CLINTON ROBERTS, et al. v. STATE OF ARIZONA
No. 1 CA-CV 20-0060
ARIZONA COURT OF APPEALS DIVISION ONE
FILED 3-2-2021
Appeal from the Superior Court in Maricopa County No. CV2019-005879 The Honorable Teresa A. Sanders, Judge REVERSED AND REMANDED
COUNSEL
Napier, Coury & Baillie, P.C., Phoenix By Michael Napier, Juliana B. Tallone Counsel for Plaintiffs/Appellants
Arizona Attorney General‘s Office, Phoenix By Kirstin Story, John Fry Counsel for Defendant/Appellee
OPINION
Judge Lawrence F. Winthrop delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Chief Judge Peter B.
WINTHROP, Judge:
¶1 Clinton Roberts and Donna Christopher-Hall, on behalf of themselves and other similarly situated corrections officers (“the Officers“), filed a complaint alleging their employer, the State of Arizona, violated
FACTS AND PROCEDURAL HISTORY
¶2 The Officers work for the Arizona Department of Corrections. Before they begin a shift, they are required to undergo an “extensive security screening” that adds an average of thirty minutes to each eight-hour workday. The Officers allege
¶3 The State moved to dismiss the complaint, arguing that claims for overtime pay must be brought under the FLSA, which the
¶4 The superior court granted the motion to dismiss, finding that although federal law did not preempt the Officers’ claim, Arizona had implicitly adopted the Portal Act. The court concluded, based on the Portal Act, the applicable regulations, and the Supreme Court decision in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014), that the time the Officers spend in security screenings is not compensable. The court denied the Officers’ motion to file a second amended complaint and motion for reconsideration. The Officers filed a timely notice of appeal, and we have jurisdiction under
ANALYSIS
¶5 The dismissal of a complaint under
I. Preemption
¶6 Under the FLSA, employers must pay employees a minimum wage and overtime compensation for each hour worked in excess of forty hours in one workweek.
¶7 The superior court rejected the State‘s contention that the FLSA preempted the Officers’ claims under
¶8 A cross-appeal is not necessary if an “appellee in its brief seeks only to support or defend and uphold the judgment of the lower court from which the opposing party appeals.” CNL Hotels & Resorts, Inc. v. Maricopa Cnty., 230 Ariz. 21, 25, ¶ 20 (2012) (quoting Maricopa Cnty. v. Corp. Comm‘n, 79 Ariz. 307, 310 (1955)). If successful, the State‘s preemption argument would constitute an alternative ground on which this court could affirm the judgment from which the Officers appeal. Further, the State made the same preemption argument in its motion to dismiss that it raises now. Thus, the issue of preemption is properly before this court without
¶9 Federal preemption can be express or implied. Id. at ¶ 8. In determining whether a federal statute preempts a state claim, “[c]ongressional intent is the touchstone.” Id. at ¶ 7 (citing Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992)). “There is a presumption against preemption, based on ‘the assumption that the historic police powers of the States were not to be superseded . . . unless that was the clear and manifest purpose of Congress . . . .‘” Id. (quoting Wyeth v. Levine, 555 U.S. 555, 565 (2009)).
¶10 Under the theory of implied preemption, a claim may be preempted “where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988) (quoting Cal. Coastal Comm‘n v. Granite Rock Co., 480 U.S. 572, 581 (1987)). The purpose of the FLSA is to provide minimum protection to workers from “substandard wages and oppressive working hours.” Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1150 (9th Cir. 2000) (quoting Adair v. City of Kirkland, 185 F.3d 1055, 1059 (9th Cir. 1999)). The purpose of
¶11 In its argument, the State relies on Williamson v. General Dynamics Corp., which held that “[c]laims that are directly covered by the FLSA (such as overtime and retaliation disputes) must be brought under the FLSA.” 208 F.3d at 1154. However, this statement fails to support the State‘s contention that the FLSA preempts a state overtime claim under
¶12 In Williamson, employees sued in California state court, alleging a state claim for “career fraud” by their employer. Id. at 1147-48. The employer removed the case to federal court on diversity grounds, and the district court ruled the FLSA preempted the state fraud claims. Id. at 1148-49, 1151. The Ninth Circuit disagreed, holding the state claims were not preempted because they did not conflict with the purpose of the FLSA. Id. at 1153-54. The court contrasted the employees’ “career fraud” claims with claims for overtime, which would be preempted but which they had abandoned on appeal. Id.
¶13 The Arizona district court reached the same conclusion in Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 923-24 (D. Ariz. 2010). In Colson, the plaintiff brought FLSA claims and sought treble damages under Arizona‘s wage law, arguing that by failing to comply with the overtime provisions in the FLSA, the employer violated
¶14 In determining that the FLSA preempted the state wage claim, the Colson court adopted the reasoning in Wood v. TriVita, Inc., CV-08-0765-PHX-SRB, 2008 WL 6566637, at *3-4 (D. Ariz. Sept. 18, 2008), another Arizona district court case addressing whether the FLSA preempts a claim brought under Arizona‘s wage laws. Colson, 687 F. Supp. 2d at 923-24. Both cases held that “overtime claims that are directly covered by the FLSA must be brought under the FLSA.” Id. at 924 (quoting Wood, 2008 WL 6566637, at *4). Allowing such claims would “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the FLSA.” Id. (quoting Wood, 2008 WL 6566637, at *4); see also Anderson v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir. 2007) (“Congress prescribed exclusive remedies in the FLSA for violations of its mandates.“).
¶15 These cases do not apply here because in each case, the plaintiffs relied on the
¶16 The weight of authority holds that the FLSA does not preempt a claim to enforce a more favorable state minimum wage or overtime law. See Knepper, 675 F.3d at 262-63; Overnite Transp. Co. v. Tianti, 926 F.2d 220, 222 (2d Cir. 1991) (citing cases); Tegtmeier v. PJ Iowa, L.C., 189 F. Supp. 3d 811, 820-23 (S.D. Iowa 2016); Butler v. DirectSat USA, LLC, 800 F. Supp. 2d 662, 671-72 (D. Md. 2011).
¶17 Accordingly, we hold the FLSA does not preempt the Officers’ state law claims for overtime compensation.
II. The Portal Act and Arizona Law
¶18 In deciding the time spent in mandatory security screenings is not a compensable activity, the superior court concluded that Arizona has “implicitly adopted” the Portal Act as the law of Arizona because (1)
¶19 Section 23-392(A) provides that law enforcement officers, including corrections officers, shall be paid overtime for work in excess of forty hours a week “if by the person‘s job classification overtime compensation is mandated by federal law.” When interpreting a statute, our objective is to “effectuate the legislature‘s intent,” and the “best indicator of that intent is the statute‘s plain language.” SolarCity Corp. v. Ariz. Dep‘t of Revenue, 243 Ariz. 477, 480, ¶ 8 (2018).
¶20 The Officers contend the phrase “is mandated by federal law” relates to whether a person‘s job classification entitles them to overtime, i.e., whether they are considered exempt under federal law. See
¶21 This interpretation of the Arizona statute is also consistent with the Arizona Administrative Code regulations that apply
¶22 The Officers argue that because
¶23 The Officers argue the Arizona regulations are not decisive; they contend that any decision to adopt the Portal Act is for the legislature, not an administrative agency. But this argument fails to recognize that the Arizona Legislature amended
¶24 Moreover, the legislature explicitly authorized the director of the Department of Administration to adopt rules and procedures regarding the administration of state personnel.
¶25 The federal regulations provide comprehensive guidance in interpreting the FLSA, as amended by the Portal Act. Although
¶26 Finally, the Officers argue that we should follow In re Amazon.com, 905 F.3d 387, 404-05 (6th Cir. 2018), which concluded that Arizona law was inconsistent with the Portal Act because
¶27 We conclude that, under
III. Compensable Activities
¶28 The FLSA requires an employer to pay overtime compensation for all work in excess of forty hours in a workweek.
(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.
¶29 Since enactment of the Portal Act, the Supreme Court “has consistently interpreted ‘the term “principal activity or activities” [to] embrac[e] all activities which are an “integral and indispensable part of the principal activities.“‘” Busk, 574 U.S. at 33 (quoting IBP, Inc. v. Alvarez, 546 U.S. 21, 29-30 (2005) (quoting Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956))). An activity is “integral and indispensable to the principal activities that an employee 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.” Id.
¶30 In Busk, the Court considered the compensability of time that retail warehouse employees spent waiting to undergo and undergoing mandatory security screenings at the end of each shift. Id. at 29. The Court compared the activities of employees in several other cases. The Court cited Steiner, which considered “the time battery-plant employees spent showering and changing clothes because the chemicals in the plant were ‘toxic to human beings’ and the employer conceded” these activities were indispensable and integral to the employees’ “productive work.” Id. at 34 (quoting Steiner, 350 U.S. at 249, 251). The Court also cited Mitchell v. King Packing Co., 350 U.S. 260 (1956), which concluded that the time meatpacking employees spent sharpening their knives was compensable because dull knives would be detrimental to production and product quality, “‘cause waste,’ and lead to ‘accidents.‘” Busk, 574 U.S. at 34 (quoting King Packing Co., 350 U.S. at 262).
¶31 Conversely, the “time poultry-plant employees spent waiting to don protective gear” was not compensable because “waiting was ‘two steps removed from the productive activity on the assembly line.‘” Id. at 42 (emphasis added) (quoting IBP, 546 U.S. at 42).4 Busk noted that the federal regulations are consistent with these cases, highlighting one regulation example that explains if changing clothes is a mere convenience and
¶32 The State contends this case is controlled by Busk, which held the retail workers’ post-shift security screenings were not compensable. Id. at 35. That Busk involved security screenings is not dispositive. The appropriate analysis focuses on the work the employee is hired to perform, which in Busk was primarily retrieving retail products and packaging them for shipment. Id. The test is not simply whether an employer requires the activity; that would be inconsistent with the Portal Act and overly broad. Id. at 36. Rather, the test for compensability is whether the activity is “one with which the employee cannot dispense if he is to perform his principal activities.” Id. at 33. The Court in Busk concluded that a security screening at the end of each shift was not integral or indispensable to the warehouse workers’ principal activities. Id. at 37. Applying the same analysis, we must consider the Officers’ principal activities.
¶33 The first amended complaint does not describe the principal activities that corrections officers are employed to perform. While it is technically accurate that the Officers are not employed to undergo security screenings, see id. at 35, the first amended complaint alleges that the mission of the Department of Corrections is to operate secure and orderly prisons and that preventing the introduction of contraband furthers that mission. It is reasonable to infer that the Officers’ duties include maintaining the safety and security of the prisons. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008) (holding that on a motion to dismiss, courts must indulge all reasonable inferences from the well-pled factual allegations in a complaint).
¶34 In considering whether the security screenings are integral to the Officers’ principal activities, we are persuaded by Aguilar v. Management & Training Corp., 948 F.3d 1270 (10th Cir. 2020), which held that the time corrections officers spent undergoing pre-shift security screenings was compensable. The employer in Aguilar required the screenings “to ensure ‘the overall safety of the prison’ and to prevent officers from inadvertently or intentionally bringing contraband like weapons or cell phones into the prison.” Id. The court distinguished the post-shift theft-prevention screening at issue in Busk because it had “no connection at all” to the work the warehouse employees performed. Id. at 1277-78.
¶35 Like the security screenings in Aguilar, the pre-shift security screenings here are inherently related to the Officers’ work of providing a secure prison and preventing the introduction of contraband. “Indeed, the security screening and the officers’ work share the same purpose.” Id. at 1278.
¶36 The State contends that because the Officers could perform their work without undergoing the security screening, the screenings are not indispensable to their work. We disagree. The same could be said about the meat packing employees who had to sharpen their knives in King Packing Co., 350 U.S. at 262, and the chemical plant employees who spent time showering and changing out of toxic clothing in Steiner, 350 U.S. at 248-49. The screenings are indispensable to the Officers’ “productive work.” See id. at 251. Accordingly, eliminating the screenings would impair the Officers’ ability to perform this work. See Busk, 574 U.S. at 35; id. at 37-38 (Sotomayor, J., concurring) (“[A]n activity is ‘indispensable’ to another, principal activity only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively.” (emphasis added)); see also Aguilar, 948 F.3d at 1279.
¶37 The security screening process is integral and indispensable to the Officers’ principal, compensable activities of maintaining safe and secure prisons; therefore, the screenings constitute the start of the Officers’ workday. See Aguilar, 948 F.3d at 1279 (citing IBP, 546 U.S. at 28).5
CONCLUSION
¶38 We reverse the order dismissing the complaint and remand for further proceedings consistent with this decision. The Officers are entitled to taxable costs on appeal under
AMY M. WOOD • Clerk of the Court FILED: AA