In re: Amazon.Com, Inc., Fulfillment Center Fair Labor Standards Act (FLSA) and Wage and Hour Litigation.
Amazon.com, Inc.; Amazon.com.KYDC, Inc.; Amazon.com.KYDC, LLC; Zappos.com, Inc.; Zappos Fulfillment Centers, Inc.; Kelly Services, Inc., Defendants-Appellees. Tina Vance and Aaron Vance, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
Argued: December 7, 2016
from the United States District Court for the Western
District of Kentucky at Louisville. Nos. 3:13-cv-00765;
3:14-md-02504-David J. Hale, District Judge.
W. Garrison, BARRETT JOHNSTON MARTIN & GARRISON, LLC,
Nashville, Tennessee, for Appellants.
Richard G. Rosenblatt, MORGAN LEWIS & BOCKIUS LLP,
Princeton, New Jersey, for Amazon Appellees.
L. Maatman, Jr., SEYFARTH SHAW LLP, Chicago, Illinois, for
Appellee Kelly Services.
W. Garrison, Jerry E. Martin, Scott P. Tift, Seth M. Hyatt,
BARRETT JOHNSTON MARTIN & GARRISON, LLC, Nashville,
Tennessee, David O. Suetholz, KIRCHER, SUETHOLZ &
GRAYSON, PSC, Louisville, Kentucky, J. Chris Sanders, CHRIS
SANDERS LAW, PLLC, Louisville, Kentucky, for Appellants.
Richard G. Rosenblatt, MORGAN LEWIS & BOCKIUS LLP,
Princeton, New Jersey, Kathryn A. Quesenberry, DINSMORE &
SHOHL LLP, Louisville, Kentucky, for Amazon Appellees.
L. Maatman, Jr., Rebecca P. DeGroff, SEYFARTH SHAW LLP,
Chicago, Illinois, for Appellee Kelly Services.
Before: SILER, BATCHELDER, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Integrity Staffing Solutions, Inc. v. Busk, 135
S.Ct. 513 (2014), the Supreme Court held that post-shift
security screening is a noncompensable postliminary activity
under the Fair Labor Standards Act (FLSA), 29 U.S.C. §
201 et seq., as amended by the Portal-to-Portal Act,
29 U.S.C. § 251 et seq. See id. at 518-19. At
issue here is whether Integrity Staffing resolves a
similar claim under the Kentucky Wages and Hours Act (KWHA),
Ky. Rev. Stat. § 337.285. Because we conclude the
Kentucky Supreme Court would apply Integrity
Staffing to the state's wage and hour law, we affirm
the district court's dismissal of plaintiffs' KWHA
retailers Amazon.com, Amazon.com.KYDC, Inc., Amazon.com.KYDC,
LLC, Zappos.com, and Zappos Fulfillment Centers
(collectively, "Amazon") operate a warehouse
fulfillment center in Shepherdsville, Kentucky, where hourly
workers fill orders, track merchandise, and process returns.
Plaintiffs Tina and Aaron Vance began working at the center
in 2012-Tina as an employee of Amazon, and Aaron as a joint
employee of Amazon and staffing agency Kelly Services. Both
regularly worked at least forty hours a week. Amazon tracked
the Vances' hours with a "time clock" system;
employees "clocked in" at the beginning of their
shifts, and "clocked out" at the end of the
before permitting "clocked out" employees to leave,
Amazon required them to -in plaintiffs'
words-"proceed through a lengthy theft-prevention
security screening operation." Workers passed through a
metal detector while security guards "inspect[ed] any
bags or personal items" they intended to take home. If
an employee set off the metal detector, the guard
"search[ed]" him or her further "using a metal
detecting wand." "This mandatory, post-shift
theft-prevention screening" took anywhere from 10 to 30
minutes. Defendants never paid Tina or Aaron overtime
compensation for the time they spent undergoing the
post-shift security screening-"a required job activity,
" designed "solely to benefit Defendants."
Vances filed the present action against Amazon and Kelly
Services in 2013, alleging that such nonpayment violates the
Fair Labor Standards Act and its state-law counterpart, the
Kentucky Wages and Hours Act. Plaintiffs were not the only
employees who disputed Amazon's practices. By early 2014,
the Vances' case was one "of five related
actions" pending in district courts across the country.
Each involved similar allegations: "that Amazon.com and
various staffing agencies violate federal and state wage and
hour laws by requiring workers . . . to pass through lengthy
anti-theft security screening after clocking out . . .
without compensation for that time."
United States Judicial Panel on Multidistrict Litigation
transferred the actions to the Western District of Kentucky
for consolidation. Recognizing the Supreme Court already
granted certiorari in Integrity Staffing, the
district court stayed the other four cases pending the
Integrity Staffing Court determined the security
screenings were noncompensable under the Portal-to-Portal
Act. 135 S.Ct. at 518. Enacted as an amendment to the FLSA,
the Portal-to-Portal Act "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. 135
S.Ct. at 518.
of the Court's ruling, the Vances withdrew their FLSA
claims. They maintained, however, that Integrity
Staffing did not foreclose their claim to overtime under
the KWHA for two reasons. "First, " plaintiffs
explained, Integrity Staffing "was not
an FLSA decision but rather a Portal-to-Portal Act decision.
. . . Second, Kentucky has never enacted a Portal-to-Portal
Act of its own and the KWHA contains no comparable exclusions
from coverage." (Emphasis in original.)
granting defendants' motions for judgment on the
pleadings, the district court rejected both arguments.
"The main problem with the plaintiffs' position,
" it wrote, "is that they treat the
Portal-to-Portal Act as separate and distinct from the FLSA.
Yet the Portal-to-Portal Act amended the FLSA. . . .
It does not alter the FLSA's construct or make
substantive changes to the FLSA's concepts about work,
overtime, or the like. It simply clarifies that some
activities do not count as 'work.'" And while
"Kentucky's laws do not contain Portal-to-Portal
language, " the Kentucky Supreme Court refers to federal
law in construing the KWHA. Given that "Kentucky looks
to federal law to determine what is work under its
wage and hour laws, " the district court concluded that
Kentucky courts would find "federal law explaining what
is not ...