Heimbach v. Amazon.Com, Inc. (In re Amazon.Com, Inc.)

• Decision Date: 04 November 2019
• Docket Number: No. 18-5942,18-5942
• Citation: 942 F.3d 297
• Parties: IN RE: AMAZON.COM, INC., Fulfillment Center Fair Labor Standards Act (FLSA) and Wage and Hour Litigation. Neal Heimbach; Karen Salasky, Plaintiffs-Appellants, v. Amazon.com, Inc.; Amazon.com.DEDC, LLC; Integrity Staffing Solutions, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

942 F.3d 297

IN RE: AMAZON.COM, INC., Fulfillment Center Fair Labor Standards Act (FLSA) and Wage and Hour Litigation.Neal Heimbach; Karen Salasky, Plaintiffs-Appellants,

v.Amazon.com, Inc.; Amazon.com.DEDC, LLC; Integrity Staffing Solutions, Inc., Defendants-Appellees.

No. 18-5942

United States Court of Appeals, Sixth Circuit.

Decided and Filed: November 4, 2019

ON BRIEF: Peter Winebrake, WINEBRAKE & SANTILLO, LLC, Dresher, Pennsylvania, for Appellants. Jay Inman, LITTLER MENDELSON P.C., Lexington, Kentucky, Richard G. Rosenblatt, MORGAN, LEWIS & BOCKIUS LLP, Princeton, New Jersey, David B. Salmons, Michael E. Kenneally, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Appellees.

Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.

ORDER

GRIFFIN, Circuit Judge:

In Integrity Staffing Solutions, Inc. v. Busk ("Busk I"), 574 U.S. 27, 135 S.Ct. 513, 190 L.Ed.2d 410 (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 ("Portal Act"), 29 U.S.C. § 251 et seq. See id. at 34–37, 135 S.Ct. 513. At issue in this appeal is whether Busk I resolves a similar claim under the Pennsylvania Minimum Wage Act ("PMWA"), 43 Pa. Cons. Stat. § 333.101 et seq. Previously, this court has considered similar appeals arising from multidistrict litigation and involving the wage-and-hour statutes of three other states: Nevada, Arizona, and Kentucky. See Busk v. Integrity Staffing Sols. ("Busk II"), 905 F.3d 387, 391 (6th Cir. 2018), cert. denied , No. 18-1154, ––– U.S. ––––, ––––, 140 S.Ct. 112, 205 L.Ed.2d 25, 2019 WL 4921284, at *1 (U.S. Oct. 7, 2019) ; Vance v. Amazon.com, Inc., 852 F.3d 601, 606 (6th Cir. 2017).

Now, plaintiffs move to certify a question of law to the Pennsylvania Supreme Court. We find that certification is warranted and hereby grant plaintiffs’ motion. Additionally, we certify a second question regarding the issue of defendants’ de minimis defense. Both questions are presented in Section IV of this order. For the reasons discussed below, we respectfully request the assistance of the Pennsylvania Supreme Court regarding these issues.

I.

The relevant facts are not in dispute. Plaintiffs worked at Amazon’s¹ "logistics facility/fulfillment center" located in a large warehouse in Breinigsville, Pennsylvania. Plaintiff Heimbach worked for Amazon while Salasky worked for Integrity Staffing Solutions. Amazon and Integrity "separately employ[ed] hundreds of hourly workers at the Facility." The workers’ duties included "receiving deliveries of merchandise, transporting merchandise to its appropriate location within the Facility, ‘picking’ merchandise from storage locations, and processing merchandise for shipping."

Hourly employees clocked in and out on time clocks at the beginning and end of their shifts, respectively. After clocking out at the end of their shifts, employees were required to undergo antitheft security screening, which included metal detectors, searches of bags and other personal items, and "a secondary screening process if the metal detector’s alarm sound[ed]." While plaintiffs and defendants disagree as to the amount of time this screening took on average, no party disputes that defendants did not compensate their employees for the time it took to wait in line for and undergo these security screenings.

Plaintiff Heimbach filed a putative class action suit in the Philadelphia County Court of Common Pleas, pleading a single count under the PMWA. The first amended complaint in state court added Salasky as a plaintiff. Defendants removed the case to the United States District Court for the Eastern District of Pennsylvania because it satisfied the jurisdictional requirements of the Class Action Fairness Act. See 28 U.S.C. § 1332(d)(2). The United States Judicial Panel on Multidistrict Litigation eventually transferred the case to the Western District of Kentucky, where several cases bringing similar wage-and-hour claims based in other states’ laws were pending.

Following discovery, plaintiffs moved for class certification and defendants moved for summary judgment. The district court granted summary judgment in favor of defendants and denied the class certification motion as moot. Heimbach v. Amazon.com, Inc., No. 3:14-CV-204-DJH, 2018 WL 4148856, at *4 (W.D. Ky. Aug. 30, 2018). In Busk I, the Supreme Court held that "employees’ time spent waiting to undergo and undergoing ... security screenings" is not compensable under the FLSA, as amended by the Portal Act. 574 U.S. at 29, 135 S.Ct. 513. Here, the district court noted that "Pennsylvania and federal courts have used FLSA law for interpretative guidance" where its provisions have mirrored those in the PMWA, and that "the state and federal definitions of compensable time are similar to each other." Heimbach , 2018 WL 4148856, at *2 (citation omitted). The court "conclude[d] that it is proper to consider the Portal-to-Portal Act amendments, and the Supreme Court’s interpretation thereof, in construing and applying the PMWA." Id. at *3 (footnote omitted). After doing so, the district court granted defendants’ motion for summary judgment. Id. at *3–4. Plaintiffs timely appealed and moved this court to certify a question of law to the Pennsylvania Supreme Court to resolve this issue.²

II.

Whether to certify a question of law is within this court’s "sound discretion." Lehman Bros. v. Schein , 416 U.S. 386, 391, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974). "Resort to the certification procedure is most appropriate when the question is new and state law is unsettled." Transamerica Ins. Co. v. Duro Bag Mfg. Co ., 50 F.3d 370, 372 (6th Cir. 1995) (citations omitted). We "generally will not trouble our sister state courts every time an arguably unsettled question of state law comes across our desks. When we see a reasonably clear and principled course, we will seek to follow it ourselves," Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009) (citation and internal quotation marks omitted). In appropriate cases, however, certification "save[s] time, energy, and resources and helps build a cooperative judicial federalism." Lehman Bros., 416 U.S. at 391, 94 S.Ct. 1741 (footnote omitted).

In Vance , we denied the plaintiffs’ motion to certify to the Kentucky Supreme Court the question of "whether the [Kentucky Wages and Hours Act] incorporates the Portal-to-Portal Act." 852 F.3d at 607–08. Two critical facts distinguish this case, however. First, the plaintiffs in Vance did not timely request certification. Id. at 608. Instead, they waited until they had already lost below. Id. at 607–08. "[T]he appropriate time to request certification of a state-law issue is before, not after, the district court has resolved [it]. [O]therwise, the initial federal court decision will be nothing but a gamble with certification sought only after an adverse decision." Id. at 607 (second and third alteration in original) (citations and internal quotation marks omitted). Here, plaintiffs did not have the option of asking the district court to certify a question because the Pennsylvania Supreme Court accepts certified questions only from the Supreme Court of the United States and the federal courts of appeals. Pa. R. App. P. 3341(a). Thus, plaintiffs did not delay their request by making it in this court; they did so at their earliest opportunity, even before briefing the merits.

Second, certification by a federal court of appeals may be particularly appropriate where the law at issue is from "a distant State" outside of the circuit presented with the question. Lehman Bros., 416 U.S. at 391, 94 S.Ct. 1741. For example, "[w]hen federal judges in New York attempt to predict uncertain Florida law, they act ... as ‘outsiders’ lacking the common exposure to local law which comes from sitting in the jurisdiction." Id. Similarly, we are less familiar with Pennsylvania law than Kentucky law, which we encounter on a regular basis. These practical considerations militate in favor of certification.

III.

Pennsylvania Rule of Appellate Procedure 3341 governs certification of questions of law from federal courts. Three elements are required to warrant certification. First, "all facts material to the question of law to be determined" must be undisputed. Pa. R. App. P. 3341(c). Second, the question of law must be "one that the petitioning court has not previously decided." Id. Third, there must be "special and important reasons therefor, including, but not limited to, any of the following":

(1) The question of law is one of first impression and is of such substantial public importance as to require prompt and definitive resolution by the Supreme Court;

(2) The question of law is one with respect to which there are conflicting decisions in other courts; or

(3) The question of law concerns an unsettled issue of the constitutionality, construction, or application of a statute of this Commonwealth.

Id.

A.

We begin by analyzing these elements with respect to the Portal Act issue. The first two are easily satisfied. The parties agree on the material facts of this case and this court has not previously decided whether the PMWA incorporated the Portal Act. As for the "special and important reasons," all three enumerated factors support certification.

First Impression and Substantial Public Importance. The Pennsylvania Supreme Court has adopted a lower-court decision approving the use of federal caselaw interpreting the FLSA to interpret the PMWA in some circumstances. Commonwealth, Dep’t of Labor & Indus., Bureau of Labor Law Compliance v. Stuber , 822 A.2d 870, 873 (Pa. Commw. Ct. 2003) (citation omitted), aff’d sub nom. Commonwealth v. Stuber , 580 Pa. 66, 859 A.2d 1253 (2004) (per curiam). In another case, it stated that "Pennsylvania may enact and impose more generous overtime provisions than those contained under the FLSA which are more...