CLINTON ROBERTS, ET AL. v. STATE OF ARIZONA
No. CV-21-0077-PR
SUPREME COURT OF THE STATE OF ARIZONA
July 8, 2022
Appeal from the Superior Court in Maricopa County, The Honorable Teresa A. Sanders, Judge, No. CV2019-005879. REVERSED AND REMANDED. Opinion of the Court of Appeals, Division One, 250 Ariz. 590 (App. 2021). VACATED
COUNSEL:
Michael Napier (argued), Cassidy L. Bacon, Juliana Tallone, Napier, Baillie, Wilson Bacon & Tallone P.C., Phoenix, Attorneys for Clinton Roberts and Donna Christopher-Hall
Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Wilson C. Freeman (argued), Senior Litigation Counsel, Drew C. Ensign, Section Chief, Civil Appeals, Kirstin Story, and Daniel P. Schaack, Assistant Attorneys General, Phoenix, Attorneys for State of Arizona
Aditya Dynar, Pacific Legal Foundation, Arlington, VA, Attorney for Amicus Curiae Pacific Legal Foundation
JUSTICE BOLICK authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER and JUSTICES LOPEZ, BEENE, MONTGOMERY, KING, and PELANDER (Retired) joined.*
¶1 This case presents the question of whether the State of Arizona has incorporated the Portal-to-Portal Act,
I.
¶2 Plaintiffs are corrections officers (“the Officers“) who brought a class action against the State for compensation that was allegedly denied by the Arizona Department of Corrections, Rehabilitation & Reentry for time spent in mandatory and “extensive security screening prior to undertaking their assigned duties.” The complaint alleges the following facts: The Officers must wait in line at checkpoints for screenings before gaining access to prison facilities. During the screenings, the Officers must empty all personal possessions for a search and pass through a scanner and turnstile. The Officers must then wait for transportation to their assigned work unit, where the same screening process is repeated. After completing this second pre-shift screening, the Officers work a full eight-hour shift without breaks. The Officers allege these screenings add approximately thirty minutes of unpaid, mandatory time to their shifts.
* Chief Justice Brutinel is recused from this matter. Pursuant to
¶3 In the superior court, the Officers alleged that
¶4 The Officers denied that the FLSA preempts state law. They also argued that the Portal Act has not been incorporated into Arizona law either by statute or regulation, that the claims are compensable under state law because of Arizona‘s broad interpretation of “work,” and that they are entitled to overtime compensation even if the Portal Act applies.
¶5 The trial court granted the State‘s motion to dismiss. The court concluded that federal law did not preempt the Officers’ claims, but that Arizona had adopted the
¶6 The court of appeals reversed and held that the Officers’ claims were not preempted by the FLSA, Roberts v. State, 250 Ariz. 590, 595 ¶ 17 (App. 2021), that the Portal Act was incorporated in Arizona through
¶7 We granted review on whether, under federal law as incorporated in Arizona, corrections officers must be compensated for time spent in pre-shift security screenings. Because this issue assumed that Arizona law incorporated federal law, following oral argument, we invited further supplemental briefing on the following issues: (1) Whether, and to what extent, has the Portal Act been incorporated into
¶8 Although the State has abandoned its argument below that the FLSA preempts state law regarding the definition of work and eligibility for overtime, it maintains (as the court of appeals held) that
II.
¶9 The FLSA was adopted in 1938. Six years later, the United States Supreme Court addressed whether activities that are not part of the job, but are still required by the employer, count as compensable work under the FLSA. Tenn. Coal, Iron & R.R. Co. v. Muscoda Loc. No. 123, 321 U.S. 590, 593–94 (1944). The Court held that compulsory travel within a mine to reach the job site could qualify as work because it “is at all times under [the employer‘s] strict control and supervision,” and “is not primarily undertaken for the convenience of the miners” but “is spent for the benefit of” the employer. Id. at 598–99.
¶10 Congress narrowed the impact of Tennessee Coal in 1947 by adding the Portal Act to the FLSA, providing among other things that employers are not required to pay overtime compensation to nonexempt employees for “activities which are preliminary to or postliminary to [the] principal activity or activities” that they are employed to perform.
¶11 The leading recent case construing this provision of the Portal Act is Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014). In determining what constitutes a “principal activity” under
¶13 Arizona adopted
Any person engaged in law enforcement activities shall be compensated, for each hour worked in excess of forty hours in one work week, at the option of such employer either at a rate of:
- One and one-half times the regular rate at which he is employed; or
- One hour of compensatory time off in lieu of cash payment.
¶14 In 1984, the Arizona Court of Appeals decided Prendergast v. City of Tempe, 143 Ariz. 14, 20–21 (App. 1984), holding that meal periods for certain officers constituted compensable work. The court observed that
¶15 In 1986, two years after Prendergast, the legislature amended
- One and one-half times the regular rate at which such person is employed or one and one-half hours of compensatory time off for each hour worked if by the person‘s job classification overtime compensation is mandated by federal law.
- If by the person‘s job classification federal law does not mandate overtime compensation, the person shall receive the regular rate of pay or compensatory leave on an hour for hour basis.
1986 Ariz. Sess. Laws ch. 218, § 2 (2nd Reg. Sess.). The statute has been amended eight times since 1986, but the language at issue here—“if by the person‘s job classification overtime compensation is mandated by federal law“—remains unchanged, and no further references to federal law have been added.
¶16 The year after this legislative change, the Attorney General concluded that the Arizona Legislature had not incorporated
¶17 In 2012, the legislature enacted
¶18 The court of appeals here, having decided that state law incorporates the Portal Act, applied Aguilar to the facts of this case and concluded that pre-shift security screenings are compensable. Roberts, 250 Ariz. at 597–99 ¶¶ 28–37. For the reasons explained hereafter, we conclude that Arizona law does not incorporate the Portal Act and that whether the pre-shift security screenings at issue here are compensable should be decided as a matter of state law. We therefore need not resolve the correct outcome under federal law.
III.
A.
¶19 The parties agree that the meaning of the statutory language—“if by the person‘s job classification overtime compensation is mandated by federal law,”
¶20 The State effectively defeats its own argument by acknowledging that
¶21 This seminal rule of statutory interpretation applies here with special force. We will not lightly divine legislative intent to displace state law with sweeping and prescriptive federal statutory law and administrative regulations. The State argues that the statute evinces no intent to “diverge from the prevailing federal understanding on preliminary activities.” But in our system of federalism, we do not start with federal law and apply it unless the legislature manifests a contrary intent; rather, we presume that state law prevails unless we find a manifest intent to adopt federal law. Cf. Varela v. FCA US LLC, 252 Ariz. 451, 457 ¶¶ 1-2 (2022) (noting there is no federal preemption under the Supremacy Clause of the United States Constitution when there is no conflict between a properly enacted state and federal law).
¶22 Section 23-392(A) does not expressly manifest a legislative intent to incorporate the entirety of the FLSA, including the Portal Act and implementing regulations, into Arizona law. To the contrary, the plain language contains a mere reference to federal law, establishing under state law that eligibility for overtime compensation depends on whether “by the person‘s job classification overtime compensation is mandated by federal law.”
¶23 For its broader view of the applicability of federal law, the court of appeals focused on the words from
¶24 In the specific context of corrections officers, we agree with the Officers that the slice of federal law referred to in
¶25 The historical sequence supports this interpretation in the context of overtime compensation for corrections officers. In its 1984 decision in Prendergast, the court of appeals noted that the legislature had not incorporated
¶26 Nor does the overall statutory context suggest a different result. The limited reference to “if by the person‘s job classification overtime compensation is mandated by federal law” in
B.
¶27 As we conclude that the statute at issue does not incorporate the entirety of the FLSA, or more specifically the Portal Act, we must determine whether the pertinent AZDOA rules, as they relate to overtime compensation for law enforcement officers, are consistent with our state constitution‘s
¶28 The Arizona Constitution embraced the concept of separation of powers embodied in its federal counterpart. At the federal level, separation of powers among the three branches of government is not explicit but rather implicit in the constitutional structure. See, e.g., Miller v. French, 530 U.S. 327, 341 (2000); see also Nat‘l Fed‘n of Indep. Bus. v. Sebelius, 567 U.S. 519, 707 (2012) (Scalia, J., dissenting) (“The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.“).
¶29 Separation of powers limits both the power that may be delegated and the method by which it is delegated from the legislative branch to the executive. As Justice John Marshall stated, there are some “important subjects, which must be entirely regulated by the legislature itself” and others “of less interest, in which a general provision may be made, and power given to [others] to fill up the details.” Wayman v. Southard, 23 U.S. 1, 20 (1825). “The true distinction ... is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” Marshall Field & Co. v. Clark, 143 U.S. 649, 693–94 (1892) (citation omitted).
¶30 Thus, the Supreme Court limits the exercise of legislative power by the executive branch on major policy questions to instances where a statute “plainly authorizes” executive agency action. Nat‘l Fed‘n of Indep. Bus. v. Dep‘t of Lab. (NFIB v. OSHA), 142 S. Ct. 661, 665 (2022), (invalidating emergency agency standards governing employer conduct). This doctrine “guard[s] against unintentional, oblique, or otherwise unlikely delegations of the legislative power.” Id. at 669 (Gorsuch, J., concurring).
¶31 The Supreme Court recently instructed that, given this standard, the judicial inquiry “always begins (and often almost ends) with statutory interpretation. The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee‘s use of discretion. So the answer requires construing the ... statute to figure out what task it delegates and what instructions it provides.” Gundy v. United States, 139 S. Ct. 2116, 2123 (2019).
¶32 What the United States Constitution structurally implies, the Arizona Constitution makes explicit. Our constitution‘s framers devoted an entire article to separation of powers, comprised of a single command: “The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and ... no one of such departments shall exercise the powers properly belonging to either of the others.”
¶33 The article‘s plain language, conjoined with the separation of powers principles described above, establish the pertinent analytical framework: Is the power to define work (i.e., activities that constitute compensable work) by incorporating the FLSA and, more particularly, the Portal Act, properly exercised by an executive agency?
¶34 A unilateral exercise of legislative power by an executive agency violates separation of powers. See, e.g., Facilitec, Inc. v. Hibbs, 206 Ariz. 486, 488 ¶ 10 (2003). By contrast, the legislature may properly delegate power to implement a statute so long as it plainly authorizes the executive agency to do so. See, e.g., id.
¶35 The State, curiously, attaches great weight to this Court‘s decision in State v. Williams, 119 Ariz. 595, 598 (1978), which held that “[i]t is perfectly legitimate for the Legislature to adopt existing federal rules, regulations or statutes as the law of this state.” (Emphasis added.) That is entirely right, but it undermines
¶36 The State argues, and the trial court held, that AZDOA incorporated the FLSA, including the Portal Act and implementing regulations, into state law through its rulemaking power. We agree that AZDOA regulations purport to incorporate the FLSA regulations. But we hold that AZDOA was not legislatively authorized to incorporate the Portal Act for purposes of the Officers here. Absent explicit authorization by the legislature, it would violate our constitution‘s separation of powers for AZDOA to adopt the Portal Act for law enforcement officers, and no such authorization appears here. “[T]he scope of an agency‘s power is measured by statute and may not be expanded by agency fiat.” Saguaro Healing LLC v. State, 249 Ariz. 362, 365 ¶ 19 (2020); see also Facilitec, 206 Ariz. at 488 ¶ 10 (“An agency ... has no powers other than those the legislature has delegated to it . . . . Any excursion by an administrative body beyond the legislative guidelines is treated as an usurpation of constitutional powers vested only in the major branch of government.” (alteration in original) (citation omitted) (internal quotation marks omitted)).
¶37 Section 23-392(A) makes no express delegation of power to anyone. As described above, it merely incorporates a portion of federal law into state law. It is highly unlikely that the legislature would choose to bestow sweeping regulatory authority upon an agency in such an oblique and indirect fashion. See West Virginia v. EPA, No. 20-1530, slip op. at 18 (U.S. June 30, 2022) (“Extraordinary grants of regulatory authority are rarely accomplished through ‘modest words,’ ‘vague terms,’ or ‘subtle device[s].‘” (alteration in original) (citation omitted)); NFIB v. OSHA, 142 S. Ct. at 668 (Gorsuch, J., concurring) (opining that a “lone statutory subsection does not clearly authorize OSHA‘s mandate“).
¶38 In addition to
¶39 That very same year, AZDOA adopted
¶40 Despite the vast sweep of Parts 553 and 778, the State characterizes these regulations as merely an effort to “fill in the details” from
¶41 Here again, the State concedes the legislature has not expressly authorized AZDOA regulations but asserts that its failure to countermand the regulations since they were adopted amounts to “implicit ratification” of the regulations. The State contends that instead of the express delegation of legislative power that the constitution requires, an agency may unilaterally initiate what amounts to legislation that will stand unless the legislature takes positive action to erase it. This novel theory subverts the command that none of the branches of government “shall exercise the powers properly belonging to either of the others.”
¶42 Nor do we presume, as the State suggests, that the legislature is aware of all of the regulations adopted by the numerous state regulatory agencies and tacitly approves them if it does not take contrary action. Even in the realm of legislative acquiescence to judicial opinions, we require some indication that the legislature deliberately did not change the law in response to a judicial opinion. See, e.g., State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 133 ¶ 21 (2020) (stating a general reluctance to presume that legislative silence equates to legislative approval).
¶43 We conclude that the legislature did not incorporate the Portal Act into
¶44 AZDOA possesses only such powers as the legislature delegates to it, Facilitec, 206 Ariz. at 488 ¶ 10, and the legislature has not expressly granted it authority to incorporate the Portal Act for purposes of determining the definition of work to trigger overtime compensation requirements for law enforcement officers; therefore, AZDOA‘s regulations are not binding as to whether the Officers’ mandatory pre-shift screenings are work for which overtime compensation is required.
¶45 We do not here decide, as the question is not yet before us, whether the Prendergast definition of work remains operative, whether subsequent developments may have altered it, or whether any Arizona statutory provisions provide guidance on the meaning of work. The trial court should consider these issues on remand. All we decide today is that the definition of work is a matter of state law, that
IV.
¶46 The Officers request attorney fees under
¶47 We vacate the court of appeals’ opinion and reverse the trial court‘s dismissal of the action. We remand the case to the trial court for further proceedings.