Roberts v. State

• Decision Date: 08 July 2022
• Docket Number: CV-21-0077-PR
• Citation: 74 Arizona Cases Digest 11,512 P.3d 1007
• Parties: Clinton ROBERTS, et al., Plaintiffs/Appellants, v. STATE of Arizona, Defendant/Appellee.
• Court: Arizona Supreme Court

74 Arizona Cases Digest 11

512 P.3d 1007

Clinton ROBERTS, et al., Plaintiffs/Appellants,

v.STATE of Arizona, Defendant/Appellee.

No. CV-21-0077-PR

Supreme Court of Arizona.

Filed July 8, 2022

Michael Napier (argued), Cassidy L. Bacon, Juliana Tallone, Napier, Baillie, Wilson Bacon & Tallone P.C., Phoenix, Attorneys for Clinton Roberts and Donna Christopher-Hall

Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Wilson C. Freeman (argued), Senior Litigation Counsel, Drew C. Ensign, Section Chief, Civil Appeals, Kirstin Story, and Daniel P. Schaack, Assistant Attorneys General, Phoenix, Attorneys for State of Arizona

Aditya Dynar, Pacific Legal Foundation, Arlington, VA, Attorney for Amicus Curiae Pacific Legal Foundation

JUSTICE BOLICK authored the opinion of the Court, in which VICE CHIEF JUSTICE TIMMER and JUSTICES LOPEZ, BEENE, MONTGOMERY, KING, and PELANDER (Retired) joined.^*

JUSTICE BOLICK, opinion of the Court:

¶1 This case presents the question of whether the State of Arizona has incorporated the Portal-to-Portal Act, 29 U.S.C. §§ 251 – 262, into A.R.S. § 23-392 to govern Arizona corrections officers’ claims for overtime compensation for time spent in mandatory pre-shift security screenings. We hold that for purposes of defining "work" to determine overtime eligibility for law enforcement officers under § 23-392, the state has not incorporated the Portal-to-Portal Act into § 23-392, and state agency regulations purporting to do so are not legally binding. Therefore, contrary to the decisions of the courts below, whether the corrections officers are entitled to overtime should be decided as a matter of state law.

I.

¶2 Plaintiffs are corrections officers ("the Officers") who brought a class action against the State for compensation that was allegedly denied by the Arizona Department of Corrections, Rehabilitation & Reentry for time spent in mandatory and "extensive security screening prior to undertaking their assigned duties." The complaint alleges the following facts: The Officers must wait in line at checkpoints for screenings before gaining access to prison facilities. During the screenings, the Officers must empty all personal possessions for a search and pass through a scanner and turnstile. The Officers must then wait for transportation to their assigned work unit, where the same screening process is repeated. After completing this second pre-shift screening, the Officers work a full eight-hour shift without breaks. The Officers allege these screenings add approximately thirty minutes of unpaid, mandatory time to their shifts.

¶3 In the superior court, the Officers alleged that § 23-392 requires the state to pay overtime compensation for the mandatory pre-shift security screenings and sought treble damages under A.R.S. § 23-355. The State moved to dismiss the complaint pursuant to Arizona Rule of Civil Procedure 12(b)(6), arguing the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 – 219, preempts the Officers’ state law claim. Alternatively, the State argued that Arizona law incorporates the Portal-to-Portal Act ("Portal Act"), 29 U.S.C. §§ 251 – 262, an amendment to the FLSA, which renders the Officers’ time spent in security screenings not compensable.

¶4 The Officers denied that the FLSA preempts state law. They also argued that the Portal Act has not been incorporated into Arizona law either by statute or regulation, that the claims are compensable under state law because of Arizona's broad interpretation of "work," and that they are entitled to overtime compensation even if the Portal Act applies.

¶5 The trial court granted the State's motion to dismiss. The court concluded that federal law did not preempt the Officers’ claims, but that Arizona had adopted the Portal Act by implication, rendering the pre-shift security screening not compensable.

¶6 The court of appeals reversed and held that the Officers’ claims were not preempted by the FLSA, Roberts v. State , 250 Ariz. 590, 595 ¶ 17, 483 P.3d 212, 217 (App. 2021), that the Portal Act was incorporated in Arizona through § 23-392 and by agency regulations, id. at 597 ¶ 27, 483 P.3d at 219, and that the pre-shift screenings were compensable activities under the Portal Act, id. at 599 ¶ 37, 483 P.3d at 221.

¶7 We granted review on whether, under federal law as incorporated in Arizona, corrections officers must be compensated for time spent in pre-shift security screenings. Because this issue assumed that Arizona law incorporated federal law, following oral argument, we invited further supplemental briefing on the following issues: (1) Whether, and to what extent, has the Portal Act been incorporated into § 23-392(A) ; (2) What does the language in § 23-392(A)(1) ("if by the person's job classification overtime compensation is mandated by federal law") refer to; and (3) Whether the Arizona Administrative Code regulations are binding, and, if so, whether the legislature properly delegated to the Director of the Arizona Department of Administration ("AZDOA") the authority to incorporate federal law and the Code of Federal Regulations beyond what § 23-392(A) does. These are important questions of statewide concern. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution. In the context of a Rule 12(b)(6) dismissal, the case presents pure questions of law, which we review de novo. See State v. Hansen , 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168 (2007).

¶8 Although the State has abandoned its argument below that the FLSA preempts state law regarding the definition of work and eligibility for overtime, it maintains (as the court of appeals held) that § 23-392(A) and state agency regulations incorporate the Portal Act, as well as the federal regulations adopted to effectuate the Portal Act. As this case presents complex issues of the interaction between state and federal law and the scope of administrative agency authority, we begin with an overview of the pertinent state and federal law.

II.

¶9 The FLSA was adopted in 1938. Six years later, the United States Supreme Court addressed whether activities that are not part of the job, but are still required by the employer, count as compensable work under the FLSA. Tenn. Coal, Iron & R.R. Co. v. Muscoda Loc. No. 123 , 321 U.S. 590, 593–94, 64 S.Ct. 698, 88 L.Ed. 949 (1944). The Court held that compulsory travel within a mine to reach the job site could qualify as work because it "is at all times under [the employer's] strict control and supervision," and "is not primarily undertaken for the convenience of the miners" but "is spent for the benefit of" the employer. Id. at 598–99, 64 S.Ct. 698.

¶10 Congress narrowed the impact of Tennessee Coal in 1947 by adding the Portal Act to the FLSA, providing among other things that employers are not required to pay overtime compensation to nonexempt employees for "activities which are preliminary to or postliminary to [the] principal activity or activities" that they are employed to perform. 29 U.S.C. § 254(a)(2).

¶11 The leading recent case construing this provision of the Portal Act is Integrity Staffing Solutions, Inc. v. Busk , 574 U.S. 27, 135 S.Ct. 513, 190 L.Ed.2d 410 (2014). In determining what constitutes a "principal activity" under § 254(a), the Supreme Court focused on whether the activity at issue is an integral and indispensable part of the employee's job. Id. at 33, 135 S.Ct. 513 (deciding whether post-shift security screenings were compensable). Federal and state courts applying the Portal Act to security screenings have reached different conclusions concerning whether the screenings are "integral and indispensable" to jobs covered by the act. Compare, e.g. , Aguilar v. Mgmt. & Training Corp. , 948 F.3d 1270, 1289 (10th Cir. 2020) (holding the pre-shift security screenings of corrections officers compensable), with Hootselle v. Mo. Dep't of Corr. , 624 S.W.3d 123, 139–40 (Mo. 2021) (holding the pre-shift security screenings of corrections officers non-compensable).

¶12 In 1985, the Supreme Court ruled that the minimum wage and overtime provisions of the FLSA, including the Portal Act, are applicable to state and local government employers. Garcia v. San Antonio Metro. Transit Auth. , 469 U.S. 528, 555–56, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). However, the FLSA expressly allows states to enact their own laws providing greater protections to workers than the FLSA requires. 29 U.S.C. § 218(a).¹

¶13 Arizona adopted § 23-392 to govern overtime compensation for certain law enforcement officers in 1975 with no reference to federal law. See 1975 Ariz. Sess. Laws ch. 51, § 1 (1st Reg. Sess.). At that time, § 23-392(A) read as follows:

Any person engaged in law enforcement activities shall be compensated, for each hour worked in excess of forty hours in one work week, at the option of such employer either at a rate of:

1. One and one-half times the regular rate at which he is employed; or

2. One hour of compensatory time off in lieu of cash payment.

¶14 In 1984, the Arizona Court of Appeals decided Prendergast v. City of Tempe , 143 Ariz. 14, 20–21, 691 P.2d 726, 732-33 (App. 1984), holding that meal periods for certain officers constituted compensable work. The court observed that § 23-392(A) did not define "work." Id. at 17, 691 P.2d at 729. The court also noted that 29 U.S.C. § 207(k), a provision in the FLSA that specifies overtime eligibility for law enforcement officers, "is irrelevant where the issue is the proper definition of work time." Id. at 20 n.5, 691 P.2d at 732. Rather, "[t]he proper and overriding test is whether the waiting time in issue is predominantly for the employer's benefit or for the employee's benefit." Id. at 19, 691 P.2d at 731. More specifically, a court "must consider what the normal duties of the employee are and whether the employee's leisure is so restricted that it cannot be fairly said to be primarily for the employee's benefit," viewed in "the totality of all the...