (defining the meaning of "'in light of the record as a whole'"). Substantial evidence is that "'which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.'" Board of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n, 306 Kan. 298, 326, 393 P.3d 601 (2017). In determining whether the Agency erroneously interpreted or applied the law under K.S.A. 77-621(c)(4), this court reviews the Agency's interpretation and application of the law de novo, without deference to the Agency's determinations. In re River Rock Energy Company, 313 Kan. 936, 944, 492 P.3d 1157 (2021). Finally, in reviewing whether the Agency's decision is unreasonable, arbitrary, or capricious under K.S.A. 77- 621(c)(8), this court "'determines the reasonableness of the agency's exercise of discretion in reaching its decision based upon the agency's factual findings and the applicable law.'" Via Christi Hospitals Wichita v. Kan-Pak, 310 Kan. 883, 891, 451 P.3d 459 (2019). Appellants carry the burden of showing the Agency action is subject to reversal under each of these standards. K.S.A. 77-621(a)(1). I. THE DISTRICT COURT FAILED TO CONSIDER APPELLANTS' ISSUES Before addressing the substantive claims on appeal, this court must address the appellants' claim that the district court failed to consider all the issues raised in their petition for judicial review. The district court's order is succinct and does not address the issues raised one by one—instead the order addresses two overarching issues, which the district court delineated as whether the Agency's decisions were based on substantial 10 evidence and whether the Agency's decisions were unreasonable, arbitrary, or capricious. Even assuming the district court considered all fact-related claims when it combined them together, the district court failed to address LJB Roofing and Beck's arguments that the Agency misapplied the law in several instances or that the ALJ's decision to "combine" the evidence was error. However, this does not require remand to the district court because this court reviews the appellants' claims as if they were appealed directly from the Agency to this court. See Board of Cherokee County Comm'rs, 306 Kan. at 318 (appellate court exercises judicial review of an agency's action as if the appeal was made directly to the appellate court); Dillard Dept. Stores, Inc. v. Kansas Dept. of Human Resources, 28 Kan. App. 2d 229, 232, 13 P.3d 358 (2000) (finding, under similar circumstances, that "a reviewing court has the same opportunity to examine and consider the evidence as did the court below and it can make its own de novo determination"). Further, the party seeking review in this court must appeal all issues, regardless of whether they were addressed by the district court, and thus all the substantive claims must have been brought before this court. See In re Adoption of Baby Girl G., 311 Kan. 798, 803, 466 P.3d 1207 (2020) (an issue not briefed is deemed waived or abandoned). It appears appellants brought all claims to this court. Therefore, because this court reviews the Agency decision as if directly appealed to this court, the district court's failure to review all issues presented in the petition for judicial review does not prevent appellate review. Thus, this court moves on to address the substantive claims. II. THE LEGAL CONCLUSIONS Appellants contend that the Agency, and thus the district court, misapplied the applicable law in several ways, including by determining that the supervisor claimants 11 were owed overtime pay under the FLSA; that LJB Roofing and Beck owed penalties under the KWPA for willful refusal to pay overtime due under the FLSA; and that LJB Roofing and Beck owed interest on unpaid overtime under the KWPA. The appellants' challenges amount to an argument that the Agency, and thus the district court, erred in concluding they violated the FLSA and that those violations carry the penalties and interest assessed under the KWPA. Upon review of these allegations of error, the record on appeal, and the various laws at issue, this court concludes that the KWPA enforcement and penalty provisions cannot be used to enforce claims for unpaid overtime under the FLSA. Additionally, the Agency erred in concluding that the FLSA applied to the overtime claims here. Because the FLSA does not apply to the overtime claims here, the case must be remanded for the Agency to determine whether the KMWMHL applies to confer liability for unpaid overtime. If the Agency finds the appellants liable for unpaid overtime under the KMWMHL it can then apply the KWPA as explained herein. Therefore, the court remands the case to the district court to remand to the Agency for consideration under the appropriate legal standards consistent with this opinion. A. The KWPA Does Not Apply to Claims for Overtime Pay Under the FLSA After finding that LJB Roofing violated the FLSA, albeit erroneously as explained below, the Agency applied the KWPA to impose interest and penalties related to those FLSA violations. The appellants challenge the KWPA interest and penalties as explained below. The FLSA is a federal law that, relevant here, requires employers to pay employees a minimum wage for all hours worked and nonexempt employees overtime pay for hours worked more than 40 per workweek. 29 U.S.C. § 207(a)(1). While the FLSA is not intended to prevent states from implementing more favorable minimum wage or maximum hour laws, the state laws must yield to the federal law when the state law "'interferes with or is contrary to federal law.'" Felder v. Casey, 487 U.S. 131, 138, 12 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988); see U.S. Const. art. VI, cl. 2. In fact, the FLSA contains its own robust penalty provisions intended to be used to enforce FLSA violations. See Anderson v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir. 2007) (explaining that "Congress prescribed exclusive remedies in the FLSA for violations of its mandates."). Kansas has also enacted laws specifically addressing minimum wage and maximum hours and related pay requirements. When the FLSA applies to overtime claims, the KMWMHL does not apply. See K.S.A. 44-1202(d); K.S.A. 44-1203(c); K.S.A. 44-1204(c)(1); Blair v. TransAm Trucking, Inc., 309 F. Supp. 3d 977, 984 (D. Kan. 2018) (stating that employers covered by the FLSA are not subject to the KMWMHL); McGowan v. Genesis Health Clubs Management, Inc., No. 17-2419-DDC- KGS, 2018 WL 572052, at *3 (D. Kan. 2018) (unpublished opinion) (same). The issue here is whether the KWPA—which does not contain provisions related to minimum hourly wage or overtime pay—can be used to enforce overtime claims under the FLSA. See Craig v. FedEx Ground Package System, Inc., 300 Kan. 788, 793, 335 P.3d 66 (2014) ("[T]he KWPA does not contain any express provision relating to the payment of overtime, which is typically pursued under a FLSA claim."). While the Kansas Supreme Court has not decided this issue, it did note that "[t]he KWPA controls several aspects of wages and benefits for the Kansas worker that are not covered by the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 (2012) et seq." 300 Kan. at 792. Since the court's decision in Craig, federal district courts in Kansas have consistently concluded that when the FLSA applies to confer liability for an unpaid overtime claim, the KWPA does not apply to penalize or enforce that FLSA liability. See Blair, 309 F. Supp. 3d at 995 (finding the FLSA preempts duplicative KWPA claims); Linde v. Envision Healthcare Corp., No. 2:20-cv-02661-HLT-TJJ, 2021 WL 3089214, at *4 (D. Kan. 2021) (unpublished opinion) (dismissing overtime claims brought under the 13 KWPA); Drowatzky v. ADT LLC, No. 620-cv-01065-HLT-KGG, 2020 WL 3639742, at *1 (D. Kan. 2020) (unpublished opinion) (plaintiff conceded FLSA preemption); Charbonneau v. Mortgage Lenders of America, L.L.C., No. 2:18-cv-2062-HLT-ADM, 2020 WL 3545624, at *8, 10 (D. Kan. 2020) (unpublished opinion) (explaining that overtime is covered by FLSA or the KMWMHL and that the KWPA does not concern overtime); McGowan, 2018 WL 572052, at *5 (". . . Kansas law precludes state statutory claims to recover overtime wages against FLSA-covered employers . . . ."); Larson v. FGX Intern., Inc., No. 14-2277-JTM, 2015 WL 1034334, at *3 (D. Kan. 2015) (unpublished opinion) (finding overtime claims covered by the FLSA preempt attempts to recover the same under the KWPA). Although these courts have found the KWPA inapplicable to FLSA violations for different reasons, the conclusions are consistent. The Fourth Circuit Court of Appeals addressed whether the FLSA preempted similar state law under conflict or obstacle preemption. See Anderson, 508 F.3d at 183. After discussing the extensive FLSA coverage for minimum wage and overtime claims and the relevant penalties, the court examined whether the state law claims stood "'as an obstacle to the accomplishment of the full purposes and objectives of' the FLSA." 508 F.3d at 193. After concluding that Congress intended the FLSA to provide exclusive relief for FLSA violations, the court ruled that the state law claims for violations of the FLSA were precluded because they merely duplicated the FLSA claims. 508 F.3d at 194- 95. However, courts have found that the doctrines of express and field preemption do not apply to the FLSA. See Baker v. Coxcom, Inc., 74 F. Supp. 3d 1375, 1379 (D. Kan. 2015) (field preemption); Barrus v. Dick's Sporting Goods, Inc., 732 F. Supp. 2d 243, 255-56 (W.D.N.Y. 2010) (express preemption). The KWPA does not provide employees with additional or different substantive rights than the FLSA for claims of unpaid overtime, and thus the KWPA cannot be used to enforce FLSA overtime violations. However, it is unnecessary to prolong that 14 discussion because the Agency also erred in finding that the overtime claims here implicated the FLSA. B. Insufficient Facts to Establish FLSA Coverage The appellants also contend that the Agency erred in concluding that the FLSA executive exemption did not apply to the two "supervisors" making them exempt from the FLSA overtime requirements. Under the FLSA executive exemption, a supervisory employee is exempt from receiving overtime pay when the employee meets the following four criteria: "(1) Compensated on a salary basis . . . at a rate of not less than [the level set forth in § 541.600]; "(2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof; "(3) Who customarily and regularly directs the work of two or more other employees; and "(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight." 29 C.F.R. § 541.100(a)(1)-(4). In evaluating this claim, the court finds that the FLSA is not implicated in the claims for overtime pay here and it is therefore unnecessary to determine whether the Agency correctly interpreted and applied the FLSA executive exemption. The FLSA protects employees from suffering unpaid overtime work when either: (1) the employer qualifies for the FLSA under the enterprise coverage criteria or (2) the employee pursuing a claim qualifies for the FLSA under the individual coverage criteria. Reagor v. Okmulgee County Family Resource Center, 501 Fed. Appx. 805, 808-09 (10th Cir. 2012) (unpublished opinion); see also 29 U.S.C. § 203(s)(1)(A); 29 C.F.R. § 776.0; 29 C.F.R. 15 § 776.22a. The Agency concluded that "LJB Roofing has engaged in interstate commerce by conducting construction projects outside of the State of Kansas and utilizing goods and materials which travel through interstate commerce." The Agency then applied the FLSA to the claims. When an employer meets the criteria for enterprise coverage, then every employee—unless otherwise exempted—is protected under the FLSA. Prince v. Kansas City Tree Care, LLC, 660 F. Supp. 3d 1082, 1096 (D. Kan. 2023). There are three ways to establish enterprise coverage under the FLSA, but only one is relevant here. See 29 U.S.C. § 203(s)(1)(A). For LJB Roofing to be subject to enterprise coverage under the FLSA, it must have an annual gross sales volume of at least $500,000 and be "engaged in commerce or in the production of goods for commerce," which means it has employees engaged in commerce or handling, selling, or working on goods or materials that have been moved in or produced for commerce. 29 U.S.C. § 203(s)(1)(A)(i), (ii). Looking at LJB Roofing's gross receipts, which were under $300,000, the Agency determined that LJB Roofing did not meet the minimum gross sales volume for enterprise coverage. That finding is not in dispute. Therefore, because no evidence in the record shows that LJB Roofing meets the annual sales minimum for enterprise coverage, this court finds insufficient evidence in the record to conclude that LJB Roofing is subject to enterprise coverage under the FLSA for the overtime claims here. See Collar v. Abalux, Inc., No. 16-20872-CIV, 2018 WL 7364573, at *5 (S.D. Fla.) (unpublished opinion) (finding gross sales of $499,717 failed to meet the $500,000 threshold to qualify an employer for enterprise coverage under the FLSA), aff'd 895 F.3d 1278 (11th Cir. 2018). Having found that LJB Roofing does not meet the criteria for enterprise coverage here, this court must determine whether the claimants qualify for individual coverage under the FLSA. 16  As the Agency explained, individual coverage under the FLSA stems from the actual conduct of the individual employee seeking protection—not from the overall activities of the business. Reagor, 501 Fed. Appx. at 809. Individual coverage exists when the employee "in any workweek is engaged in commerce or in the production of goods for commerce." 29 U.S.C. § 207(a). To be engaged in commerce is more than just performing activities affecting commerce, it requires that the employee's activities be "actually in or so closely related to the movement of the commerce as to be a part of it." McLeod v. Threlkeld, 319 U.S. 491, 497, 63 S. Ct. 1248, 87 L. Ed. 1538 (1943). Engaging in commerce means the employee must directly participate in moving persons or things in interstate commerce by either performing work for an instrumentality of interstate commerce, such as work for a transportation or communication entity, or by regularly using instrumentalities of interstate commerce such as interstate communication or travel in the course of their work. Reagor, 501 Fed. Appx. at 809; Thorne v. All Restoration Services, Inc., 448 F.3d 1264, 1266-67 (11th Cir. 2006). The FLSA has promulgated regulations specific to the construction industry, which plausibly apply here and outline the criteria for determining when an individual is performing work covered by the FLSA. 29 C.F.R. § 776.23(a), (b), (c), and (d); 29 C.F.R. § 776.24. FLSA covered construction projects are those where the employees perform "construction work which is closely or intimately related to the functioning of existing instrumentalities and channels of interstate commerce or facilities for the production of goods for such commerce are within the scope of the [FLSA]." 29 C.F.R. § 776.23(c). Noncovered construction projects are those that are "purely local," and in those circumstances, individual employees may still be covered "by reason of their interstate activities." 29 C.F.R. § 776.23(d)(1). If the employee is engaged in covered and noncovered work throughout a week, the employee "is entitled to the benefits of the [FLSA] for the entire week regardless of the amount of covered activities which are involved." 29 C.F.R. § 776.23(b). 17  First, there is no evidence that the claimants conducted regular interstate activities to make them individually covered by the FLSA. See St. Elien v. All County Environmental Services, 991 F.3d 1197, 1199 (11th Cir. 2021) (employee conducted regular interstate calls to customers and vendors which left question of individual FLSA coverage for jury). While the evidence suggests that some of LJB Roofing's projects were outside of Kansas, the Agency explained there was no information provided "to establish which week or weeks LJB Roofing performed work outside the State of Kansas," or even which claimants performed work outside the state. See Wirtz v. Ferguson, 317 F.2d 343, 346 (5th Cir. 1963) (distinguishing activities of a "local roofer" with an employee who had "a regular and continuing basis or nexus with commerce or the production of goods for commerce"). Additionally, there was no evidence that claimants were engaged in interstate activities even though the Agency noted that there was also no evidence that all the materials and equipment used by LJB Roofing were "exclusively manufactured and sold in the State of Kansas." Having occasional trips across state lines does not establish that an employee is engaged in interstate commerce. See Martinez Matute v. CNN Const. Inc., 415 F. Supp. 3d 226, 233 (D.D.C. 2019) (finding an employee who irregularly or in an isolated manner "'happens to cross a State line in the course of his employment'" is not covered by the FLSA for that sole reason). Here, there is simply no evidence that during the relevant timeframe the claimants regularly ordered, procured, or moved goods in interstate commerce, worked with goods obtained through interstate commerce, or worked outside of Kansas. Second, there is no evidence that the claimants performed work within Kansas on instrumentalities of interstate commerce such as airports, railroad facilities, highway facilities, or telecommunication infrastructure that are regularly used for interstate commerce. See Mitchell v. Lublin, McGaughy & Assocs., 358 U.S. 207, 212, 79 S. Ct. 260, 3 L. Ed. 2d 243 (1959) (finding individual FLSA coverage because the workers "all worked intimately with the plans and specifications . . . for the repair and construction of various interstate instrumentalities and facilities including air bases, roads, turnpikes, bus 18 terminals, and radio and television installations"); Moss v. Gillioz Const. Co., 206 F.2d 819, 821 (10th Cir. 1953) (explaining work would be sufficient to entitle night watchman of bridge construction to individual coverage if it related to an "existing interstate facility, such as . . . to an existing interstate railroad bridge" ). During the relevant timeframe, there was not substantial evidence upon which to conclude the claimants were engaged in interstate commerce to invoke individual coverage under the FLSA. See Razey v. Unified School District, 205 Kan. 551, 556, 470 P.2d 809 (1970) (finding insufficient evidence to establish FLSA individual coverage for school custodians); Rucker v. First Nat. Bank. Of Miami, Okl., 138 F.2d 699, 702 (10th Cir. 1943) (the party asserting FLSA individual coverage carries the burden to establish such coverage). Therefore, when the record is viewed as a whole, substantial evidence does not support the Agency's conclusion that the FLSA applied to the claims for unpaid overtime, and thus the Agency misapplied the law. If the FLSA does not apply to the claims for unpaid overtime, then the Agency must determine whether the KMWMHL, the state law counterpart to the FLSA, applies. "The KMWMHL provides protections for many workers in the state by ensuring that they cannot be compelled to work overtime without fair compensation." Dollison v. Osborne County, 241 Kan. 374, 380, 737 P.2d 43 (1987). The KMWMHL often fills gaps by protecting claimants who are not covered by the FLSA. See 241 Kan. at 382 ("If an employment relationship is excluded from the FLSA, it would not be excluded from the KMWMHL," absent an "independent basis for excluding the relationship from the state law."). Although the KMWMHL also protects employees from unpaid overtime, it has different requirements and protections than the FLSA. Notably, the KMWMHL requires covered employers to pay covered employees time and a half for any time worked more than 46—rather than 40—hours per week. Compare K.S.A. 44-1204(a) with 29 U.S.C. 19 § 207(a)(1). A covered employer found to have not properly paid overtime under the KMWMHL is liable "for the full amount of such wages and overtime compensation, less any amount actually paid to such employee by the employer, and for costs and such reasonable attorney fees as may be allowed by the court in an action for the recovery of such wages and overtime compensation." K.S.A. 44-1211(a). In addition to the wages owed, costs, and reasonable attorney fees, the covered employer is subject to fines of not less than $250 and not more than $1,000. K.S.A. 44-1210(a); K.S.A. 44-1211. The Secretary of the Kansas Department of Labor may take assignment of an employee's KMWMHL claims and pursue legal action to collect the amounts owed. K.S.A. 44- 1211(b). The record does not support a finding that the FLSA applies to the overtime claims under either enterprise or individual coverage. Additionally, the Agency erred in applying the KWPA to enforce what it erroneously determined to be FLSA overtime violations. Therefore, the Agency's final order finding violations of the FLSA, including associated legal conclusions related to the overtime pay owed claimants under the FLSA, is reversed and remanded for reconsideration under the KMWMHL. C. The KWPA May Be Applied to Violations of the KMWMHL for Unpaid Overtime On remand, if the Agency determines the claimants are owed for overtime pay under the KMWMHL, as explained herein, it may then apply the KWPA. The KWPA was enacted in 1973 to address the plight of employees who were not properly paid for services rendered, particularly those employees not covered by the FLSA or the National Labor Relations Board. K.S.A. 44-313 et seq.; see also Craig, 300 Kan. at 792-93 (discussing the KWPA). The Kansas Supreme Court described the KWPA as an "'expansive and comprehensive legislative scheme that is broad in its scope and the