JESSE BUSK; LAURIE CASTRO; SIERRA WILLIAMS; MONICA WILLIAMS; VERONICA HERNANDEZ v. INTEGRITY STAFFING SOLUTIONS, INC.; AMAZON.COM, INC.
Nos. 17-5784/5785
United States Court of Appeals for the Sixth Circuit
September 19, 2018
18a0207p.06
BATCHELDER and CLAY, Circuit Judges; SARGUS, District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Argued: June 14, 2018.
COUNSEL
ARGUED: Joshua D. Buck, THIERMAN BUCK LLP, Reno, Nevada, for Appellants. Rick D. Roskelley, LITTLER MENDELSON, Las Vegas, Nevada, for Appellee Integrity Staffing Solutions. Richard G. Rosenblatt, MORGAN, LEWIS & BOCKIUS, LLP, Princeton, New Jersey, for Appellee Amazon.com. ON BRIEF: Joshua D. Buck, Mark R. Thierman, THIERMAN BUCK LLP, Reno, Nevada, for Appellants. Rick D. Roskelley, LITTLER MENDELSON, Las Vegas, Nevada, Cory G. Walker, LITTLER MENDELSON, Phoenix,
CLAY, J., delivered the opinion of the court in which SARGUS, D.J., joined, and BATCHELDER, J., joined in part. BATCHELDER, J. (pp. 27–28), delivered a separate opinion concurring in part and dissenting in part.
OPINION
CLAY, Circuit Judge. Plaintiffs in this purported class action seek compensation under Nevada and Arizona law for time spent undergoing or waiting to undergo mandatory onsite security screenings at the Amazon facilities where they worked. The district court granted summary judgment for Defendants on the grounds that time related to security checks is not compensable as “hours worked” under Nevada and Arizona labor law. Because we conclude that time spent undergoing mandatory security checks is compensable under Nevada law, we REVERSE the district court‘s judgment with regard to the Nevada claims and REMAND for further proceedings. Because we conclude that the Arizona Plaintiffs have failed to satisfy Arizona‘s “workweek requirement,” we AFFIRM the district court‘s dismissal of Plaintiffs’ Arizona claims.
BACKGROUND
Factual Background
Defendant Integrity Staffing Solutions, Inc. (“Integrity“), provides warehouse labor services to businesses throughout the United States where hourly workers fill orders, track merchandise, and process returns. Integrity employs thousands of hourly warehouse employees like Plaintiffs at each of Defendant Amazon.com‘s (“Amazon“) facilities. Some Plaintiffs in this case were hourly employees of Integrity at warehouses in Nevada and Arizona. Other Plaintiffs were directly employed by Amazon. According to Plaintiffs, “Amazon.com exercises direct control over the hours and other working conditions of all Plaintiffs and all similarly-situated hourly shift employees who are paid on the payroll of Integrity working at all Amazon.Com‘s [sic] warehouse locations nationwide.” (R. 134, Third Amended Compl., PageID # 2351.)
Procedural History
In 2010, Plaintiffs filed a putative class action in the District Court of Nevada against Integrity on behalf of similarly situated employees in the Nevada warehouses for alleged violations of the
The district court dismissed Plaintiffs’ first amended complaint for failure to state a claim, holding that the time spent waiting for and undergoing the security screenings was not compensable under the
Plaintiffs appealed to the Ninth Circuit, which affirmed the dismissal of the meal-period claims but reversed as to the security-check claims. Busk v. Integrity Staffing Sols., Inc., 713 F.3d 525 (9th Cir. 2013). The Ninth Circuit asserted that post-shift activities that would ordinarily be classified as noncompensable postliminary activities are nevertheless compensable as integral and indispensable to an employee‘s principal activities if those post-shift activities are necessary to the principal work performed and done for the benefit of the employer. Id. at 530. Accepting as true the allegation that Integrity required the security screenings to prevent employee theft, the court concluded that the screenings were “necessary” to the employees’ primary work as warehouse employees and done for Integrity‘s benefit. Id. at 531.
The case was then appealed to the Supreme Court, which held that the time related to the security checks was not compensable under the
Following the Supreme Court‘s reversal, the Ninth Circuit remanded the remainder of Plaintiff‘s state law claims to the district court. Busk v. Integrity Staffing Sols., Inc., 797 F.3d 756 (9th Cir. 2015). Plaintiffs again amended their complaint, and the case was then transferred to an ongoing multidistrict litigation in the Western District of Kentucky.
Consistent with the Supreme Court‘s decision, Plaintiffs’ third amended complaint eliminates the claims for compensation under federal law and asserts claims under Nevada and Arizona law for unpaid wages and overtime, as well as minimum wage violations. Plaintiffs asserted their claims as a class action under Rule 23 of the Federal Rules of Civil Procedure on behalf of the following persons:
Nevada Class: All person [sic] employed by Defendants, and/or each of them, as hourly paid warehouse employees who worked for Defendant(s) within the State of Nevada at anytime [sic] within three years prior to the original filing date of the complaint in this action.
Arizona Class: All person [sic] employed by Defendants, and/or each of them, as hourly paid warehouse employees who worked for Defendant(s) within the State of Arizona at any time from within three years prior to the filing of the original complaint until the date of judgment after trial, and shall encompass all claims by such persons for the entire tenure of their employment as provided in
A.R.S. 23-364 (G) .
(R. 134, Third Amended Compl., PageID # 2353.)
The Nevada plaintiffs allege claims on behalf of themselves and the Nevada Class for failing to pay for all the hours worked (
Defendants filed a motion to dismiss the claims, which the district court granted. The district court dismissed the Nevada claims on three grounds: first, there was no private right of action to assert claims under Nevada‘s wage-hour statutes, NRS Chapter 608; second, Nevada law incorporated the
Plaintiffs filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
We review the district court‘s grant of a motion to dismiss under Rule 12(b)(6) de novo. Puckett v. Lexington-Fayette Urban Cty. Gov‘t, 833 F.3d 590, 599 (6th Cir. 2016). When reviewing such a grant, “we must ‘accept all factual allegations as true,’ construing the complaint, ‘in the light most favorable to the plaintiff[s].‘” Id. (quoting Laborers’ Local 265 Pension Fund v. iShares Trust, 769 F.3d 399, 403 (6th Cir. 2014)) (alteration in Puckett). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
II. Analysis
A. Nevada employees have a private right of action to pursue unpaid wage and penalty claims
The court‘s main basis for dismissing Plaintiffs’ Nevada law claims was its legal conclusion that there is no private right of action for the recovery of unpaid wages under Nevada law. The court held that “no private right of action exists for violations of
Because
NRS 608.016 ,NRS 608.018 , andNRS 608.020 through NRS 608.050 do not expressly state whether an employee could privately enforce their terms, Neville may only pursue his claims under the statutes if a private cause of action for unpaid wages is implied. The determinative factor is always whether the Legislature intended to create a private judicial remedy. We conclude that the Legislature intended to create a private cause of action for unpaid wages pursuant toNRS 608.140 . It would be absurd to think that the Legislature intended a private cause of action to obtain attorney fees for an unpaid wages suit but no private cause of action to bring the suit itself. See Bisch v. Las Vegas Metro. Police Dep‘t, 129 Nev. 328, 336, 302 P.3d 1108, 1114 (2013) (“In order to give effect to the Legislature‘s intent, [this court] ha[s] a duty to consider the statute[s] within the broader statutory scheme harmoniously with one another in accordance with the general purpose of those statutes.” (internal quotation marks omitted)). The Legislature enactedNRS 608.140 to protect employees, and the legislative scheme is consistent with private causes of action for unpaid wages under NRS Chapter 608.
The court‘s intervening decision thus decides the issue in this case: Plaintiffs do have a private cause of action for unpaid wages. The district court‘s decision to the contrary is reversed.1
In Integrity Staffing, the Supreme Court held that the post-shift security screenings at issue in this case were noncompensable postliminary activities under the
“As a federal court applying state law, ‘we anticipate how the relevant state‘s highest court would rule in the case and are bound by controlling decisions of that court.‘” Vance v. Amazon.com, 852 F.3d 601, 610 (6th Cir. 2017) (quoting In re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005)). Neither the Nevada Supreme Court nor the Arizona Supreme Court have decided whether their states have adopted the federal
Before turning to an analysis of Nevada and Arizona law, we will first explain how the issue is decided under federal law. We will then address whether time spent undergoing security screenings is compensable under Nevada and Arizona law.
1. Time spent undergoing security screenings is noncompensable postliminary activity under federal law
In Vance, this Court recently had occasion to explain the background of the
“Enacted in 1938, the
FLSA established a minimum wage and overtime compensation for each hour worked in excess of 40 hours in each workweek.”
Integrity Staffing, 135 S.Ct. at 516. “The Act did not, however, define the key terms ‘work’ and ‘workweek.‘” Sandifer v. U.S. Steel Corp., 134 S.Ct. 870, 875 (2014). Absent congressional guidance, the Supreme Court interpreted these terms broadly. Integrity Staffing, 135 S.Ct. at 516. “It defined ‘work’ as ‘physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.‘” Id. (quoting Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944)). Only months after Tennessee Coal, the Court expanded the definition further, “clarif[ying] that ‘exertion’ was not in fact necessary for an activity to constitute ‘work’ under the FLSA,” for “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005) (quoting Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944)). “Readiness to serve may be hired, quite as much as service itself,” and must therefore also be compensated. Armour, 323 U.S. at 133.
The Court took a similar approach with “the statutory workweek,” which “include[d] all time during which an employee is necessarily required to be on the employer‘s premises, on duty or at a prescribed workplace.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 690–91 (1946). “That period, Anderson explained, encompassed time spent ‘pursuing certain preliminary activities after arriving, such as putting on aprons and overalls and removing shirts.‘” Sandifer, 134 S.Ct. at 875 (quoting Anderson, 328 U.S. at 692-93) (ellipsis and brackets omitted). Per Anderson, these preparatory efforts “are clearly ‘work’ under the Act.” Id. at 693.
Together, these holdings led to decisions requiring compensation for nearly every minute an employer required its employees to be on the employer‘s premises, including “the time spent traveling between mine portals and underground work areas,” and “walking from timeclocks to work benches.” Integrity Staffing, 135 S.Ct. at 516 (citing Tenn. Coal, 321 U.S. at 598, and Anderson, 328 U.S. at 691–92). They also “provoked a flood of litigation,” including 1,500 FLSA actions filed within six months of the Court‘s ruling in Anderson. Id.
“Congress responded swiftly.” Id. Finding the Court‘s decisions had “creat[ed] wholly unexpected liabilities” with the capacity to “bring about financial ruin of many employers,” it enacted the
Portal-to-Portal Act of 1947 . Id. at 516–17 (quoting29 U.S.C. § 251(a)–(b) ). The Act excepted two activities the Court previously deemed compensable: “walking on the employer‘s premises to and from the actual place of performance of the principal activity of the employee, and activities that are ‘preliminary or postliminary’ to that principal activity.” IBP, 546 U.S. at 27; see also Integrity Staffing, 135 S.Ct. at 516–17 (detailing history). Under thePortal-to-Portal Act then, an employee‘sprincipal activities are compensable, while conduct he engages in before and after those activities (i.e., preliminary and postliminary acts) is not. “[P]rincipal activity” refers to the activity “an employee is employed to perform.” Integrity Staffing, 135 S.Ct. at 517, 519. “[T]he term principal activity . . . embraces all activities which are an integral and indispensable part of the principal activities.” IBP, 546 U.S. at 29–30 (internal quotation marks and citation omitted). An activity is “integral and indispensable” to the principal activities an individual is employed to perform “if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Integrity Staffing, 135 S.Ct. at 517. In other words, an activity is integral and indispensable to the work an employee was hired to do if it is a component of that work, and he cannot complete the work without it. Id.
Applying these terms, the Integrity Staffing Court held that post-shift security screenings were neither the principal activity Amazon hired its employees to perform, nor “integral and indispensable” to that activity:
To begin with, the screenings were not the “principal activity or activities which [the] employee is employed to perform.” Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.
The security screenings also were not “integral and indispensable” to the employees’ duties as warehouse workers. . . . The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.
Id. at 518 (citation omitted). The screenings were therefore “postliminary” to the employees’ principal activities and excluded from compensation pursuant to the
Portal-to-Portal Act .
Thus, Plaintiffs’ claims for compensation would fail and have failed under federal law. The question on appeal is whether they also fail under Nevada and Arizona state law.
a. Nevada
In Nevada, the first rule in construing statutes “is to give effect to the legislature‘s intent.” Salas v. Allstate Rent-A-Car, Inc., 14 P.3d 511, 513 (Nev. 2000) (citing Cleghorn v. Hess, 853 P.2d 1260, 1262 (Nev. 1993)). “In so doing, we first look to the plain language of the statute. Where the statutory language is ambiguous or otherwise does not speak to the issue before us, we will construe it according to that which ‘reason and public policy would indicate the legislature intended.‘” Id. at 513–14 (quoting State, Dep‘t of Mtr. Vehicles v. Lovett, 874 P.2d 1247, 1249–50 (Nev. 1994)). “In such situations, legislative intent may be ascertained by reference to the entire statutory scheme.” Id. at 514 (citation omitted).
“When a federal statute is adopted in a statute of this state, a presumption arises that the legislature knew and intended to adopt the construction placed on the federal statute by federal courts. This rule of [statutory] construction is applicable, however, only if the state and federal acts are substantially similar and the state statute does not reflect a contrary legislative intent.” Century Steel, Inc. v. State, Div. of Indus. Rel., Occupational Safety and Health Section, 137 P.3d 1155, 1158–59 (Nev. 2006) (adopting a federal construction where the “state and federal statutes [were] nearly identical” and “the state statute [did] not reflect a legislative intent contrary to the federal statute“).
Thus, when interpreting state provisions that have analogous federal counterparts, Nevada courts look to federal law unless the state statutory language is “materially different” from or inconsistent with federal law. Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 900–01 (9th Cir. 2013); see Terry v. Sapphire Gentlemen‘s Club, 336 P.3d 951, 955–56 (Nev. 2014) (endorsing the rule in Rivera). Nonetheless, the Nevada Supreme Court “has signaled its willingness to part ways with the FLSA where the language of Nevada‘s statutes has so required.” Terry, 336 P.3d at 955–56.
Similarly, when interpreting Arizona law, “one of the fundamental goals of statutory construction is to effectuate legislative intent.” Canon Sch. Dist. No. 50 v. W.E.S. Const. Co., 869 P.2d 500, 503 (Ariz. 1994) (citing Automatic Registering Mach. Co. v. Pima County, 285 P. 1034, 1035 (Ariz. 1930)). “Yet, [e]qually fundamental is the presumption that what the Legislature means, it will say.” Id. (quoting Padilla v. Industrial Comm‘n, 546 P.2d 1135, 1137 (Ariz. 1976)). “For this reason, [Arizona courts] have often stated that the ‘best and most reliable index of a statute‘s meaning is its language,’ and where the language is plain and unambiguous, courts generally must follow the text as written.” Id. (quoting Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991)).
Arizona courts may look to federal interpretations for guidance where an Arizona statute is “patterned after” a federal statute and where “Arizona courts have not addressed the issue presented.” See Rosier v. First Fin. Capital Corp., 889 P.2d 11, 13–14 (Ariz. Ct. App. 1994).
3. Time spent undergoing security screenings is “work” under Nevada and Arizona law
Plaintiffs brought claims under
Plaintiffs contend that “[t]here has never been any dispute that the time spent undergoing the anti-theft security screening is ‘work’ under either federal or the various state wage-hour laws.” (Brief for Appellants at 12.) Defendants, however, argue that “there absolutely has been such a dispute throughout the entirety of the case, because time spent passing through security screening is not work under either federal, Nevada, or Arizona law.” (Brief for Appellees at 6 (emphasis in original).)
a. Nevada
Under the Nevada Administrative Code, “hours worked” includes “all time worked by the employee at the direction of the employer, including time worked by the employee that is outside the scheduled hours of work of the employee.”
Putting aside the
Nonetheless, Defendants put forth two arguments for why time spent undergoing mandatory security screenings is not “work” under Nevada law: (1) the
First, Defendants misread what the
[N]o employer shall be subject to any liability . . . under the
Fair Labor Standards Act . . . on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947—(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or postliminary to said principal activity or activities,
which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
As we read this language, the
Other than its express exceptions for travel to and from the location of the employee‘s “principal activity,” and for activities that are preliminary or postliminary to that principal activity, the
Portal-to-Portal Act does not purport to change this Court‘s earlier descriptions of the terms “work” and “workweek,” or to define the term “workday.” A regulation promulgated by the Secretary of Labor shortly after its enactment concluded that the statute had no effect on the computation of hours that are worked “within” the workday.
IBP, Inc. v. Alvarez, 546 U.S. 21, 28 (2005). This view also seems to comport with
The United States Supreme Court originally stated that employees subject to the act must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer and his business.” (Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944)) Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his employer, that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer‘s property may be treated by the parties as a benefit to the employer.” (Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944)) The workweek ordinarily includes “all the time during which an employee is necessarily required to be on the employer‘s premises, on duty or at a prescribed work place“. (Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)) The Portal-to-Portal Act did not change the rule except to provide an exception for preliminary and postliminary activities. See § 785.34.
Nothing in the Supreme Court‘s decision in Integrity Staffing changed this definition of “work” or the recognition in IBP, Inc. and § 785.7 that the
Second, Defendants argue that time spent waiting to undergo security screenings is not “work” because “it involves no exertion.” (Brief for Appellees at 7.) This argument is highly dubious for a number of reasons, not the least of which is that undergoing security screening clearly does involve exertion. Further, it is not at all clear that Nevada and Arizona‘s definitions of “work” require “exertion” even if they incorporate the federal definition because even the federal definition no longer requires “exertion.” See
Defendants cite to the Supreme Court‘s decision in Tennessee Coal, which, in addition to providing the current definition of “work,” held that in order for an activity to be “work” it must involve “physical or mental exertion (whether burdensome or not).” 321 U.S. at 598. However,
In sum, Nevada law incorporates the federal definition of “work,” and this broad definition encompasses the type of activity at issue in this case.3
Like Nevada, Arizona also fails to define “work.” Therefore, it is again appropriate to turn to the federal law for a definition of “work.” See Rosier, 889 P.2d 13–14. And, as the analysis above shows, time spent undergoing mandatory security screenings is “work” under federal law and, thus, under Arizona law. But the case under Arizona law may be even stronger.
Arizona law also provides a definition for “hours worked,” which states as follows: “‘Hours worked’ means all hours for which an employee covered under the Act is employed and required to give to the employer, including all time during which an employee is on duty or at a prescribed work place and all time the employee is suffered or permitted to work.”
Arizona‘s broad definition of “hours worked” makes it even clearer than Nevada law that time spent undergoing mandatory security screenings is “work.”
4. Neither Nevada nor Arizona incorporate the federal Portal-to-Portal Act
a. Nevada
Upon concluding that time spent undergoing mandatory security screenings is “work” under Nevada law, the next question is whether the Nevada legislature has exempted this “work” from being deemed “compensable” under their state wage-hour statutes, as Congress did in enacting the
The district court dismissed both Plaintiffs’ Nevada statutory claims and Nevada constitutional claims on the grounds that Nevada had adopted the
Plaintiffs argue that it was appropriate for the district court to look to the federal law‘s definition of “work,” for the reasons we have given above. (Brief for Appellants at 20.) But Plaintiffs also argue that it was inappropriate for the district court to look to the
As mentioned above, the
[N]o employer shall be subject to any liability . . under the
Fair Labor Standards Act . . . on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such employee engaged in on or after May 14, 1947—(3) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and
(4) activities which are preliminary to or postliminary to said principal activity or activities,
which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.
Plaintiffs argue that Nevada has not adopted “the Portal-to-Portal Act or any comparable legislation.” (Brief for Appellants at 13.) Their primary piece of evidence is the absence of evidence that the Nevada legislature did so. They argue that “[t]he problem for Amazon and the District Court is that there are no ‘portal-to-portal like’ statutes, regulations, or constitutional amendments under Nevada and/or Arizona wage-hour law” and “[t]his fact alone should be the end of the inquiry.” (Id. at 22–23.)
Further, the Nevada legislature expressly included references to federal regulations in multiple parts of NRS Chapter 608. See, e.g.,
There are two Nevada statutes or regulations that bear some resemblance to provisions in the
Defendants make multiple references to places where Nevada wage-hour law parallels the FLSA, and they refer the Court to cases holding that Nevada courts will interpret a provision of Nevada law the same as its parallel provision in the FLSA. None of that is surprising. But this reasoning is simply irrelevant where Nevada law has no provision parallel to a particular FLSA provision.
Defendants also argue that “there is no Nevada law . . . obviating the Portal-to-Portal amendments to the FLSA.” (Brief for Appellees at 23.) True enough. But there is no reason to think such a law would be necessary. Instead, the Nevada legislature has chosen not to affirmatively adopt the law anywhere in the Nevada state code. If, at some point, the Nevada legislature decides to explicitly incorporate the
Furthermore, despite the apocalyptic implications that Defendants seem to believe rejecting the
In sum, because there is no reason to believe that the Nevada legislature intended to adopt the
As for Arizona, Plaintiffs argue that it too has not “adopted the Portal-to-Portal Act or any comparable legislation.” (Brief for Appellants at 13.) The district court, however, held that “[t]he Arizona plaintiffs’ claims fail for similar reasons” as the Nevada plaintiffs, (R. 236, Order, PageID # 4699), namely, that Plaintiffs were unable to “identify any [Arizona] law that is irreconcilable with the Portal-to-Portal Act.” (Id. at PageID # 4695.) As with the Nevada claims, Plaintiffs’ argument is that there is no evidence that the Arizona legislature adopted the Act. Indeed, nothing in the Arizona code seems to parallel or incorporate the
Arizona law also seems inconsistent with the
For purposes of enforcement and implementation of [the Arizona Wage Act], in interpreting and determining “hours worked” under this Act . . . the Industrial Commission of Arizona will be guided by and rely upon 29 CFR Part 785 – Hours Worked Under the Fair Labor Standards Act . . . .
(Brief for Appellees at 26 (alteration and emphasis in Appellee‘s brief).) Part 785 includes subpart 785.50, which is the codification of the federal
For purposes of enforcement and implementation of this Act, in interpreting and determining “hours worked” under this Act, and where consistent with A.A.C. R20-5-1201 et seq. (Arizona Minimum Wage Act Practice and Procedure), the Industrial Commission of Arizona will be guided by and rely upon 29 CFR Part 785 – Hours Worked Under the Fair Labor Standards Act of 1938.
Substantive Policy Statement Regarding Interpretation of “Hours Worked” For Purposes of the Arizona Minimum Wage Act, available at https://www.azica.gov/labor-substantive-policy-hours-worked.aspx (last visited May 31, 2018) (emphasis added). The unaltered statement, rather than adopting the FLSA‘s interpretation in its entirely, merely sets forth the same principle discussed above: namely, that Arizona, like Nevada, looks to the federal law for guidance where it has parallel provisions. Where Arizona law does not have a parallel provision, this statement is not a license to create one.
In sum, there is nothing to suggest that the Arizona legislature intended to adopt the federal
C. The Fair Labor Standards Act‘s “workweek requirement”
The district court dismissed Plaintiffs’ Nevada and Arizona claims for the additional reason that they “do not allege that there was a week for which they were paid less than minimum wage.” (R. 236, Order, PageID # 4698 (citing Richardson v. Mountain Range Restaurants LLC, No. CV-14-1370-PHX-SMM, 2015 WL 1279237 (D. Ariz. March 20, 2015)).) Again, the district court based its conclusion largely on the assumption that Nevada and Arizona incorporate the FLSA.
“The FLSA mandates that ‘[e]very employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce’ a statutory minimum hourly wage.” Stein v. HHGREGG, Inc., 873 F.3d 523, 530 (6th Cir. 2017) (citing
29 U.S.C. § 206(a) ). “In addition, if an employee works in excess of forty hours a week, the employee must ‘receive[ ] compensation for his employment in excess of [forty hours] at a rate not less than one and one-half times the regular rate at which he is employed.‘” Id. at 536 (quoting29 U.S.C. § 207(a) ). “The ‘regular rate’ is ‘the hourly rate actually paid the employee for the normal, nonovertime workweek for which he is employed,’ and is ‘computed for the particular workweek by a mathematical computation in which hours worked are divided into straight-time earnings for such hours to obtain the statutory regular rate.‘” Id. at 536-37 (quoting29 C.F.R. § 779.419 ). “Assuming a week-long pay period, the minimum wage requirement is generally met when an employee‘s total compensation for the week divided by the total number of hours worked equals or exceeds the required hourly minimum wage, and the overtime requirements are met where total compensation for hours worked in excess of the first forty hours equals or exceeds one and one-half times the minimum wage.” Id. at 537 (citing Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 n.16 (1942); United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir. 1960)).
Thus, under federal law, Plaintiffs would be required to identify a particular workweek in which, taking the average rate, they received less than the minimum wage per hour. Plaintiffs argue that Nevada and Arizona law does not calculate the wage requirement in the same way, but that, instead, they only require a plaintiff to allege an hour of work for which she received less than the statutory minimum wage. We agree that there is no basis for concluding that Nevada incorporates the federal workweek requirement. However, we also conclude that Arizona does have an analogous requirement that bars Plaintiffs’ claims for minimum wage violations under Arizona law.
The district court held that Plaintiffs’ Nevada minimum-wage claims failed for the additional reason that “[u]nder the FLSA, ‘the workweek as a whole, not each individual hour within the workweek, determines whether an employer has complied with’ the minimum-wage requirement; ‘no minimum wage violation occurs so long as the employer‘s total wage paid to an employee in any given workweek divided by the total hours worked in the workweek equals or exceeds the minimum wage rate.‘” (R. 236, Order, PageID # 4697 (quoting Richardson, 2015 WL 1279237, at *13–14).) The district court rejected Plaintiffs’ argument there was a relevant difference between FLSA and Nevada law.
But there is no basis for the conclusion that Nevada has adopted the FLSA‘s workweek requirement. Indeed, Nevada‘s statutes would seem to be inconsistent with such a requirement.
The cases cited by Defendant for the proposition that Nevada incorporates the federal workweek requirement are not availing. For instance, Levert v. Trump Ruffin Tower I, LLC, No. 2:14-cv-01009-RCJ-CWH, (D. Nev. Jan. 9, 2015), actually does not address claims brought under Nevada law. Instead, it holds that Plaintiffs could not bring their FLSA claims because they failed to satisfy the workweek requirement, and then it declined to exercise supplemental
On balance, we conclude that there is insufficient reason to hold that Nevada adopted the federal workweek requirement.
2. Arizona Law
As for the Arizona plaintiffs, however, we conclude that Arizona does apply a “workweek requirement” analogous to that provided by the FLSA.5 The district court noted that there was a “dearth of precedent” on whether Arizona adopted the federal workweek standard. (R. 236, Order, PageID # 4701.) However, the regulation is clear:
(B) If the combined wages of an employee are less than the applicable minimum wage for a work week, the employer shall pay monetary compensation already earned, and no less than the difference between the amounts earned and the minimum wage as required under the Act.
(C) The workweek is the basis for determining an employee‘s hourly wage. Upon hire, an employer shall advise the employee of the employee‘s designated workweek. Once established, an employer shall not change or manipulate an employee‘s workweek to evade the requirements of the act.
Yes. Minimum wage shall be paid for all hours worked regardless of the frequency of payment and regardless of whether the wage is paid on an hourly, salaried, commissioner, piece rate, or any other basis. If in any workweek the combined wages of an employee are less than the applicable minimum wage, the employer shall pay, in addition to sums already earned, no less than the difference between the amounts earned and the minimum wage.
Industrial Commission of Arizona, Frequently Asked Questions, available at: https://www.azica.gov/frequently-asked-questions-about-wage-and-earned-paid-sick-time-laws (last visited May 31, 2018) (emphasis added).
Thus, because the Arizona plaintiffs have failed to allege a workweek in which they failed to receive the minimum wage, they have failed to plead a violation of Arizona minimum wage law.
CONCLUSION
For the reasons set forth above, we AFFIRM the district court‘s dismissal of Plaintiffs’ Arizona claims and REVERSE the district court‘s judgment with regard to the Nevada claims in part and REMAND for further proceedings consistent with the opinion of this court.
ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in part. “As a federal court applying state law, we anticipate how the . . . state‘s highest court would rule in the case and . . . [i]f [that] court has not yet addressed the issue, . . . render a prediction by looking to all the available data.” Vance v. Amazon.com, 852 F.3d 601, 610 (6th Cir. 2017) (quotation marks and citations omitted). In this case, I would expect the Nevada Supreme Court to find that Nevada‘s wage-and-hour statutes do not differ materially from the
In deciding wage-and-hour issues, Nevada courts look to the
In Csomos v. Venetian Casino Resort, LLC, 381 P.3d 605, *3 (Nev. 2012) (Table), the Nevada Supreme Court found that
Also, in Rite of Passage v. Nevada Department of Business and Industry, No. 66388, 2015 WL 9484735, at *1 (Nev. Dec. 23, 2015), the Nevada Supreme Court considered the meaning of the term “work” in
I recognize that, pursuant to Nevada‘s Rules of Court, unpublished Nevada Supreme Court opinions do not establish mandatory precedent, Nev. R. App. P. 36(2), and that a party could not even cite Csomos or Rite of Passage for its persuasive value, id. at 36(3). But given that this court is not a “party,” and therefore not strictly subject to that limitation, and that our peculiar task is to anticipate or predict the Nevada Supreme Court‘s opinion “by looking to all the available data,” see Vance, 852 F.3d at 610, these cases—or at least the underlying support and reasoning therein, even without their explicit holdings—are certainly informative. Regardless, even ignoring them, Terry is likely sufficient on its own to establish that the Nevada Supreme Court would follow the FLSA on this issue rather than differentiate it.
For these reasons, I respectfully dissent from the majority‘s decision as to the Nevada law claims and would instead affirm the judgment of the district court in its entirety.
Notes
The district court dismissed all of Plaintiffs’ Nevada wage claims on the grounds that they were noncompensable under the