Roberts v. State

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

CLINTON ROBERTS, et al., Plaintiffs/Appellants,

v.

STATE OF ARIZONA, Defendant/Appellee.

No. 1 CA-CV 20-0060
FILED 3-2-2021

Appeal from the Superior Court in Maricopa County
No. CV2019-005879
The Honorable Teresa A. Sanders, Judge

REVERSED AND REMANDED

COUNSEL

Napier, Coury & Baillie, P.C., Phoenix
By Michael Napier, Juliana B. Tallone
Counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Phoenix
By Kirstin Story, John Fry
Counsel for Defendant/Appellee
 ROBERTS, et al. v. STATE
Opinion of the Court

OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Chief Judge Peter B. Swann
joined.

W I N T H R O P, Judge:

¶1 Clinton Roberts and Donna Christopher-Hall, on behalf of
themselves and other similarly situated corrections officers (“the Officers”),
filed a complaint alleging their employer, the State of Arizona, violated
Arizona Revised Statutes (“A.R.S.”) section 23-392 by failing to pay
overtime compensation for time they were required to spend undergoing
“extensive security screenings” for each shift. We hold that the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 207, does not preempt the Officers’
claim and that the Officers alleged sufficient facts to defeat a motion to
dismiss for their overtime claim under applicable statutes and regulations.
Accordingly, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶2 The Officers work for the Arizona Department of Corrections.
Before they begin a shift, they are required to undergo an “extensive
security screening” that adds an average of thirty minutes to each eight-
hour workday. The Officers allege A.R.S. § 23-392 requires the State to pay
them overtime for the mandatory screening time and they seek treble
damages under A.R.S. § 23-355.

¶3 The State moved to dismiss the complaint, arguing that claims
for overtime pay must be brought under the FLSA, which the State
contended preempts the state law claims. Alternatively, the State argued
that the Arizona statute must be interpreted consistently with the FSLA, as
amended by the Portal-to-Portal Act (“Portal Act”), 29 U.S.C. §§ 251-262,
and relevant federal regulations, which the State contends render the
screenings not compensable. The Officers countered that their state-law
claim was not preempted because they cannot bring an FLSA claim against
the State due to sovereign immunity. The Officers also argued that Arizona
has not adopted the Portal Act, and, under Arizona’s expansive definition
of “work,” the time spent in mandatory security screenings is compensable.
While the motion to dismiss was pending, the Officers requested leave to

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file a second amended complaint to more accurately describe the class and
assert a claim for an additional year of overtime.

¶4 The superior court granted the motion to dismiss, finding that
although federal law did not preempt the Officers’ claim, Arizona had
implicitly adopted the Portal Act. The court concluded, based on the Portal
Act, the applicable regulations, and the Supreme Court decision in Integrity
Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014), that the time the Officers
spend in security screenings is not compensable. The court denied the
Officers’ motion to file a second amended complaint and motion for
reconsideration. The Officers filed a timely notice of appeal, and we have
jurisdiction under A.R.S. § 12-2101(A)(3).1

ANALYSIS

¶5 The dismissal of a complaint under Arizona Rule of Civil
Procedure (“Rule”) 12(b)(6) is reviewed de novo. Coleman v. City of Mesa, 230
Ariz. 352, 355, ¶ 7 (2012). A complaint should be dismissed “under Rule
12(b)(6) only if ‘as a matter of law [] plaintiffs would not be entitled to relief
under any interpretation of the facts susceptible of proof.’” Id. at 356, ¶ 8
(quoting Fid. Sec. Life Ins. Co. v. Ariz. Dep’t of Ins., 191 Ariz. 222, 224, ¶ 4
(1998)). In considering a Rule 12(b)(6) motion, “courts must assume the
truth of all well-pleaded factual allegations and indulge all reasonable
inferences from those facts, but mere conclusory statements are
insufficient.” Id. at ¶ 9.

I. Preemption

¶6 Under the FLSA, employers must pay employees a minimum
wage and overtime compensation for each hour worked in excess of forty
hours in one workweek. 29 U.S.C. §§ 206, 207; Busk, 574 U.S. at 31. Arizona
law similarly entitles certain public employees to overtime compensation
for each hour worked in excess of forty hours in one workweek. A.R.S.

1 The court dismissed the complaint without prejudice, but that ruling
does not deprive this court of appellate jurisdiction. The dismissal was
based on a legal ruling, and the superior court then denied the Officers’
motion to amend the complaint. Because the court’s ruling on an issue of
law effectively mooted any attempt the Officers might make to amend their
complaint, the court should have dismissed the complaint with prejudice,
not without. See Bank of N.Y. Mellon v. Dodev, 246 Ariz. 1, 7, ¶ 19 (App. 2018)
(“[A] dismissal without prejudice is only appealable if the dismissal results
in finality.”).

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§§ 23-391, -392(A) (applying to “any person engaged in law enforcement
activities”).

¶7 The superior court rejected the State’s contention that the
FLSA preempted the Officers’ claims under A.R.S. § 23-392. On appeal, the
State reasserts its preemption argument. As a preliminary matter, the
Officers argue that we lack jurisdiction to consider this argument because
the State did not file a cross-appeal.

¶8 A cross-appeal is not necessary if an “appellee in its brief
seeks only to support or defend and uphold the judgment of the lower court
from which the opposing party appeals.” CNL Hotels & Resorts, Inc. v.
Maricopa Cnty., 230 Ariz. 21, 25, ¶ 20 (2012) (quoting Maricopa Cnty. v. Corp.
Comm’n, 79 Ariz. 307, 310 (1955)). If successful, the State’s preemption
argument would constitute an alternative ground on which this court could
affirm the judgment from which the Officers appeal. Further, the State
made the same preemption argument in its motion to dismiss that it raises
now. Thus, the issue of preemption is properly before this court without
need for a cross-appeal. See Gila River Indian Cmty. v. Dep’t of Child Safety,
242 Ariz. 277, 280, ¶ 9 (2017). The asserted federal preemption of a state law
claim is a legal issue that we review de novo. Dashi v. Nissan N. Am., Inc.,
247 Ariz. 56, 58, ¶ 5 (App. 2019).

¶9 Federal preemption can be express or implied. Id. at ¶ 8. In
determining whether a federal statute preempts a state claim,
“[c]ongressional intent is the touchstone.” Id. at ¶ 7 (citing Cipollone v.
Liggett Grp., Inc., 505 U.S. 504, 516 (1992)). “There is a presumption against
preemption, based on ‘the assumption that the historic police powers of the
States were not to be superseded . . . unless that was the clear and manifest
purpose of Congress . . . .’” Id. (quoting Wyeth v. Levine, 555 U.S. 555, 565
(2009)).

¶10 Under the theory of implied preemption, a claim may be
preempted “where the state law stands as an obstacle to the
accomplishment of the full purposes and objectives of Congress.”
Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988) (quoting Cal.
Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 581 (1987)). The purpose
of the FLSA is to provide minimum protection to workers from
“substandard wages and oppressive working hours.” Williamson v. Gen.
Dynamics Corp., 208 F.3d at 1144, 1150 (9th Cir. 2000) (quoting Adair v. City
of Kirkland, 185 F.3d 1055, 1059 (9th Cir. 1999)). The purpose of A.R.S. § 23-
392 is similar. See Pijanowski v. Yuma Cnty., 202 Ariz. 260, 264, ¶¶ 16-17
(App. 2002) (stating the primary purpose of A.R.S. § 23-392 is to authorize

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overtime compensation to law enforcement personnel and to discourage
routine use of extended overtime). Thus, the Arizona statute does not
conflict with or impede the objectives of the FLSA.

¶11 In its argument, the State relies on Williamson v. General
Dynamics Corp., which held that “[c]laims that are directly covered by the
FLSA (such as overtime and retaliation disputes) must be brought under
the FLSA.” 208 F.3d at 1154. However, this statement fails to support the
State’s contention that the FLSA preempts a state overtime claim under
A.R.S. § 23-392.

¶12 In Williamson, employees sued in California state court,
alleging a state claim for “career fraud” by their employer. Id. at 1147-48.
The employer removed the case to federal court on diversity grounds, and
the district court ruled the FLSA preempted the state fraud claims. Id. at
1148-49, 1151. The Ninth Circuit disagreed, holding the state claims were
not preempted because they did not conflict with the purpose of the FLSA.
Id. at 1153-54. The court contrasted the employees’ “career fraud” claims
with claims for overtime, which would be preempted but which they had
abandoned on appeal. Id.

¶13 The Arizona district court reached the same conclusion in
Colson v. Avnet, Inc., 687 F. Supp. 2d 914, 923-24 (D. Ariz. 2010). In Colson,
the plaintiff brought FLSA claims and sought treble damages under
Arizona’s wage law, arguing that by failing to comply with the overtime
provisions in the FLSA, the employer violated A.R.S. § 23-351, which
requires an employer to pay overtime compensation within mandated time
periods. Id. at 918-19.

¶14 In determining that the FLSA preempted the state wage claim,
the Colson court adopted the reasoning in Wood v. TriVita, Inc., CV-08-0765-
PHX-SRB, 2008 WL 6566637, at *3-4 (D. Ariz. Sept. 18, 2008), another
Arizona district court case addressing whether the FLSA preempts a claim
brought under Arizona’s wage laws. Colson, 687 F. Supp. 2d at 923-24. Both
cases held that “overtime claims that are directly covered by the FLSA must
be brought under the FLSA.” Id. at 924 (quoting Wood, 2008 WL 6566637, at
*4). Allowing such claims would “stand as an obstacle to the
accomplishment and execution of the full purposes of the objectives of
Congress in enacting the FLSA.” Id. (quoting Wood, 2008 WL 6566637, at
*4); see also Anderson v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir. 2007)
(“Congress prescribed exclusive remedies in the FLSA for violations of its
mandates.”).

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¶15 These cases do not apply here because in each case, the
plaintiffs relied on the FLSA as the source of their rights and invoked state
law only as the remedy for the FLSA violation. “By contrast, plaintiffs here
do not seek to enforce rights conferred under the FLSA through state-law
remedies; they seek instead to enforce rights granted by independent state
employment laws . . . .” Knepper v. Rite Aid Corp., 675 F.3d 249, 263 (3d Cir.
2012). This is consistent with the FLSA savings clause, which authorizes
states to enact laws that provide the same or additional protections for
employees as those provided in the FLSA and demonstrates that Congress
did not intend the FLSA to be an employee’s exclusive remedy for wage and
overtime violations. See 29 U.S.C. § 218(a); Williamson, 208 F.3d at 1151.

¶16 The weight of authority holds that the FLSA does not preempt
a claim to enforce a more favorable state minimum wage or overtime law.
See Knepper, 675 F.3d at 262-63; Overnite Transp. Co. v. Tianti, 926 F.2d 220,
222 (2d Cir. 1991) (citing cases); Tegtmeier v. PJ Iowa, L.C., 189 F. Supp. 3d
811, 820-23 (S.D. Iowa 2016); Butler v. DirectSat USA, LLC, 800 F. Supp. 2d
662, 671-72 (D. Md. 2011).

¶17 Accordingly, we hold the FLSA does not preempt the
Officers’ state law claims for overtime compensation.

II. The Portal Act and Arizona Law

¶18 In deciding the time spent in mandatory security screenings
is not a compensable activity, the superior court concluded that Arizona
has “implicitly adopted” the Portal Act as the law of Arizona because (1)
A.R.S. § 23-392(A) is substantially similar to the FLSA § 207(a)(1), and (2)
the Arizona regulation addressing overtime pay incorporates the FLSA and
federal regulations defining “workweek” and “work period.” See Ariz.
Admin. Code (“A.A.C.”) R2-5A-404(A). We review the interpretation of
statutes and regulations de novo. Compassionate Care Dispensary, Inc. v. Ariz.
Dep’t of Health Servs., 244 Ariz. 205, 211, ¶ 17 (App. 2018).

¶19 Section 23-392(A) provides that law enforcement officers,
including corrections officers, shall be paid overtime for work in excess of
forty hours a week “if by the person’s job classification overtime
compensation is mandated by federal law.” When interpreting a statute,
our objective is to “effectuate the legislature’s intent,” and the “best
indicator of that intent is the statute’s plain language.” SolarCity Corp. v.
Ariz. Dep’t of Revenue, 243 Ariz. 477, 480, ¶ 8 (2018).

¶20 The Officers contend the phrase “is mandated by federal law”
relates to whether a person’s job classification entitles them to overtime, i.e.,

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whether they are considered exempt under federal law. See 29 U.S.C. § 213.
But the text of the statute plainly requires the State to pay overtime when
federal law would require payment of overtime. Such interpretation is
supported by Hockersmith v. City of Patagonia, 123 Ariz. 559 (App. 1979), in
which the court considered whether a police officer was entitled to overtime
for the time he slept during a 24-hour on-call shift. Although the court did
not expressly hold that federal law was controlling, its analysis relied solely
on cases that decided whether an activity was compensable under the
FLSA, as amended by the Portal Act. Id. at 561.

¶21 This interpretation of the Arizona statute is also consistent
with the Arizona Administrative Code regulations that apply A.R.S. § 23-
392, which refer to federal regulations issued under the FLSA. Subsection
R2-5A-404(C)(1) expressly states that overtime for public employees
consists of all hours in excess of forty hours in a “workweek” or “work
period as defined by the FLSA.” (Emphasis added.) Additionally, A.A.C. R2-
5A-404(A) incorporates two federal regulations, 29 C.F.R. pts. 553 and 778,
to define a workweek or work period under Arizona law. See 29 C.F.R.
§§ 553.221(b) (“[Compensable] time includes all pre-shift and post-shift
activities which are an integral part of the employee’s principal activity or
which are closely related to the performance of the principal activity . . . .”),
778.320(b) (citing the Portal Act as source to determine whether an activity
is compensable). Parts 553 and 778, in turn, refer to 29 C.F.R. pts. 785 and
790 to determine what constitutes compensable work hours. See, e.g., 29
C.F.R. §§ 553.221(a), 778.103, 778.223. Notably, Part 785 interprets the Portal
Act and its exclusion of preliminary and postliminary activities, absent
contract, custom, or practice to the contrary. See 29 C.F.R.
§ 785.9(a).

¶22 The Officers argue that because A.A.C. R2-5A-404(A)(1) only
refers to 29 C.F.R. pts. 553 and 778, we cannot infer that it implicitly adopts
Parts 785 and 790 under the rule of statutory construction that “[t]he
expression of one or more items in a class generally indicates an intent to
exclude all items of the same class that are not expressed.” In re Estate of
Agans, 196 Ariz. 367, 370, ¶ 16 (App. 1999). But we presume that when
drafting the regulations, the director knew that 29 C.F.R. pts. 553 and 778
referred—more than once—to Parts 785 and 790. See Daou v. Harris, 139
Ariz. 353, 357 (1984) (courts presume that the legislature knows the existing
laws when it passes a statute).

¶23 The Officers argue the Arizona regulations are not decisive;
they contend that any decision to adopt the Portal Act is for the legislature,
not an administrative agency. But this argument fails to recognize that the

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Arizona Legislature amended A.R.S. §§ 23-391 and -392 to include the
phrase “is mandated by federal law” in 1986, long after enactment of the
Portal Act in 1947. See 1986 Ariz. Sess. Laws, ch. 218, §§ 1-2 (2d Reg. Sess.);
Portal-to-Portal Act of 1947, ch. 52, § 4, 61 Stat. 86. In determining whether
an activity is compensable for the purposes of overtime, the Portal Act and
the FLSA are equally part of federal law. There is no distinction in A.R.S.
§§ 23-391 and -392 between incorporating the FLSA and incorporating the
Portal Act.

¶24 Moreover, the legislature explicitly authorized the director of
the Department of Administration to adopt rules and procedures regarding
the administration of state personnel. A.R.S. § 41-743(B). We presume the
legislature is aware of the administrative regulations the director issued,
and it has not modified or revoked any of the references to federal law in
those regulations.

¶25 The federal regulations provide comprehensive guidance in
interpreting the FLSA, as amended by the Portal Act. Although A.R.S. § 23-
392 and the applicable state regulations do not expressly refer to the Portal
Act, we conclude that the explicit reference to “federal law” in that section
along with the express incorporation of C.F.R. pts. 553 and 778 allow for
reference to Parts 785 and 790 for guidance. See A.A.C. R2-5A-404(A)(1).
As the Officers point out, Parts 778, 785, and 790 are interpretative bulletins,
not regulations. See 29 C.F.R. §§ 778.1(a), 785.2, 790.1(c). These
interpretations are not controlling but are “‘entitled to respect’ . . . to the
extent that those interpretations have the ‘power to persuade.’” Christensen
v. Harris Cnty., 529 U.S. 576, 587 (2000) (quoting Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944)); see also 29 C.F.R. §§ 775.1 (advisory interpretations
provide guidance to the administrator unless courts rule otherwise), 785.2
(recognizing courts make final interpretations of the FLSA and that
regulations in this part are intended as a “practical guide” as to how the
administrator will apply the FLSA (quoting Skidmore, 323 U.S. at 138)).

¶26 Finally, the Officers argue that we should follow In re
Amazon.com, 905 F.3d 387, 404-05 (6th Cir. 2018), which concluded that
Arizona law was inconsistent with the Portal Act because A.A.C. R20-5-
1202(9) and (12) defined “hours worked” and “on duty” more broadly than
the federal regulations. The court also quoted an advisory policy statement
from the Industrial Commission of Arizona2 that to determine “hours

2 Indus. Comm’n of Ariz., Substantive Policy Statement Regarding
Interpretation of “Hours Worked” for Purposes of the Arizona Minimum

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worked” under A.R.S. § 23-364(A), the Commission will look to 29 C.F.R. pt.
785 for guidance “where consistent with A.A.C. R20-5-1201 et seq.” In re
Amazon.com, 905 F.3d at 405. But these regulations and the policy statement
apply to wage claims by private employees, not claims by public employees.
See A.A.C. R20-5-1202(1); A.R.S. §§ 23-362(A)-(B) (version 2),3 -371(F)-(G).
Thus, the court’s holding in In re Amazon.com does not apply to claims
brought under A.R.S. § 23-392.

¶27 We conclude that, under A.R.S. § 23-392, whether a public
employee is entitled to overtime for performing an activity is guided by
federal law, specifically the FLSA as amended by the Portal Act. The
Arizona regulations are consistent with the Arizona statute. Thus, we need
not decide whether Arizona has implicitly “adopted” the Portal Act by
administrative regulation alone.

III. Compensable Activities

¶28 The FLSA requires an employer to pay overtime
compensation for all work in excess of forty hours in a workweek. 29 U.S.C.
§ 207. The statute does not, however, define “work” or “workweek.” In
response to earlier Supreme Court cases that defined those terms
expansively, Congress enacted the Portal Act, which created two exclusions
from the definition of “work.” See 29 U.S.C. §§ 251-262; Busk, 574 U.S. at 31-
32. The Portal Act excludes time an employee spends:

(1) walking, riding, or traveling to and from the actual place
of performance of the principal activity or activities which
such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to said
principal activity or activities,

which occur either prior to the time on any particular
workday at which such employee commences, or subsequent

Wage Act (Aug. 16, 2007), https://www.azica.gov/sites/default/
files/migrated_pdf/Labor_MinWag_SubstantivePolicyHoursWorked_000
1140.pdf.

3 Two statutes numbered § 23-362 appear in the code, one titled
“Minimum wage; prohibition” in Article 7 of Chapter 2 of Title 23 and the
second titled “Definitions” in Article 8 of the same chapter. Our reference
to § 23-362 in this opinion refers to the latter, which we describe as “version
2” for clarity. Cf. A.A.C. R20-5-1202.

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to the time on any particular workday at which he ceases,
such principal activity or activities.

29 U.S.C. § 254(a).

¶29 Since enactment of the Portal Act, the Supreme Court “has
consistently interpreted ‘the term “principal activity or activities” [to]
embrac[e] all activities which are an “integral and indispensable part of the
principal activities.”’” Busk, 574 U.S. at 33 (quoting IBP, Inc. v. Alvarez, 546
U.S. 21, 29-30 (2005) (quoting Steiner v. Mitchell, 350 U.S. 247, 252-53 (1956))).
An activity is “integral and indispensable to the principal activities that an
employee is employed to perform if it is an intrinsic element of those
activities and one with which the employee cannot dispense if he is to
perform his principal activities.” Id.

¶30 In Busk, the Court considered the compensability of time that
retail warehouse employees spent waiting to undergo and undergoing
mandatory security screenings at the end of each shift. Id. at 29. The Court
compared the activities of employees in several other cases. The Court cited
Steiner, which considered “the time battery-plant employees spent
showering and changing clothes because the chemicals in the plant were
‘toxic to human beings’ and the employer conceded” these activities were
indispensable and integral to the employees’ “productive work.” Id. at 34
(quoting Steiner, 350 U.S. at 249, 251). The Court also cited Mitchell v. King
Packing Co., 350 U.S. 260 (1956), which concluded that the time meatpacking
employees spent sharpening their knives was compensable because dull
knives would be detrimental to production and product quality, “‘cause
waste,’ and lead to ‘accidents.’” Busk, 574 U.S. at 34 (quoting King Packing
Co., 350 U.S. at 262).

¶31 Conversely, the “time poultry-plant employees spent waiting
to don protective gear” was not compensable because “waiting was ‘two
steps removed from the productive activity on the assembly line.’” Id.
(emphasis added) (quoting IBP, 546 U.S. at 42).4 Busk noted that the federal
regulations are consistent with these cases, highlighting one regulation
example that explains if changing clothes is a mere convenience and not
directly related to the principal activities, it is not compensable. 574 U.S. at
34 (citing 29 C.F.R. § 790.8(c)).

4 The employer in IBP conceded that the time spent changing was
“integral and indispensable” to the employees’ principal activity and only
disputed time spent waiting to change. IBP, 546 U.S. at 32, 40.

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¶32 The State contends this case is controlled by Busk, which held
the retail workers’ post-shift security screenings were not compensable. Id.
at 35. That Busk involved security screenings is not dispositive. The
appropriate analysis focuses on the work the employee is hired to perform,
which in Busk was primarily retrieving retail products and packaging them
for shipment. Id. The test is not simply whether an employer requires the
activity; that would be inconsistent with the Portal Act and overly broad.
Id. at 36. Rather, the test for compensability is whether the activity is “one
with which the employee cannot dispense if he is to perform his principal
activities.” Id. at 33. The Court in Busk concluded that a security screening
at the end of each shift was not integral or indispensable to the warehouse
workers’ principal activities. Id. at 37. Applying the same analysis, we must
consider the Officers’ principal activities.

¶33 The first amended complaint does not describe the principal
activities that corrections officers are employed to perform. While it is
technically accurate that the Officers are not employed to undergo security
screenings, see id. at 35, the first amended complaint alleges that the mission
of the Department of Corrections is to operate secure and orderly prisons
and that preventing the introduction of contraband furthers that mission.
It is reasonable to infer that the Officers’ duties include maintaining the
safety and security of the prisons. See Cullen v. Auto-Owners Ins. Co., 218
Ariz. 417, 419, ¶ 7 (2008) (holding that on a motion to dismiss, courts must
indulge all reasonable inferences from the well-pled factual allegations in a
complaint).

¶34 In considering whether the security screenings are integral to
the Officers’ principal activities, we are persuaded by Aguilar v. Management
& Training Corp., 948 F.3d 1270 (10th Cir. 2020), which held that the time
corrections officers spent undergoing pre-shift security screenings was
compensable. The employer in Aguilar required the screenings “to ensure
‘the overall safety of the prison’ and to prevent officers from inadvertently
or intentionally bringing contraband like weapons or cell phones into the
prison.” Id. The court distinguished the post-shift theft-prevention
screening at issue in Busk because it had “no connection at all” to the work
the warehouse employees performed. Id. at 1277-78.

¶35 Like the security screenings in Aguilar, the pre-shift security
screenings here are inherently related to the Officers’ work of providing a
secure prison and preventing the introduction of contraband. “Indeed, the
security screening and the officers’ work share the same purpose.” Id. at
1278.

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¶36 The State contends that because the Officers could perform
their work without undergoing the security screening, the screenings are
not indispensable to their work. We disagree. The same could be said
about the meat packing employees who had to sharpen their knives in King
Packing Co., 350 U.S. at 262, and the chemical plant employees who spent
time showering and changing out of toxic clothing in Steiner, 350 U.S. at
248-49. The screenings are indispensable to the Officers’ “productive
work.” See id. at 251. Accordingly, eliminating the screenings would impair
the Officers’ ability to perform this work. See Busk, 574 U.S. at 35; id. at 37-
38 (Sotomayor, J., concurring) (“[A]n activity is ‘indispensable’ to another,
principal activity only when an employee could not dispense with it without
impairing his ability to perform the principal activity safely and effectively.”
(emphasis added)); see also Aguilar, 948 F.3d at 1279.

¶37 The security screening process is integral and indispensable
to the Officers’ principal, compensable activities of maintaining safe and
secure prisons; therefore, the screenings constitute the start of the Officers’
workday. See Aguilar, 948 F.3d at 1279 (citing IBP, 546 U.S. at 28).5 Based
on the foregoing, we construe A.R.S. § 23-392 and the related administrative
regulations to require that the Officers’ time spent in security screenings—
as alleged by the Officers—is compensable and thus subject to proper
overtime compensation.6

CONCLUSION

¶38 We reverse the order dismissing the complaint and remand
for further proceedings consistent with this decision. The Officers are

5 The Officers also cite Hootselle v. Missouri Department of Corrections,
which held that corrections officers’ pre- and post-shift activities were
“integral and indispensable” to the principal activities for which they were
hired and, therefore, compensable. WD 82229, 2019 WL 4935933, at *3 (Mo.
Ct. App. Oct. 8, 2019) (appeal docketed Feb. 4, 2020). But the employer in
Hootselle did not dispute that the officers were “on duty” during these pre-
and post-shift activities. Id. The Supreme Court of Missouri held oral
argument on this case in April 2020 and as of this writing has not issued a
decision. Hootselle v. Mo. Dep’t of Corr., SC98252 (Mo. argued Apr. 22, 2020).
Given the factual distinction and the case’s current disposition, Hootselle is
not persuasive.
6 In light of our decision, we need not address whether the superior
court’s refusal to allow plaintiffs to file a second amended complaint was
an abuse of discretion.

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entitled to taxable costs on appeal under A.R.S. § 12-342 upon compliance
with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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