Lindsey Buero v. amazon.com Services, Inc. ( 2021 )


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  •                       FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    LINDSEY BUERO, Individually and                    No. 20-35633
    on behalf of all similarly situated,
    Plaintiff-Appellant,                D.C. No.
    3:19-cv-00974-MO
    v.
    AMAZON.COM SERVICES, INC.,                           ORDER
    DBA Amazon Fulfillment                            CERTIFYING
    Services, Inc., a foreign                        QUESTION TO
    corporation; AMAZON.COM, INC.,                   THE SUPREME
    a foreign corporation,                             COURT OF
    Defendants-Appellees.                   OREGON
    Filed December 22, 2021
    Before: Susan P. Graber and Morgan Christen, Circuit
    Judges, and Raner C. Collins,* District Judge.
    Order
    *
    The Honorable Raner C. Collins, United States District Judge for the
    District of Arizona, sitting by designation.
    2              BUERO V. AMAZON.COM SERVICES
    SUMMARY**
    Oregon Law
    The panel certified to the Supreme Court of Oregon the
    following question:
    Under Oregon law, is time that employees
    spend on the employer’s premises waiting for
    and undergoing mandatory security screenings
    compensable?
    COUNSEL
    Lisa T. Hunt, Law Office of Lisa T. Hunt LLC, Lake
    Oswego, Oregon; David A. Schuck, Schuck Law LLC,
    Vancouver, Washington; for Plaintiff-Appellant.
    Michael E. Kenneally and David B. Salmons, Morgan Lewis
    Bockius LLP, Washington, D.C.; Richard G. Rosenblatt,
    Morgan Lewis & Bockius LLP, Princeton, New Jersey; for
    Defendants-Appellees.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    BUERO V. AMAZON.COM SERVICES                         3
    ORDER
    Plaintiff Lindsey Buero filed a class action complaint
    against Amazon.com Services, Inc. and Amazon.com, Inc.,
    alleging that Defendants’ failure to compensate employees
    for time spent waiting for and passing through mandatory
    security screenings violates Oregon’s wage and hour laws.
    The district court granted Defendants’ motion for judgment
    on the pleadings, concluding that Oregon wage and hour law
    incorporates the standard set forth in the Portal-to-Portal Act,
    
    29 U.S.C. § 254
    . Plaintiff appealed the district court’s order.
    We respectfully ask the Oregon Supreme Court to answer
    the certified question presented below pursuant to section
    28.200 of the Oregon Revised Statutes, because we have
    concluded that it raises an important, dispositive question of
    state law: whether time employees spend at an employer’s
    premises waiting for and undergoing mandatory security
    screening is compensable under Oregon law.1 See W.
    Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 
    811 P.2d 627
     (Or. 1991). We offer the following statement of relevant
    facts and explanation of the “nature of the controversy in
    which the question[ ] arose.” 
    Or. Rev. Stat. § 28.210
    (2)
    (2005).
    I. Facts
    Defendants Amazon.com Services, Inc. and Amazon.com,
    Inc. constitute a major multinational technology and retail
    operation focusing on e-commerce and cloud computing.
    Defendants require their employees to go through a security
    screening at the end of each shift and before exiting for
    1
    Appellant’s motion for certification (Dkt. #6) is GRANTED.
    4            BUERO V. AMAZON.COM SERVICES
    offsite meal breaks. The employees must “punch out” before
    going through the security screening, and they are not paid
    for the time spent waiting for and going through the security
    screening, which can include bag checks and x-rays of
    personal belongings. Defendants require these screenings as
    a loss-prevention practice to avoid theft of products. Plaintiff
    alleges the required security screenings take anywhere from
    two to fifteen minutes per shift and that Defendants did not
    make any adjustment in their timekeeping system to account
    for the time it takes to complete security screenings.
    Plaintiff Lindsey Buero filed this action on May 22, 2019,
    alleging an individual claim for unpaid wages and penalty
    wages. The penalty wage claim is for the untimely final
    payment of wages following the end of Buero’s employment
    on December 22, 2018. Plaintiff further alleges class claims
    for two putative classes: (1) plaintiffs claiming unpaid wages
    that accrued during their term of employment (i.e. the
    “unpaid-wages class”) pursuant to sections 652.120 and
    653.010 of the Oregon Revised Statutes; and (2) plaintiffs
    claiming untimely final pay upon termination of their
    employment (i.e., the “late-payment class”) pursuant to
    section 652.140 of the Oregon Revised Statutes. For both the
    individual and class claims arising from the late payment of
    final wages in violation of section 652.140, Plaintiff
    additionally seeks penalty wages under section 652.150 and
    mandatory attorney fees and cost reimbursement under
    section 652.200 of the Oregon Revised Statutes.
    Defendants filed a motion for judgment on the pleadings
    pursuant to Rule 12(c) of the Federal Rules of Civil
    BUERO V. AMAZON.COM SERVICES                     5
    Procedure on all claims except Plaintiff’s individual late-
    payment claim. Defendants argued that Oregon has
    incorporated the Portal-to-Portal Act amendments to the Fair
    Labor Standards Act (“FLSA”) and that the Supreme Court’s
    decision in Integrity Staffing Solutions, Inc. v. Busk, 
    574 U.S. 27
     (2014), defeats Plaintiff’s state-law claims. In Busk, the
    Supreme Court held that employees’ time spent passing
    through security screenings at Amazon.com fulfillment
    centers was not compensable under the FLSA as amended by
    the Portal-to-Portal Act. 
    Id. at 29
    . The district court granted
    Defendants’ motion on January 31, 2020, concluding that
    Oregon wage and hour law tracks federal law and therefore
    incorporates the standard in the Portal-to-Portal Act. The
    district court then entered final judgment on the dismissed
    claims and certified Plaintiff’s interlocutory appeal.
    II. Discussion
    The key issues in this case are whether: (1) Oregon’s
    wage and hour laws track the FLSA and may be interpreted
    under federal law; and (2) the Supreme Court’s interpretation
    of the Portal-to-Portal Act, 
    29 U.S.C. § 254
    , in Busk applies
    to Plaintiff’s claims.
    Plaintiff’s claims turn on whether time spent undergoing
    mandatory security screenings before leaving the workplace
    premises constitutes “hours worked” under Oregon law. The
    Bureau of Labor and Industries (BOLI) has defined “hours
    worked” as:
    [A]ll hours for which an employee is
    employed by and required to give to the
    employer and includes all time during which
    an employee is necessarily required to be on
    6            BUERO V. AMAZON.COM SERVICES
    the employer’s premises, on duty or at a
    prescribed work place and all time the
    employee is suffered or permitted to work.
    “Hours worked” includes “work time” as
    defined in ORS 653.010(11).
    OR. ADMIN. R. 839-020-0004(19).
    Congress passed the Portal-to-Portal Act in 1947 to
    exempt employers from FLSA liability for claims based on
    “activities which are preliminary to or postliminary to” the
    “performance of the principal activity or activities” that an
    employee is employed to perform. Busk, 547 U.S. at 33
    (quoting 
    29 U.S.C. § 254
    (a)). The Supreme Court has
    interpreted the term “principal activities” to include all
    activities that are an “integral and indispensable part of the
    principal activities.” Steiner v. Mitchell, 
    350 U.S. 247
    ,
    252–53 (1956).
    Neither party argues that the Oregon legislature has
    expressly adopted the Portal-to-Portal Act, but Defendants
    cite an Oregon administrative rule that provides:
    Preparatory and concluding activities are
    considered hours worked if the activities
    performed by the employee are an integral
    and indispensable part of a principal activity
    for which the employee is employed.
    OR. ADMIN. R. 839-020-0043(1).
    Plaintiff argues that Oregon’s wage and hour laws do not
    incorporate the FLSA, and that Oregon “sought to
    distinguish, rather than to adopt,” the Portal-to-Portal Act as
    BUERO V. AMAZON.COM SERVICES                     7
    evidenced by the following facts: “(1) there is no express
    textual reference to the Act in Oregon’s statutes or rules;” and
    (2) “the express exclusions from compensability for specified
    activities under the Act can be found nowhere in Oregon
    law.” Meanwhile, Defendants contend that “Oregon courts
    have repeatedly noted that the state’s wage-and-hour law is
    ‘patterned after’ or ‘modeled on’ its federal counterpart,” and
    that Oregon’s regulation defining preparatory and concluding
    activities, Oregon Admin. R. 839-020-0043, uses the same
    text as the Supreme Court’s language interpreting the Portal-
    to-Portal Act. According to Defendants, this adoption
    suggests that Oregon has incorporated the federal scheme.
    Pursuant to section 28.200 of the Oregon Revised
    Statutes, a certified question must be one that “may be
    determinative of the cause;” and it must appear to the
    certifying court that there is no controlling precedent in the
    decisions of the Oregon Supreme Court or the Oregon Court
    of Appeals. W. Helicopter Servs., Inc., 811 P.2d at 629 (Or.
    1991). Both criteria are met here. First, because the Supreme
    Court has clearly ruled that comparable security screenings
    are not compensable under the Portal-to-Portal Act, the
    outcome of this case turns on whether Oregon law follows the
    federal scheme. Second, the Oregon Supreme Court has not
    yet addressed whether Oregon has adopted the federal “hours
    worked” standard. We seek guidance from the Oregon
    Supreme Court in this instance because it is not clear to us
    whether the similarities between 
    Or. Admin. R. 839
    -020-0043
    and the Portal-to-Portal Act should be construed as an
    incorporation of the federal standard.
    8            BUERO V. AMAZON.COM SERVICES
    III.    Certified Question of Law
    We respectfully certify the following question to the
    Oregon Supreme Court pursuant to section 28.200 of the
    Oregon Revised Statutes and Oregon Rule of Appellate
    Procedure 12.20:
    Under Oregon law, is time that employees spend on the
    employer’s premises waiting for and undergoing mandatory
    security screenings compensable?
    IV.     Conclusion
    We do not intend our framing of this question to restrict
    the Oregon Supreme Court’s consideration of any issues that
    it deems relevant. We have previously acknowledged both
    the Oregon Supreme Court’s ability to “reformulate the
    relevant state law questions as it perceives them to be in light
    of the contentions of the parties,” and “our obligation to abide
    by that court’s determination of the state law questions
    presented.” Lombardo v. Warner, 
    391 F.3d 1008
    , 1010 (9th
    Cir. 2004) (en banc) (citations omitted). If the Oregon
    Supreme Court resolves this question, we will resolve the
    issue in our case according to its answer.
    The Clerk of the court is hereby directed to immediately
    transmit to the Oregon Supreme Court, under official seal of
    the Ninth Circuit, a copy of this order and request for
    certification and all relevant briefs and excerpts of record
    pursuant to section 28.200 of the Oregon Revised Statutes
    and Oregon Rule of Appellate Procedure 12.20.
    Further proceedings in our court on the certified question
    are stayed pending the Oregon Supreme Court’s decision
    BUERO V. AMAZON.COM SERVICES                   9
    whether it will accept review, and if so, our receipt of the
    answer to the certified question. The Clerk is directed to
    administratively close this docket, pending further order. The
    case is withdrawn from submission, in pertinent part, until
    further order from this court. The panel will resume control
    and jurisdiction on the certified question upon receiving an
    answer to the certified question or upon the Oregon Supreme
    Court’s decision to decline to answer the certified question.
    IT IS SO ORDERED.
    /s/ Susan P. Graber
    Susan P. Graber, Circuit Judge,
    Presiding
    

Document Info

Docket Number: 20-35633

Filed Date: 12/22/2021

Precedential Status: Precedential

Modified Date: 12/22/2021