Busk v. Integrity Staffing Solutions, Inc. (In Re Amazon.com, Inc.) , 905 F.3d 387 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0207p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: AMAZON.COM, INC., FULFILLMENT CENTER ┐
FAIR LABOR STANDARDS ACT (FLSA) AND WAGE AND │
HOUR LITIGATION. │
___________________________________________ │
│
JESSE BUSK; LAURIE CASTRO; SIERRA WILLIAMS; > Nos. 17-5784/5785
MONICA WILLIAMS; VERONICA HERNANDEZ, │
Plaintiffs-Appellants, │
v. │
│
│
INTEGRITY STAFFING SOLUTIONS, INC.; AMAZON.COM, │
INC., │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
Nos. 3:14-cv-00139; 3:14-md-02504—David J. Hale, District Judge.
Argued: June 14, 2018
Decided and Filed: September 19, 2018
Before: BATCHELDER and CLAY, Circuit Judges; SARGUS, District Judge.*
_________________
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,
*The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern District of
Ohio, sitting by designation.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 2
Arizona, for Appellee Integrity Staffing Solutions. Richard G. Rosenblatt, MORGAN, LEWIS
& BOCKIUS, LLP, Princeton, New Jersey, for Appellee Amazon.com.
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.)
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 3
This case concerns a security clearance policy that is enforced by both Integrity and
Amazon at all Amazon locations throughout the United States. Under the policy, Plaintiffs and
all other hourly paid, non-exempt employees were required to “undergo a daily security
clearance check at the end of each shift to discover and/or deter employee theft of the employer’s
property and to reduce inventory ‘shrinkage.’” (Id.) The policy worked like this: “At the end of
their respective shifts, hundreds, if not thousands, of warehouse employees would walk to the
timekeeping system to clock out and were then required to wait in line in order to be searched for
possible warehouse items taken without permission and/or other contraband.” (Id. at PageID
# 2352.) Plaintiffs allege that “Defendants’ policy of requiring hourly warehouse employees to
undergo a thorough security clearance before being released from work and permitted to leave
the employer’s property was solely for the benefit of the employers and their customers.” (Id. at
PageID # 2351.) Plaintiffs further allege that this screening process took approximately
25 minutes each day. Plaintiffs were also required to undergo the same security clearance prior
to taking their lunch breaks, thereby reducing the full thirty-minute break they were supposed to
receive. Because employees were required to “clock out” before undergoing the security
screening, they were not compensated for their time spent waiting in line for and then
undergoing the screenings. (Id. at PageID # 2351, 2352.)
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 Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and Nevada labor
laws. The employees alleged that they were entitled to compensation under the FLSA for the
time spent waiting to undergo and actually undergoing the security screenings. They also
alleged that the screenings were conducted “to prevent employee theft” and thus occurred “solely
for the benefit of the employers and/or their customers.” (R. 30-3, First Amended Compl.,
PageID # 223.)
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 FLSA. Busk v. Integrity Staffing Sols., Inc., No. 2:10-cv-01854, 2011
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 4
WL 2971265 (D. Nev. July 19, 2011). It explained that, because the screenings occurred after
the regular work shift, the employees could state a claim for compensation only if the screenings
were an integral and indispensable part of the principal activities they were employed to perform.
The district court held that these screenings were not integral and indispensable, but instead fell
into a noncompensable category of postliminary activities. As for Plaintiffs’ Nevada state law
claims for unpaid wages arising from the security checks and shortened meal periods, the
Nevada district court found that Plaintiffs had properly asserted a private cause of action under
Nev. Rev. Stat. § 608.140 but failed to allege sufficient facts to support their clam. Id. at *7.
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 FLSA. Integrity Staffing Solutions, Inc. v. Busk,
135 S. Ct. 513 (2014) (“Integrity Staffing”). Specifically, the Court found that the security
screenings were “noncompensable postliminary activities” under the Portal-to-Portal Act,
29 U.S.C. § 254(a)(2). Id. at 518. The Portal-to-Portal Act was enacted as an amendment to the
FLSA, and it “narrowed the coverage of the [Act]” by excluding certain “preliminary” and
“postliminary” activities from the FLSA’s compensation requirements. See IBP, Inc. v. Alvarez,
546 U.S. 21, 27 (2005). Integrity Staffing clarified that post-shift security screenings are among
those noncompensable, “postliminary” activities under federal law. 135 S. Ct. at 518.
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
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 5
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 (NRS § 608.016), daily and weekly overtime (NRS
§ 608.018), and a minimum wage claim under the Nevada Constitution (Nev. Const. art. 15,
§ 16). The Nevada plaintiffs seek continuation wages in the amount of 30-days of additional
wages for failing to pay employees all their wages due and owing at the time of separation from
employment (NRS § 608.020–.050). The Arizona plaintiffs allege claims on behalf of
themselves and the Arizona Class for failing to pay regular and minimum wages (A.R.S. § 23-
363). These Plaintiffs also seek continuation wages under A.R.S. § 23-353 et seq.
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 FLSA in relevant part and Plaintiffs’ Nevada state claims were barred by
Nevada’s incorporation of the Portal-to-Portal Act and the Supreme Court’s decision in Busk;
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 6
and third, Plaintiffs’ claims for minimum wages failed because they failed to identify any
workweek in which they were paid less than the minimum wage. The district court concluded
the same with respect to the Arizona claims, holding that Arizona impliedly adopted the Portal-
to-Portal Act and thus Plaintiffs “have not demonstrated that they are entitled to compensation
under Arizona law for time spent undergoing, or waiting to undergo, security screenings.” (R.
236, Order, PageID # 4702.) The court also concluded that Arizona minimum wage claims
failed because Plaintiffs had failed to identify a particular workweek in which they were paid
less than the minimum wage.
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 Nevada Revised
Statutes §§ 608.005–.195 in the absence of a contractual claim.” (R. 236, Order, PageID #
4694.)
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 7
Since briefing was completed in this case, the Nevada Supreme Court issued a decision in
Neville v. Eighth Jud. Dist. Ct., 406 P.3d 499 (Nev. 2017), which holds exactly the opposite. In
Neville, the court began its opinion thus: “In this opinion, we clarify that NRS 608.140 explicitly
recognizes a private cause of action for unpaid wages.” Id. at 500. And the court explained as
follows:
Because NRS 608.016, NRS 608.018, and NRS 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
to NRS 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 enacted NRS 608.140 to protect employees, and the legislative
scheme is consistent with private causes of action for unpaid wages under NRS
Chapter 608.
Id. at 504.
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
1In its brief on appeal, Defendants anticipated a decision in Neville and argued that even if the Nevada
Supreme Court went against them, nothing in that decision would support a private right of action for meal break
claims under NRS § 608.019. However, the Neville decision provides no basis for distinguishing claims brought
under § 608.019 from other claims brought under Chapter 608 for unpaid wages. Like claims under §§ 608.016,
608.018, and 608.020–.050, § 608.019 is also a claim for unpaid wages: if Plaintiffs were not provided a full half-
hour break, there was no interruption of a “continuous period of work” under the statute, and they must be
compensated for that time. Thus, we conclude that, under Neville, Plaintiffs have a private cause of action to
enforce their rights under § 609.019; hence, Defendants’ argument fails.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 8
B. Time spent undergoing security screenings is compensable under Nevada
and Arizona law
In Integrity Staffing, the Supreme Court held that the post-shift security screenings at
issue in this case were noncompensable postliminary activities under the Fair Labor Standards
Act, 29 U.S.C. § 201 et seq., as amended by the Portal-to-Portal Act, 29 U.S.C. § 251 et seq.
135 S. Ct. at 518–19. The main question on appeal in this case is whether Integrity Staffing
resolves similar claims brought under Nevada and Arizona law.
“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 Portal-to-Portal Act or whether time
spent undergoing mandatory security screening is compensable under the respective states’ wage
laws. Thus, since “‘the state supreme court has not yet addressed the issue,’ we render a
prediction ‘by looking to all the available data.’” Id. (quoting Allstate Ins. Co. v. Thrifty Rent-A-
Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001). Sources of relevant data include the decisions
(or dicta) of the state’s highest court in analogous cases, pronouncements from other state courts,
and regulatory guidance.
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 Portal-to-
Portal Act and the Supreme Court’s decision in Integrity Staffing as it was relevant to a case
arising out of the same multidistrict litigation as the instant case. The Court explained as
follows:
“Enacted in 1938, the FLSA established a minimum wage and overtime
compensation for each hour worked in excess of 40 hours in each workweek.”
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 9
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., ––– U.S. ––––,
134 S. Ct. 870, 875, 187 L. Ed. 2d 729 (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, 64 S. Ct. 698, 88 L. Ed.
949 (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, 546 U.S. at 25, 126 S. Ct. 514 (quoting Armour & Co. v. Wantock, 323 U.S.
126, 133, 65 S. Ct. 165, 89 L. Ed. 118 (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, 65 S. Ct. 165.
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, 66 S. Ct. 1187, 90 L. Ed. 1515 (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, 66 S. Ct. 1187) (ellipsis and brackets omitted). Per Anderson, these
preparatory efforts “‘are clearly work’ under the Act.” Id. (quoting Anderson,
328 U.S. at 693, 66 S. Ct. 1187).
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, 64 S. Ct. 698, and Anderson,
328 U.S. at 691–92, 66 S. Ct. 1187). 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
(quoting 29 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, 126 S. Ct. 514; see also Integrity Staffing, 135 S. Ct. at 516–
17 (detailing history). Under the Portal-to-Portal Act then, an employee’s
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 10
principal 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, 126 S. Ct. 514 (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.
852 F.3d at 608–09.
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.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 11
2. Interpreting Statutes 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.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 12
b. Arizona
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 Nev. Rev. Stat. §§ 608.016, 608.018, 608.140, 608.020–
.050, and the Nevada Constitution. They also brought claims under Ariz. Rev. Stat. § 23-363 et
seq., the statutory codification of the Raise the Arizona Minimum Wage for Arizonans Act, and
Ariz. Rev. Stat. § 23-353 et seq. Each of these claims turns on whether Plaintiffs were
uncompensated for some “work” they performed. See, e.g., NRS § 608.016 (“An employer shall
pay to the employee wages for each hour the employee works.”).
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).)
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 13
Thus, and perhaps unsurprisingly, the first step for this Court in determining whether
time spent undergoing mandatory security screenings is compensable is to determine whether
such time constitutes “work” under Nevada and Arizona state law.
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.” Nev. Admin. Code § 608.115(1).
However, the Nevada legislature has not defined what constitutes “work.” Thus, in this instance,
it is appropriate to look to the federal law for guidance. See Rivera, 735 F.3d 900-01; Terry, 336
P.3d 955–56. Under the FLSA, work is defined broadly as any activity “controlled or required
by the employer and pursued necessarily and primarily for the benefit of the employer and his
business.” Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 598 (1944);
see Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944).
Putting aside the Portal-to-Portal Act for a moment, time spent waiting in line and then
undergoing mandatory security screenings clearly seems to fit the federal definition of “work.”
The screenings surely are “required by the employer,” and Plaintiffs have alleged that the
screenings are “solely for the benefit of the employers and their customers.” (R. 134, Third
Amend. Compl., PageID # 2351.)
Nonetheless, Defendants put forth two arguments for why time spent undergoing
mandatory security screenings is not “work” under Nevada law: (1) the Portal-to-Portal Act
amended the FLSA to exclude postliminary activities from the federal definition of “work;” and
(2) for an activity to be considered work, it must involve “exertion” and Plaintiffs have not
alleged any exertion. We find neither argument persuasive.
First, Defendants misread what the Portal-to-Portal Act accomplished. Defendants argue
that it amended the Supreme Court’s definition of “work.” (See, e.g., Brief for Appellees at 12.)
(“Congress had swiftly disagreed with that Supreme Court holding and clarified that the term
‘work’ in the FLSA excluded, among others, preliminary and postliminary activities.”) But that
is not so.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 14
The Portal-to-Portal Act provides, in relevant part, as follows:
[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.
29 U.S.C. § 254(a); 29 C.F.R. § 785.50.
As we read this language, the Portal-to-Portal Act excludes certain work activities from
being compensable; it does not, however, redefine the Supreme Court’s earlier definitions of
“work.”2 This view finds some support in the Supreme Court’s decision in IBP, Inc., where it
explained:
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 29 C.F.R.
§ 785.7, which provides:
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
2Defendants, at least on some level, seem to recognize the intuitive appeal of this reading. Indeed, before
this Court they argue that “[t]he Portal-to-Portal Act and its exclusion of what otherwise might be considered ‘work’
under federal and state law is not even implicated in this case unless and until a determination is made that the
underlying activity at issue rises to the level of ‘work.’” (Brief for Appellees at 33.)
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 15
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.
29 C.F.R. § 785.7 (emphasis added).
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 Portal-to-Portal Act did not change
the Court’s longstanding definition of “work.” Instead, Integrity Staffing was solely concerned
with whether undergoing security screenings fell within the Portal-to-Portal Act’s exception for
“postliminary” activity; it did not opine on whether such activity constituted work. In short, the
Portal-to-Portal Act excludes some “work” from its bucket of what is compensable activity, but
that does not mean it is not “work.”
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 29 C.F.R. § 785.7.
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,
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 16
as this Court recognized in Vance, “[o]nly 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.’” Vance, 852 F.3d at 608 (quoting
IBP, Inc., 546 U.S. at 25.) It may “strain the bounds of reason to argue that the Supreme Court
in Armour somehow overruled Tennessee Coal (decided only 9 months earlier) without saying it
was doing so,” (Brief for Appellees at 34), but on this particular point, that is precisely what the
Supreme Court has recognized. See IBP, Inc., 546 U.S. at 25 (explaining that “[t]he same year
[as Tennesse Coal], in Armour & Co. v. Wantock . . . we clarified that ‘exertion’ was not in fact
necessary for an activity to constitute ‘work’ under the FLSA.”). Thus, “Appellants completely
ignore[d] this ‘physical or mental exertion’ requirement,” (Brief for Appellees at 33), because
there is no such requirement.
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
3Before proceeding to a discussion of Arizona law and whether the Portal-to-Portal Act applies to these
state claims, we can decide whether Plaintiffs state a claim under Nevada law based on their allegations that the
mandatory security screenings robbed them of their full lunch time. Plaintiffs alleged that the security screenings
that they were required to undergo before taking their lunch breaks resulted in them being “significantly delayed and
[] unable to take a full 30-minute uninterrupted lunch period.” (R. 134, Third Amend. Compl., PageID # 2352.)
Under Nevada law, “[a]n employer shall not employ an employee for a continuous period of 8 hours without
permitting the employee to have a meal period of at least one-half hour.” Nev. Rev. Stat § 608.019. The law further
provides that “no period of less than 30 minutes interrupts a continuous period for work for the purposes of this
subsection.” Id. Thus, because time spent undergoing the security screenings is “work,” the Nevada plaintiffs were
required to work during their lunch break; thus, they were not given an uninterrupted half-hour, and they should
have been paid for their lunch.
The district court dismissed all of Plaintiffs’ Nevada wage claims on the grounds that they were
noncompensable under the Portal-to-Portal Act. However, even if the Portal-to-Portal Act does apply to Nevada
wage claims generally, it does not apply to Plaintiffs’ claims relating to their pre-meal security screenings. This is
because “[a]s the statute’s use of the words ‘preliminary’ and ‘postliminary’ suggests, § 254(a)(2), and as our
precedents make clear, the Portal-to-Portal Act of 1947 is primarily concerned with defining the beginning and end
of the workday.” Integrity Staffing, 135 S. Ct. at 520 (Sotomayor, J., concurring) (citing IBP, Inc., 546 U.S. at 34-
37). On this reasoning, the Portal-to-Portal Act does not apply to claims that employees were uncompensated for
time spent during the workday. Therefore, if undergoing security screenings is “work” under Nevada law, then the
district court erred in dismissing the Nevada plaintiffs’ claims relating to their shortened meal-periods.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 17
b. Arizona
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 F.2d at 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.” Ariz. Admin.
Code R20-5-1202(19). “On duty,” in turn, means “time spent working or waiting that the
employer controls and that the employee is not permitted to use for the employee’s own
purpose.” Ariz. Admin. Code R20-5-1202(22).
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 Portal-to-Portal Act.
The district court dismissed both Plaintiffs’ Nevada statutory claims and Nevada
constitutional claims on the grounds that Nevada had adopted the Portal-to-Portal Act. It
concluded that Nevada had adopted the Portal-to-Portal Act because Plaintiffs were unable to
“identify any Nevada law that is irreconcilable with the Portal-to-Portal Act.” (R. 236, Order
PageID # 4695.) The district court reasoned that because Nevada and Arizona wage-hour
statutes do not define “work,” it must turn to the federal law for a determination of what is
“compensable work” and this included the Portal-to-Portal Act. But there is the error of the
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 18
district court’s analysis: it conflated two independent questions, which we have tried to separate:
(1) whether time spent undergoing mandatory security screenings is work, and (2) whether such
time is compensable.
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 Portal-to-Portal
Act to decide the compensability of certain activities. We agree. Absent any affirmative
indication that the Nevada legislature intended to adopt the Portal-to-Portal Act, there is no
reason to assume that it did.
As mentioned above, the Portal-to-Portal Act provides as follows:
[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.
29 U.S.C. § 254(a).
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.)
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 19
But Plaintiffs also identify several Nevada laws that they claim are “in direct conflict
with the Portal-to-Portal Act.” (Id. at 23.) For instance, NRS § 608.016 provides that “an
employer shall pay to the employee wages for each hour the employee works” and “[a]n
employer shall not require an employee to work without wages during a trial or break-in period.”
Pursuant to this section, Nevada’s administrative regulations further provide that “[a]n employer
shall pay an employee for 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.” Nev. Admin. Code § 608.115.
Further, the Nevada legislature expressly included references to federal regulations in
multiple parts of NRS Chapter 608. See, e.g., NRS § 608.060(3) (referring to 29 C.F.R.
§§ 541.1, 541.2, 41.3, § 541.5, 152); NRS § 608.018(3)(f) (referring to the Motor Carrier Act of
1935); NRS § 608.0116 (29 C.F.R § 541.302; see also NAC § 608.100(3)(c) (stating that the
Nevada minimum wage provisions do not apply to “[a] person employed as a trainee for a period
not longer than 90 days, as described the United States Department of Labor pursuant to section
6(g) of the Fair Labor Standards Act”). That the Nevada legislature expressly adopted some
federal regulations indicates that its failure to adopt others was intentional. See State Dep’t of
Taxation v. DaimlerChrysler, 119 P.3d 135, 139 (Nev. 2005) (“[O]missions of subject matters
from statutory provisions are presumed to have been intentional.”).
There are two Nevada statutes or regulations that bear some resemblance to provisions in
the Portal-to-Portal Act. Upon closer examination, however, they are entirely distinct. The first
is NRS § 608.200, which limits the 8-hour work requirement to “time actually employed in the
mine and does not include time consumed for meals or travel into or out of the actual worksite.”
Nev. Rev. Stat. § 608.200. But, significantly, this provision applies only to mineworkers, and it
includes no mention of “preliminary” and “postliminary” activities. The second is NAC
§ 608.130, which generally provides payment for travel and training but excludes time the
employee spends traveling between work and home. Nev. Admin. Code § 608.130(2)(b). This
regulation also omits any reference to “preliminary” and “postliminary” activities. Thus, neither
of these provisions can be read to imply that the Nevada legislature intended to adopt the Portal-
to-Portal Act. Indeed, if it had adopted the Act, there would be no need to pass NRS § 608.200
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 20
or for the Commissioner to issue the regulation § 608.130(2)(b) to exclude time spent traveling
to or from a place of work.
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 Portal-to-Portal Act into its Code, it can do so.
Furthermore, despite the apocalyptic implications that Defendants seem to believe
rejecting the Portal-to-Portal Act in the state of Nevada would have, both California and
Washington have declined to incorporate it into their state codes and they seem to be doing fine.
See, e.g., Morillion v. Royal Packing Co., 995 P.2d 139 (Ca. 2000) (finding that state labor codes
and wage orders “do not contain an express exemption for travel time similar to that of the
Portal-to-Portal Act” and holding that “[a]bsent convincing evidence of the [Industrial Wage
Commission]’s intent to adopt the federal standard of determining whether time spent traveling
is compensable under state law, we decline to import any federal standard, which expressly
eliminates substantial protections to employees, by implication”); Anderson v. State, Dep’t of
Soc. & Heath Servs., 63 P.3d 134, 136 (Wash. Ct. App. 2003) (“We are not persuaded that the
Legislature intended to adopt the Portal to Portal Act; and we do not hold that it was adopted.”).
In sum, because there is no reason to believe that the Nevada legislature intended to adopt
the Portal-to-Portal Act, we are reluctant to infer an entirely unsupported legislative intent.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 21
b. Arizona
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 Portal-to-Portal
Act.
Arizona law also seems inconsistent with the Portal-to-Portal Act. For instance, the
Industrial Commission4 has promulgated regulations that state that “no less than the 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, commissioned, piece rate, or any other basis.”
See Ariz. Admin. Code R20-5-1206(A) (emphasis added). And as explained above, “hours
worked” is defined under Arizona law as “all hours for which an employee covered under the
Act is employed and required to give the employer, including all time during which an employee
is on duty or at a prescribed work pace and all time the employee is suffered or permitted to
work.” Ariz. Admin. Code R.20-5-1202(9) (emphasis added). And “on duty,” means “time
spent working or waiting that the employer controls and that the employee is not permitted to use
for the employee’s own purpose.” Ariz. Admin. Code R20-5-1202(12). Plaintiffs thus
characterize the Arizona Commission’s definitions as creating something of an “‘anti’ portal-to-
portal act.” (Brief for Appellants at 29.) Whether or not this is a fair characterization, the
language of the regulations strongly suggests that Arizona law is more inclusive than the Portal-
to-Portal Act in the types of work it compensates.
4The Arizona Industrial Commission is the agency tasked with enforcing and implementing Arizona’s
wage statute.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 22
Defendants point to an advisory statement from the Commission as evidence that Arizona
has adopted the FLSA. As cited by Defendants, that statement reads:
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 Portal-to-Portal Act. 29 C.F.R. § 785.50.
But Defendants’ version of the statement omits important qualifying language. Indeed, the
ellipses Defendants introduce after the word “Act” and before “the” obscure the full meaning.
The unaltered statement reads as follows:
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 Portal-to-Portal Act into its Code. As with Nevada, we refuse to read-in such a
significant statute by inference or implication.
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
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 23
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
(quoting 29 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
(quoting 29 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.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 24
1. Nevada 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.
NRS § 608.016, for example, provides that an employee must be paid “wages of each hour the
employee works.” Nev. Rev. Stat. § 608.016 (emphasis added). Or Nevada’s overtime statute,
NRS § 608.018(1)(b), provides that an employer shall pay 1 ½ times an employee’s regular wage
whenever an employee works “[m]ore than 8 hours in any workday.” Nev. Rev. Stat. § 608.018.
Further, although Nevada regulations require an employer to “pay an amount that is at least equal
to the minimum wage when the amount paid to the employee in a pay period is divided by the
number of hours worked by the employee during the pay period,” which looks like the FLSA
standard, that section explicitly applies only to employees paid “by salary, piece rate or any other
wage rate except for a wage rate based on an hour of time.” Nev. Admin. Code § 608.115(2).
The import of § 608.115(2) is clearly that only the minimum wages of non-hourly paid
employees may be calculated on a per-pay-period basis to determine whether there is a minimum
wage violation. Such a regulation is completely inconsistent with the FLSA’s workweek
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
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 25
jurisdiction over the Nevada claims. Id. at *5. It is not surprising that one needs to satisfy the
FLSA’s requirements to bring an FLSA claim, but that is hardly relevant here. In Johnson v.
Pink Spot Vapors, Inc., No. 2:14-CV-1960 JCM (GWF), 2015 WL 433503 (D. Nev. Feb. 3,
2015), another unpublished district court decision, the court dismissed the plaintiff’s FLSA
claims for failing to satisfy the workweek pleading requirement and then found that “its analysis
of plaintiffs’ FLSA claims [was] also applicable” to the plaintiff’s state claims. Id. at *6.
Although this decision nominally supports Defendants’ argument, the district court did not give
any explanation as to why the FLSA’s workweek requirement applied to Nevada state claims.
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.
Ariz. Admin. Code R20-5-1206 (emphasis added).
5Additionally, the district court dismissed the Arizona plaintiffs’ claims for the recovery of overtime pay
under Arizona law on the grounds that Arizona provides no mechanism for the recovery of overtime pay. (R. 236,
Order, PageID # 4699) (citing Reyes v. Lafarga, No. CV-11-1998-PHX-SMM, 2014 WL 5431172 (D. Ariz. Nov.
20, 2013) (“Arizona does not have an overtime law; consequently, the only overtime protections for Arizonan
employees come from the FLSA.”). And Plaintiffs have failed to address this issue in their briefs on appeal.
Therefore, they have forfeited their claims for overtime pay under Arizona law.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 26
Guidance from the Arizona Industrial Commission is also unhelpful to the Arizona
plaintiffs. On its website answering the question, “Is an employer subject to Arizona’s minimum
wage laws required to pay at least minimum wage for all hours worked?,” the Commissioner
responds as follows:
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.
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 27
_______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_______________________________________________________
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 FLSA, so they
implicitly incorporate the Portal-to-Portal Act’s exclusions, and therefore time spent undergoing
security checks is not compensable. Because the majority sees this differently, I must
respectfully dissent from its analysis of the Nevada-law claims. I otherwise concur in the
judgment.
In deciding wage-and-hour issues, Nevada courts look to the FLSA unless Nevada’s
statutory language is materially different from or inconsistent with it. Terry v. Sapphire
Gentlemen’s Club, 336 P.3d 951, 955-56 (Nev. 2014); id. at 958 (harmonizing a state minimum
wage law with the FLSA because “the [Nevada] Legislature has not clearly signaled its intent . . .
[to] deviate from the federally set course”). To be sure, the Nevada Supreme Court “has signaled
its willingness to part ways with the FLSA where the language of Nevada’s statutes has so
required,” id. at 956, but it appears to limit that willingness to situations in which it finds
“substantive reason to break with the federal courts,” id. at 957. I find no such reason here.
In Csomos v. Venetian Casino Resort, LLC, 381 P.3d 605, *3 (Nev. 2012) (Table), the
Nevada Supreme Court found that NRS § 608.018 tracks the FLSA, and has since 2005, because,
in amending the provision, the Nevada Legislature expressly intended to “mirror federal law”;
citing to comments at the bill’s public hearing in 2005 (including “comments from the [Nevada]
Labor Commissioner that the exceptions under NRS 608.018 generally track the exceptions that
are in the Fair Labor Standards Act”), a Nevada Attorney General Opinion, and further
comments during public hearing on a subsequent amendment in 2009. Thus, as the Csomos
Court put it, NRS § 608.018’s “legislative history demonstrates that, although the 2005-2009
Nos. 17-5784/5785 Busk, et al. v. Integrity Staffing Solutions, et al. Page 28
version of the statute [wa]s not as clearly worded as the [subsequent] version, the Nevada
legislature intended [its overtime law] to track federal law beginning in 2005.” Id.
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 NRS § 608.016 and began by citing Terry, 336 P.3d at 955-56,
for the proposition that, because “Nevada law provides little guidance on this issue, we turn to
the federal courts’ interpretation of hours worked under the [FLSA].” Consequently, the Nevada
Supreme Court decided the meaning of “work” based on the FLSA and federal case law. Id.
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.