Neal Heimbach v. Amazon.comNeal Heimbach v. Amazon.com
GRIFFIN, Circuit Judge:
In Integrity Staffing Solutions, Inc. v. Busk (“Busk I”), 574 U.S. 27 (2014), the Supreme Court held that post-shift security screening is a noncompensable postliminary activity under the Fair Labor Standards Act (“FLSA“),
Now, plaintiffs move to certify a question of law to the Pennsylvania Supreme Court. We find that certification is warranted and hereby grant plaintiffs’ motion. Additionally, we certify a second question regarding the issue of defendants’ de minimis defense. Both questions are presented in Section IV of this order. For the reasons discussed below, we respectfully request the assistance of the Pennsylvania Supreme Court regarding these issues.
I.
The relevant facts are not in dispute. Plaintiffs worked at Amazon‘s1 “logistics facility/fulfillment center” located in a large warehouse in Breinigsville, Pennsylvania. Plaintiff Heimbach worked for Amazon while Salasky worked for Integrity Staffing Solutions. Amazon and Integrity “separately employ[ed] hundreds of hourly workers at the Facility.” The workers’ duties included “receiving deliveries of merchandise, transporting merchandise to its appropriate
Hourly employees clocked in and out on time clocks at the beginning and end of their shifts, respectively. After clocking out at the end of their shifts, employees were required to undergo antitheft security screening, which included metal detectors, searches of bags and other personal items, and “a secondary screening process if the metal detector‘s alarm sound[ed].” While plaintiffs and defendants disagree as to the amount of time this screening took on average, no party disputes that defendants did not compensate their employees for the time it took to wait in line for and undergo these security screenings.
Plaintiff Heimbach filed a putative class action suit in the Philadelphia County Court of Common Pleas, pleading a single count under the PMWA. The first amended complaint in state court added Salasky as a plaintiff. Defendants removed the case to the United States District Court for the Eastern District of Pennsylvania because it satisfied the jurisdictional requirements of the Class Action Fairness Act. See
Following discovery, plaintiffs moved for class certification and defendants moved for summary judgment. The district court granted summary judgment in favor of defendants and denied the class certification motion as moot. Heimbach v. Amazon.com, Inc., No. 3:14-CV-204-DJH, 2018 WL 4148856, at *4 (W.D. Ky. Aug. 30, 2018). In Busk I, the Supreme Court held that “employees’ time spent waiting to undergo and undergoing . . . security screenings” is not compensable under the FLSA, as amended by the Portal Act. 574 U.S. at 29. Here, the district court noted that “Pennsylvania and federal courts have used FLSA law for interpretative guidance” where its provisions have mirrored those in the PMWA, and that “the state and federal definitions of compensable time are similar to each other.” Heimbach, 2018 WL 4148856, at *2 (citation omitted). The court “conclude[d] that it is proper to consider the Portal-to-Portal Act amendments, and the Supreme Court‘s interpretation thereof, in construing and applying the PMWA.” Id. at *3 (footnote omitted). After doing so, the district court granted defendants’
II.
Whether to certify a question of law is within this court‘s “sound discretion.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). “Resort to the certification procedure is most appropriate when the question is new and state law is unsettled.” Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir. 1995) (citations omitted). We “generally will not trouble our sister state courts every time an arguably unsettled question of state law comes across our desks. When we see a reasonably clear and principled course, we will seek to follow it ourselves.” Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009) (citation and internal quotation marks omitted). In appropriate cases, however, certification “save[s] time, energy, and resources and helps build a cooperative judicial federalism.” Lehman Bros., 416 U.S. at 391 (footnote omitted).
In Vance, we denied the plaintiffs’ motion to certify to the Kentucky Supreme Court the question of “whether the [Kentucky Wages and Hours Act] incorporates the Portal-to-Portal Act.” 852 F.3d at 607–08. Two critical facts distinguish this case, however. First, the plaintiffs in Vance did not timely request certification. Id. at 608. Instead, they waited until they had already lost below. Id. at 607–08. “[T]he appropriate time to request certification of a state-law issue is before, not after, the district court has resolved [it]. [O]therwise, the initial federal court decision will be nothing but a gamble with certification sought only after an adverse decision.” Id. at 607 (second and third alteration in original) (citations and internal quotation marks omitted). Here, plaintiffs did not have the option of asking the district court to certify a question because the Pennsylvania Supreme Court accepts certified questions only from the Supreme Court of the United States and the federal courts of appeals.
Second, certification by a federal court of appeals may be particularly appropriate where the law at issue is from “a distant State” outside of the circuit presented with the question. Lehman Bros., 416 U.S. at 391. For example, “[w]hen federal judges in New York attempt to predict uncertain Florida law, they act . . . as ‘outsiders’ lacking the common exposure to local law which comes from sitting in the jurisdiction.” Id. Similarly, we are less familiar with Pennsylvania law than Kentucky law, which we encounter on a regular basis. These practical considerations militate in favor of certification.
III.
Pennsylvania Rule of Appellate Procedure 3341 governs certification of questions of law from federal courts. Three elements are required to warrant certification. First, “all facts material to the question of law to be determined” must be undisputed.
(1) The question of law is one of first impression and is of such substantial public importance as to require prompt and definitive resolution by the Supreme Court;
(2) The question of law is one with respect to which there are conflicting decisions in other courts; or
(3) The question of law concerns an unsettled issue of the constitutionality, construction, or application of a statute of this Commonwealth.
A.
We begin by analyzing these elements with respect to the Portal Act issue. The first two are easily satisfied. The parties agree on the material facts of this case and this court has not previously decided whether the PMWA incorporated the Portal Act. As for the “special and important reasons,” all three enumerated factors support certification.
In Caiarelli v. Sears, Roebuck & Co., 46 A.3d 643, 644 (Pa. 2012), the Pennsylvania Supreme Court dismissed without comment an appeal as having been improvidently granted, but two justices dissented from that dismissal. In a separate writing, Justice McCaffery (joined by Justice Todd) asserted that “[t]he Pennsylvania General Assembly has not in any way adopted the federal Portal to Portal Act.” Id. at 648 (McCaffery, J., dissenting). But this dissent by two justices obviously does not constitute a precedential opinion of the Pennsylvania Supreme Court. See Commonwealth v. Kyle, 874 A.2d 12, 20 (Pa. 2005) (explaining that a previous holding “was not endorsed by a majority of the Court and lacks precedential status“). Thus, the issue raised here is one of first impression.3
Defendants argue that resolving this issue would be of little public importance because, “[a]ccording to Plaintiffs, ‘almost no Pennsylvania employers . . . require their employers [sic] to go through an airport-style, anti-theft screening process at the end of every shift.‘” But answering
Conflicting decisions in other courts. Plaintiffs argue that the district court‘s decision here “directly conflicts with a recent opinion issued by the Pennsylvania Court of Common Pleas.” In Bonds v. GMS Mine Repair & Maintenance, Inc., No. 2:13-CV-1217, 2015 WL 5602607, at *1–3 (W.D. Pa. Sept. 23, 2015), a group of mine workers sued their employer in federal district court, alleging FLSA and PMWA violations, among others. The district court granted summary judgment in favor of the employer with respect to the FLSA claims, relying on the Portal Act and Busk I. Id. at *9–12. It declined to exercise supplemental jurisdiction over the state-law claims, however, quoting the Caiarelli dissent‘s statement that “[t]he Pennsylvania General Assembly has not in any way adopted the federal Portal to Portal Act.” Id. at *11 (citation omitted). The plaintiffs then brought their state-law claims in state court, where the employer reasserted its argument that the “pre- and post-shift activities outlined in the pleadings do not meet the standard of ‘integral and indispensable duties‘” described in Busk I. Bonds v. GMS Mine Repair & Maint., No. 2015-6310, 2017 Pa. Dist. & Cnty. Dec. LEXIS 10622, at *10 (Pa. Com. Pl., Wash. Cty. Dec. 12, 2017). The court disagreed:
[Busk I] ultimately has no impact on Plaintiffs’ MWA claim. As previously stated, the law in Pennsylvania provides greater protection for employees than the federal law, and Pennsylvania has refused to adopt the FLSA. The standard set forth in [Busk I] is inapplicable to Plaintiffs’ state law claims, therefore Defendant‘s Motion for Summary Judgement is DENIED.
Defendants are quick to point out that the plaintiffs in Bonds sought compensation for time spent in “pre- and post-shift safety meetings,” not security screenings. Id. at *7. For this reason, defendants assert that “[p]laintiffs’ argument misfires because ‘[t]he question of law’ they want certified was not decided in the Bonds case.” Given plaintiffs’ narrow wording of the question they propose certifying in their motion, this is technically correct. But the two decisions are nevertheless irreconcilable in a broader respect: one holds that Busk I and the
In Smith v. Allegheny Technologies, Inc., the Third Circuit stated that “Pennsylvania has not enacted the Portal-to-Portal Act, and Pennsylvania law requires compensation for a broader range of activities, including travel time, than the FLSA.” 754 F. App‘x 136, 141 (3d Cir. 2018) (citations omitted). Accordingly, the court found that “[n]either the principal activity nor the integral or indispensable test applies here.” Id. This decision, while not from a Pennsylvania court, does come from a court with much more expertise on Pennsylvania law than ours. And it conflicts with the district court‘s decision here in the same way as Bonds.
Unsettled Issue Involving a Pennsylvania Statute. This factor‘s application is more straightforward. The parties agree that the issue in this case concerns a Pennsylvania statute: the PMWA. And, as discussed above, the issue is unsettled. The PMWA‘s constitutionality is not questioned here, but its construction (whether it incorporates the Portal Act) and application (how it applies to plaintiffs’ security-screening claims) are. Thus, this factor weighs in favor of certification as well.
B.
In both the district court and on appeal, defendants have advanced an alternative argument that the security screening time at issue is noncompensable under “the doctrine de
Like the Portal Act issue discussed above, the material facts here are not in dispute and our court has never considered whether the de minimis doctrine may apply to PMWA claims. See
This lack of precedent means that there are no “conflicting decisions in other courts” on this issue,
IV.
For the reasons discussed above, we certify the following two questions to the Pennsylvania Supreme Court:
(1) Is time spent on an employer‘s premises waiting to undergo and undergoing mandatory security screening compensable as “hours worked” within the meaning of the Pennsylvania Minimum Wage Act,
43 Pa. Cons. Stat. § 333.101 et seq.?(2) Does the doctrine of de minimis non curat lex, as described in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) and Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014), apply to bar claims brought under the Pennsylvania Minimum Wage Act,
43 Pa. Cons. Stat. § 333.101 et seq.?
Our phrasing of the questions is not intended to restrict the Pennsylvania Supreme Court‘s consideration of the issues involved. For purposes of filing subsequent pleadings in the Pennsylvania Supreme Court, we recommend that Plaintiffs-Appellants Heimbach and Salasky be designated as Appellants and that Defendants-Appellees Amazon and Integrity be designated as Appellees. See
The clerk is directed to attach to this order plaintiffs’ motion to certify, defendants’ response thereto, and the parties’ merits briefs. See
We retain jurisdiction pending resolution of this certification.
It is so ordered.
BY THE COURT
/s/ Richard A. Griffin
Circuit Judge