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News | May 05, 2020

Our Pennsylvania Supreme Court Argument Against Imposing a De Minimis Rule on Pennsylvania Minimum Wage Act (“PMWA”) Claims

Our firm has the privilege of representing a class of Amazon.com warehouse workers who seek compensation under the Pennsylvania Minimum Wage Act (“PMWA”) for time associated with mandatory, anti-theft security screenings that Amazon subjected the warehouse workers to at the end of their shifts.  In opposing the lawsuit, one of Amazon’s arguments is that the time is non-compensable because it is de minimis.

The case wound up at the Sixth Circuit Court of Appeals, which certified two questions to the Pennsylvania Supreme Court.  One of those questions asks whether the de minimis doctrine apples to PMWA claims.  Specifically:  “Does the doctrine of de minimis non carat lex, as described in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) and Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014), apply to bar claims brought under the Pennsylvania Minimum Wage Act, 43 P.S. §§ 333.101-333.115?”

Fortunately, the Pennsylvania Supreme Court agreed to answer the above question.  The appeal is pending and is styled Heimbach v. Amazon.com, Inc., 43 EAP 2019.  Our firm has filed an opening brief on behalf of the warehouse workers.  Of course, we argue that the answer to the above question is “No.”

Our full argument to the Supreme Court is reproduced below:

1. The FLSA’s de minimis rule.

In federal FLSA litigation, the caselaw and the federal Department of Labor (“DOL”) have recognized a de minimis rule.  The rule has its origins in Anderson v. Mount Clemens Pottery Co., a 1946 opinion in which the U.S. Supreme Court held that, under the FLSA, compensable pay included, inter alia, “time necessarily spent by the employees in walking to work on the employer’s premises” because “[s]uch time was under the complete control of the employer.”  328 U.S. 680, 691 (1946).  The Anderson Court also explained that, when an employer fails to keep “proper and accurate records” of an employee’s work time, an employee is merely required to “produce[] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.”  Id. at 687.  Finally, the Anderson Court described a “de minimis rule” that applied to FLSA claims for uncompensated time:

We do not, of course, preclude the application of a de minimis rule where the minimum walking time is such as to be negligible.  The workweek contemplated by [FLSA] § 7(a) must be computed in light of the realities of the industrial world.  When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded.  Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act.  It is only when an employee is required to give up a substantial measure of his time and effort that compensable working time is involved.  The de minimis rule can doubtless be applied to much of the walking time involved in this case, but the precise scope of that application can be determined only after the trier of facts makes more definite findings as to the amount of walking time in issue.

Id. at 692.

In 1961, the federal Department of Labor (“DOL”) enacted a regulation describing the FLSA’s de minimis rule.  See 26 FR 195 (Jan. 11, 1961).  As indicated below, the DOL takes a restrictive view of the doctrine:

In recording working time under the [FLSA], insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.  The courts have held that such trifles are de minimis. (Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946))  This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities.  An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.  See Glenn L. Martin Nebraska Co. v. Culkin, 197 F.2d 981, 987 (C.A. 8, 1952), cert. denied, 344 U.S. 866 (1952), rehearing denied, 344 U.S. 888 (1952), holding that working time amounting to $1 of additional compensation a week is “not a trivial matter to a workingman,” and was not de minimis; Addison v. Huron Stevedoring Corp., 204 F.2d 88, 95 (C.A. 2, 1953), cert. denied 346 U.S. 877, holding that “To disregard workweeks for which less than a dollar is due will produce capricious and unfair results.” Hawkins v. E. I. du Pont de Nemours & Co., 12 W.H. Cases 448, 27 Labor Cases, para. 69,094 (E.D. Va., 1955), holding that 10 minutes a day is not de minimis.

29 C.F.R. 785.47; see also 26 FR 195 (Jan. 11, 1961).

The U.S. Supreme Court would not address the FLSA’s de minimis rule again until a 2014 opinion entitled Sandifer v. U.S. Steel Corp.  There, the Court held that, under FLSA § 3(o) – which makes certain washing and clothes-changing activities non-compensable when performed by unionized employees – the employees’ FLSA claims were strictly limited to time spent putting on safety glasses, earplugs, and a respirator.  See 571 U.S. 220, 226-33 (2014).  Then, in a somewhat confusing paragraph, the Court stated that the de minimis rule did not apply to lawsuits arising under FLSA Section 3(o):

We doubt that the de minimis doctrine can properly be applied to the present case.  To be sure, Anderson included “putting on aprons and overalls” and “removing shirts” as activities to which “it is appropriate to apply a de minimis doctrine.” Id., at 692-693, 66 S. Ct. 1187, 90 L. Ed. 1515.  It said that, however, in the context of determining what preliminary activities had to be counted as part of the gross workweek under §207(a) of the Fair Labor Standards Act.  A de minimis doctrine does not fit comfortably within the statute at issue here, which, it can fairly be said, is all about trifles – the relatively insignificant periods of time in which employees wash up and put on various items of clothing needed for their jobs.  Or to put it in the context of the present case, there is no more reason to disregard the minute or so necessary to put on glasses, earplugs, and respirators, than there is to regard the minute or so necessary to put on a snood.  If the statute in question requires courts to select among trifles, de minimis non curat lex is not Latin for close enough for government work.

Id. at 234 (emphasis in original).  In addition, the Sandifer Court recognized the restrictive nature of the DOL’s de minimis regulation:

We note, moreover, that even in that context, the current regulations of the Labor  Department apply a stricter de minimis standard than Anderson expressed.  They specify that “[a]n employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.”  29 CFR § 785.47.

Id. at 234 n. 8.

Finally, the Third Circuit Court of Appeals addressed the FLSA’s de minimis rule in a 2007 opinion entitled De Asencio v. Tyson Foods, Inc., which involved poultry workers’ FLSA claims seeking compensation for time spent “donning, doffing and washing” at the beginning and end of the shift.  See 500 F.3d 361, 363 (3d Cir. 2007).  The De Asencio Court cited favorably to the restrictive language in the DOL’s de minimis regulation.  See id. at 374 (quoting 29 C.F.R. § 785.47).  The Court also listed three considerations that should be considered in applying any de minimis rule:  “‘(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.’”  Id. (quoting Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984)).  Finally, the Court cited favorably to the following language:  “[W]e will consider the size of the aggregate claim.  Courts have granted relief for claims that might have been minimal on a daily basis but, when aggregated, amounted to a substantial claim.”  Id. at 374-75 (quoting Lindow, 738 F.2d at 1063).

2. Neither the PMWA nor its regulations establish a de minimis rule 

As observed in the Caiarelli dissent, there is no “established ‘de minimis’ rule under the PMWA.”  Caiarelli, 46 A.3d at 648; see also Appx. C at 9 (“It appears to us that no Pennsylvania case other than Caiarelli addresses the de minimis doctrine in the context of the PMWA.”).

3. The PMWA’s plain language precludes imposition of a de minimis rule.

As previously noted, in interpreting Pennsylvania statutes and regulations, the plain language “is paramount.”  Schappel, 934 A.2d at 1187 (Pa. 2007); accord 1 P.S. § 1921(b).  So we must look to the PMWA’s text, which requires employers to pay employees “for all hours worked.”  43 P.S. § 333.104(a) (emphasis supplied).  Moreover, the PMWA’s overtime pay regulation requires that overtime-eligible employees receive time and one-half overtime pay for “all hours worked in excess of 40 hours in a workweek.”  34 Pa. Code § 231.41 (emphasis supplied).

The FLSA’s de minimis rule – which allows for some amounts of time to be excluded from hours worked – simply cannot be reconciled with the PMWA’s plain language requirement that employees be paid “for all hours worked.”  The word “all” means, inter alia, “the whole amount” and “as much as possible” and “the greatest possible.”  Webster’s Third New International Dictionary (1993 ed.) 54.

This brings an end to the analysis.  See Martin, 905 A.2d at 443 (this Court “will resort to other considerations to discern legislative intent only when the words of the statute are not explicit”).  The FLSA’s de minimis rule contradicts the PMWA’s unambiguous statutory and regulatory language and, as such, has no place in PMWA litigation.  Accord Troester v. Starbucks Corp., 421 P.3d 1114, 1120 (Cal. 2018) (refusing to adopt de minimis rule because, inter alia, rule violates California Wage Order requiring employees to be paid for “any work” and “all hours worked”).

4. Even if this Court looks beyond the PMWA’s plain language, further analysis confirms that the de minimis rule should not be imposed on PMWA claims.

Perhaps this Court will choose to look beyond the PMWA’s plain statutory and regulatory language.  If it does, several previously discussed principles of statutory construction will apply.  These principles include the Court’s instructions that: (i) “‘it is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include,’” Piper Group, 30 A.3d at 1092 (quoting Rieck Investment Corp., 213 A.2d at 282); (ii) “one must listen attentively to both what a statute says, and to what it does not say,” Pa. Medical Society, 39 A.3d at 283; accord Piper, 30 A.3d at 1092; and (iii) courts “presume[] that when enacting legislation, the General Assembly is familiar with extant law.”  Int’l Ass’n of Firefighters, 999 A.2d at 566 (citing White Deer Twp., 985 A.2d at 762); see also Birth Centers, 787 A.2d at 387.

The above principles of construction are important because neither the PMWA nor its accompanying regulations make any mention of the de minimis rule.  As discussed below, the judiciary should not fill this void:

First of all, when the PMWA was passed and the PMWA regulations were drafted, the FLSA’s de minimis rule was well-established, having been featured in the U.S. Supreme Court’s 1946 Anderson opinion and “codified” in the federal DOL’s 1961 regulations.  See pp. 33-35 supra.  Surely, the General Assembly and Secretary have been aware of the FLSA’s de minimis rule.  See Troester, 421 P.3d at 1120 (“Although Anderson has been the law for 70 years and has been incorporated into the Code of Federal Regulations for over 50 years, neither the Labor Code statutes nor any wage order has been amended to recognize a de minimis exception.”).

Moreover, in 2012, Justice Todd and former Justice McCafferty publicly asserted that there is no “established ‘de minimis’ rule under the PMWA.”  Caiarelli, 46 A.3d at 648.  Yet, in the eight ensuing years, the General Assembly still has not adopted a de minimis rule, and the Secretary still has not promulgated a de minimis regulation.  This is so even though the General Assembly has demonstrated a willingness to amend the PMWA in response to other judicial decisions.  See, e.g., LeClair v. Diakon Lutheran Social Ministries, 2013 Pa. Dist. & Cnty. Dec. LEXIS 1, *8 (Pa. Com. Pl., Lehigh Cty. Jan. 14, 2013) (discussing 2012 PMWA amendments passed in response to court decisions).

Finally, the General Assembly’s and Secretary’s silence regarding the de minimis rule is even more significant when one considers that, in other contexts, the General Assembly and Secretary have seen fit to copy other FLSA provisions verbatim.  E.g., compare 43 P.S. § 333.105(a)(5) with 29 U.S.C. § 213(a)(1); compare 34 Pa. Code § 231.43(b) with 29 C.F.R. § 778.112; compare 34 Pa. Code § 231.43(1)-(7) with 29 U.S.C. § 207(e)(1)-(7).  As Judge Bissoon observed in another PMWA action, if the Department of Labor & Industry wanted to copy an FLSA regulation into the Pennsylvania Code, “it certainly knew how to do so.”  Foster v. Kraft Foods Global, Inc. 285 F.R.D. 343, 345 (W.D. Pa. 2012).

In sum, it is not for this Court to impose on Pennsylvania workers a substantive limitation on their PMWA right to be paid for “all hours worked” where neither the General Assembly nor the Secretary has chosen to do so through the formal legislative or rulemaking procedures.

5. The de minimis rule also contradicts the public policy underlying the PMWA.

Analysis of the public policy underlying the PMWA is unnecessary where, as here, the de minimis rule’s inapplicability can be determined based on the statutory and regulatory text.  See, e.g., Martin, 905 A.2d at 443 (this Court “will resort to other considerations to discern legislative intent only when the words of the statute are not explicit”).  Notwithstanding, and as discussed below, the PMWA’s policy goals are not furthered by a de minimis rule.

As discussed at pages 20-22 supra, the public policy underlying the PMWA is profoundly pro-employee.  See, e.g., Chevalier, 220 A.3d at 1055 (“In enacting the PMWA, the General Assembly did not mince words in stating its purpose and fervently indicating its intent to use the Commonwealth’s police power to increase employee wages.”).  So the PMWA must be “liberally construed to effect th[is] object and to promote justice.”  1 P.S. § 1928(c).

The de minimis rule cannot be squared with the PMWA’s policy goals.  At its core, the rule requires workers – rather than employers – to absorb the economic cost of otherwise compensable “work.”  This is unjust.  Why, for example, should warehouse workers like Mr. Heimbach and Ms. Salasky be shortchanged just because their multi-billion-dollar employer views security screening time as “insignificant” or “de minimis” or not worth measuring?  If, as Anderson states, the de minimis doctrine really is about “trifles,” shouldn’t the company – rather than the hourly worker – be responsible for the trifles?

In Troester, the California Supreme Court put it this way:  “Nor is it clear why, when it is difficult to keep track of time worked, the employee alone should bear the burden of that difficulty.”  Troester, 421 P.3d at 1123.  After all, “employers are in a better position than employees to devise alternatives that would permit the tracking of small amounts of regularly occurring worktime.”  Id. at 1125.  Thus, the Court “decline[d] to adopt a rule that would require the employee to bear the entire burden of any difficulty in recording regularly occurring worktime.”  Id.  The Court held:

In light of the wage order’s remedial purpose requiring a liberal construction, its directive to compensate employees for all time worked, the evident priority it accorded that mandate notwithstanding customary employment arrangements, and its concern with small amounts of time, we conclude that the de minimis doctrine has no application under the circumstances presented here.

Id.

The same can be said in Pennsylvania.  Although this Court is called upon to answer a question of law, the disputed facts underlying the instant lawsuit exemplify the “real-life” context in which the de minimis rule is invoked by employers.  As summarized at pp. 7-8 supra, Heimbach asserts that Amazon’s mandatory security screenings resulted in unpaid time averaging 8.02 minutes per day and totaling 67.75 hours; Salasky asserts that the screenings resulted in unpaid time averaging 4.38 minutes per day and totaling 9.46 hours; and the putative class asserts that the screenings resulted in unpaid time averaging 21 minutes per week per class member, totaling 12,343,546 (or 205,725 hours), and costing workers over $2 million in unpaid overtime wages.  As in Troester, “[w]hat [Amazon] calls ‘de minimis’ is not de minimis at all to many ordinary people who work for hourly wages.”  Troester, 421 P.3d at 1125.

In Pennsylvania – as in California – the de minimis rule cannot be squared with the pro-employee policies underlying our state’s wage and hour laws.

6. If this Court endorses a de minimis rule for PMWA claims, the rule should be severely restricted.

In FLSA litigation, some federal courts have stretched the de minimis rule well beyond any reasonable limits.  For example, some judges have made sweeping assertions that any work totaling less than 10 minutes per day is de minimisSee, e.g., Hesseltine v. Goodyear Tire & Rubber Co. 391 F. Supp. 2d 509, 519 (E.D. Tx. 2005) (“Plaintiffs’ claims for ten minutes or less are de minimis as a matter of law.”).[1]  Amazon referenced this purported 10-minute threshold at the Kentucky District Court.  See R.116a.  Such an arbitrary “10-minute rule” is profoundly unfair and would cost a full-time employee making $15/hour over $18 in wages per week ($15 X 1.5 X .8333 hours).  Surely, such rules cannot be squared with this Commonwealth’s tradition of workplace justice.

However, if this Court decides to endorse a PMWA de minimis rule, it should restrict the rule so that it is not abused by employers and misapplied by trial court judges in contravention the PMWA’s policy goals.  The following restrictions would be warranted:

First, the de minimis rule should not apply to class action lawsuits.  After all, the whole purpose of the class action device is “to provide[] small claimants with a method of obtaining redress for claims which otherwise would be too small to warrant individual litigation.”  Bell v. Beneficial Consumer Discount Co., 348 A.2d 734, 737 (Pa. 1975); see also Kelly v. County of Allegheny, 546 A.2d 608, 612-13 (Pa. 1988) (class action rules reflect “longstanding public policy of this Commonwealth to permit the aggregation of small claims which otherwise could not be litigated in individual actions”); see, e.g., Braun v. Wal-Mart Stores, Inc., 106 A.2d 656 (Pa. 2014) (affirming class action that enabled thousands of Pennsylvania workers to recover wages associated with missed breaks).  Thus, as the Troester Court explained:

the modern availability of class action lawsuits undermines to some extent the rationale behind a de minimis rule with respect to wage and hour actions.  The very premise of such suits is that small individual recoveries worthy of neither the plaintiff’s nor the court’s time can be aggregated to vindicate an important public policy.

421 P.3d at 1123-24.

The above reasoning makes good sense and is entirely consistent with this Court’s class action jurisprudence.  See Kelly, 546 A.2d at 613 (in class action where class member payments averaged $13.61, Court observed: “A class action on behalf of over 10,000 public employees who allege that they have been wrongfully subjected to a 25% charge against their sick benefits by their employer is not ‘trivial’ or de minimis.”).

Second, when a group of workers seeks unpaid wages, the de minimis rule should apply only if the group’s aggregate uncompensated time is trivial.  Some federal courts have taken this approach to the FLSA’s de minimis rule. See, e.g., Aguilar v. Management & Training Corp., 948 F.3d 1270 (10th Cir. 2020); Bagoue v. Developmental Pathways, Inc., 2019 WL 4597869, 2019 U.S. Dist. LEXIS 162007 (D. Colo. Sept. 23, 2019).

Third, when an individual employee seeks unpaid wages based on a recurring practice, the de minimis rule should apply only if the individual employee’s aggregate uncompensated time is trivial.  See, e.g., 29 C.F.R. § 785.47 (“An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.”).  As the Troester Court explained:

An employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job may not evade the obligation to compensate the employee for that time by invoking the de minimis doctrine.  As the facts here demonstrate, a few extra minutes of work each day can add up.  According to the Ninth Circuit, Troester is seeking payment for 12 hours and 50 minutes of compensable work over a 17-month period, which amounts to $ 102.67 at a wage of $ 8 per hour. That is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares.  What Starbucks calls “de minimis” is not de minimis at all to many ordinary people who work for hourly wages.

Id.

The facts underlying this appeal demonstrate the same point.  While the parties vigorously dispute the amount of uncompensated time associated with the mandatory security screenings, “no party disputes that [Amazon] did not compensate their employees for the time it took to wait in line for and undergo these security screenings.”  Appx. C at 3.  Thus, even if, as Amazon suggests, the time associated with the screenings averaged only 3 minutes per shift (and, to be clear, Heimbach/Salasky contend the average times exceed 3 minutes), Heimbach, who Amazon claims worked 494 separate shifts, see R.95a-96a, would have incurred a total of 1,482 screening time minutes (494 shifts X 3 minutes), which translates to 24.7 hours.

Fourth, any employer invoking the de minimis rule should be required to definitively prove that the uncompensated time is incapable of being measured or estimated.  As previously discussed, the FLSA’s de minimis rule originated in the U.S. Supreme Court’s’ 1946 Anderson opinion.  See pp. 33-34 supra.  However, as recognized in Troester,

many of the problems in recording employee worktime discussed in Anderson 70 years ago, when time was often kept by punching a clock, may be cured or ameliorated by technological advances that enable employees to track and register their worktime via smartphones, tablets, or other devices.  We are reluctant to adopt a rule purportedly grounded in “the realities of the industrial world” (Anderson, supra, 328 U.S. at p. 692) when those realities have been materially altered in subsequent decades.

421 P.3d at 1124.  The Troester Court further observed:

We recognize that one of the main impetuses behind the de minimis doctrine in wage cases is “the practical administrative difficulty of recording small amounts of time for payroll purposes.”  (Lindow, supra, 738 F.2d at p. 1062; see 29 C.F.R. § 785.47 (2018) [insignificant periods of time “which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded”].)  But employers are in a better position than employees to devise alternatives that would permit the tracking of small amounts of regularly occurring worktime. . . .  Moreover, as noted, technological advances may help with tracking small amounts of time. An employer may be able to customize and adapt available time tracking tools or develop new ones when no off-the-shelf product meets its needs.  And even when neither a restructuring of work nor a technological fix is practical, it may be possible to reasonably estimate worktime – for for example, through surveys, time studies, or . . . a fair rounding policy – and to compensate employees for that time.  Under the circumstances of this case, we decline to adopt a rule that would require the employee to bear the entire burden of any difficulty in recording regularly occurring worktime.

Id. at 1125.

In sum, even if this Court decides to endorse a PMWA de minimis rule, it should set limits ensuring that the rule is narrowly tailored to those rare circumstances in which work time truly is insignificant and immeasurable.

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