RENDERED: SEPTEMBER 3, 2021, 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1457-MR
MARION HUGHES; JAMES A.
CRUME; PHILLIP L. WESTERN;
RAYMOND S. BATTS; AND TERRI
A. ROGERS APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MITCH PERRY, JUDGE
ACTION NO. 07-CI-009996
UPS SUPPLY CHAIN SOLUTIONS,
INC.; UNITED PARCEL SERVICE,
INC.; AND DEFENDANTS JOHN
DOE 1-10 APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, LAMBERT, AND L. THOMPSON, JUDGES.
LAMBERT, JUDGE: Marion Hughes, Raymond S. Batts, James A. Crume, Terri
A. Rogers, and Phillip L. Western, As Lead Plaintiffs for the Class (hereinafter
“the Class”) have appealed from the April 26, 2019, order of the Jefferson Circuit
Court granting the motion by UPS Supply Chain Solutions, Inc., and UPS, Inc.
(hereinafter “UPS”), for a judgment on the pleadings and dismissing the Unpaid
Wages class claim. We affirm.
This claim has been before the Court on three earlier appeals, albeit
related to class certification. For the factual and procedural history underpinning
the present appeal, we shall rely upon the applicable portions of our prior opinion
in the third appeal, UPS Supply Chain Sols., Inc. v. Hughes, No. 2014-CA-001496-
ME, 2018 WL 3602262 (Ky. App. Jul. 27, 2018):
Kentucky’s Wages and Hours Act, Kentucky
Revised Statutes (KRS) Chapter 337, allows a plaintiff
who is not compensated by his or her employer for
performing tasks which are compensable to recover
payment for the time spent performing such tasks – along
with liquidated damages and attorney’s fees. KRS
337.385. In 2007, the appellees filed a putative class
action against UPS. In their complaint, they alleged that
they and other employees of UPS were required to enter
workplace facilities through mandatory security
checkpoints before clocking in and to exit through the
security checkpoints after clocking out each day. The
appellees alleged that they were not paid wages for time
spent at the security checkpoints and that UPS violated
Kentucky’s Wages and Hours Act by failing to
compensate employees for work time. The appellees
filed a motion for class certification. The proposed class
was defined as consisting of all nonexempt UPS
employees employed in the Commonwealth during the
applicable limitations period.
....
-2-
By order entered July 27, 2012, the circuit court
denied the purported class representatives’ motion for
class certification. They filed a notice of appeal.
Thereafter, the purported class representatives filed
a motion to amend, seeking to certify a more limited
class. The new putative class was defined as all
nonexempt UPS employees who worked at the following
locations: Elizabethtown, Louisville, Technical &
Logistics Center, and Worldport during the applicable
limitations period.
By opinion and order entered October 9, 2012, the
circuit court concluded that the more limited class also
failed to meet the prerequisites and conditions of the
rules of procedure governing class actions.
Consequently, the court declined to certify the limited
class. A second notice of appeal was filed. The appeals
were consolidated by an order of this Court entered on
November 27, 2012.
In an unpublished opinion rendered on September
6, 2013, this Court held that the circuit court had not
erred by denying class certification in its order
concerning the more broadly defined class. An affidavit
of a UPS Security Director indicated that employees at
two UPS facilities in Kentucky were not required to pass
through mandatory security checkpoints yet were
included in the proposed class. Since employees at these
UPS facilities had not suffered an injury common to
other putative class members, we concluded that class
certification was improper. We affirmed the circuit
court’s opinion and order with respect to that appeal.
With respect to the more limited putative class, we
concluded that the circuit court had erred by concluding
that two prerequisites of [Kentucky Rules of Civil
Procedure (CR)] 23.01 (commonality and typicality) of
class certification had not been met. From our review of
the record, we concluded that the security procedures and
-3-
measures implemented by UPS were common to each of
the identified UPS facilities. We also concluded that the
putative class members had alleged a common wrong and
had allegedly suffered the same injury – unpaid work
time. Consequently, we rejected the circuit court’s
conclusion that the putative class failed to meet the
commonality prerequisite of class certification.
Furthermore, we concluded that the claims of the
putative class representatives and the proposed class
members were based upon a substantially similar course
of conduct by UPS (mandatory security procedures at the
facilities) and upon the same legal theory (violation of
the Kentucky Wages and Hours Act). Consequently, we
rejected the circuit court’s conclusion that the more
limited putative class failed to meet the typicality
prerequisite for class action certification.
We vacated the circuit court’s order denying class
certification of the more narrowly defined class and
remanded the matter for further proceedings. Upon
remand, we instructed the circuit court to determine
whether the limited class satisfied the remaining
prerequisites for class certification pursuant to two other
provisions of CR 23.01 – numerosity and adequacy of
representation. We instructed the circuit court to deny
class certification if it concluded that the limited class
failed to satisfy either the numerosity or adequacy of
representation prerequisite. However, if the circuit court
determined that the limited class satisfied each additional
prerequisite, we instructed it to determine whether the
proposed limited class fulfilled any one of three
conditions set forth in CR 23.02. If the circuit court
determined that the proposed limited class satisfied any
one of the three conditions provided by the civil rule, we
directed it to certify the proposed class. In its order
remanding, the previous panel of this Court held and
instructed as follows:
-4-
[W]e hold that the circuit court erred by
determining that the limited class did not
fulfill the prerequisites of commonality and
typicality under CR 23.01(b) and (c). As the
circuit court so erred, we vacate the October
9, 2012, opinion and order and remand for
the circuit court to determine whether the
limited class satisfies the additional
prerequisites of CR 23.01(a) and (d). These
prerequisites are the numerosity prerequisite
of CR 23.01(a) and the adequacy of
representation prerequisite of CR 23.01(d).
If the circuit court concludes that the limited
class fails to satisfy either prerequisite as set
forth in CR 23.01(a) or (d), the circuit court
shall deny class certification. Conversely, if
the circuit court determines that the limited
class satisfies both prerequisites of CR
23.01(a) and (d), the circuit court shall then
determine if the limited class fulfills any one
of the three conditions set forth in CR 23.02.
If the circuit court decides that the class fails
to satisfy all three conditions of CR 23.02,
the class certification shall be denied.
However, if the limited class satisfies at
least one of the three conditions of CR
23.02, the circuit court shall certify the
limited class.
2012-CA-001353-ME, 2013 WL 4779746, at *6 (Ky.
App. Sept. 6, 2013).
Upon remand, UPS filed a motion for judgment on
the pleadings. UPS contended that the unpaid wages
claims of the proposed class members could not be
pursued through a class action because the provisions of
Kentucky’s Wages and Hours law did not permit such
actions. In support of its position, UPS relied upon dicta
included in our unpublished opinion, Toyota Motor Mfg.,
Kentucky, Inc., v. Kelley, 2012-CA-001508-ME, 2013
-5-
WL 6046079 (Ky. App. Nov. 15, 2013). In Kelley, we
observed that if we were required by the facts of the case
to decide whether a class action were available for claims
brought under the provisions of KRS 337.385, we would
conclude that it was not. We read the text of KRS
337.385(1) as a clear expression of the intent of the
General Assembly not to permit class actions by
employees against employers for unpaid wages.
Following a hearing conducted on August 15,
2014, the Jefferson Circuit Court denied the motion of
UPS for judgment on the pleadings. The circuit court
dismissed our dicta in Kelley as nonbinding. It was not
persuaded that the provisions of Kentucky’s Wages and
Hours Act prohibit employees from pursuing relief by
way of a class action. Pursuant to our instructions, the
circuit court proceeded to consider whether the proposed
limited class satisfied the numerosity and adequacy of
representation prerequisites for class certification.
With respect to the numerosity requirement, the
circuit court observed that the proposed class numbered
more than 11,000 employees working at the identified
facilities. The court determined that given this large
number of potential plaintiffs, joinder was impracticable.
It concluded that the proposed class plainly met the
numerosity prerequisite of CR 23.01.
Next, the circuit court considered whether the
adequacy of representation requirement was met. The
circuit court observed that there did not appear to be a
conflict between the interests of the representative parties
and the interests of the prospective class. It found that
counsel for the putative class was qualified and could be
expected to prosecute the interests of the class
vigorously. Consequently, it concluded that the
adequacy of representation prerequisite of CR 23.01 had
been satisfied.
-6-
Having determined that the putative class satisfied
each of these prerequisites, the circuit court next
considered whether the proposed limited class fulfilled
any one of three conditions established by the provisions
of CR 23.02. The circuit court found that the questions
of law or fact common to the members of the proposed
class predominate over any questions affecting only
individual members and that a class action is superior to
other available methods for the fair and efficient
adjudication of the controversy. These findings
comported with the requirements of CR 23.02(c).
Having determined that the proposed limited class
satisfied one of the three conditions provided by CR
23.02, the circuit court certified the putative class on
August 15, 2014. UPS then filed this appeal. Hence, the
circuit court clearly complied with our directive to it
upon remand.
Hughes, 2018 WL 3602262, at *1-3.
This Court affirmed class certification. In doing so, we relied upon
the law-of-the-case doctrine in rejecting the argument by UPS that, based upon the
recent holding of the United States Supreme Court in Integrity Staffing Solutions,
Inc. v. Busk, 574 U.S. 27, 135 S. Ct. 513, 190 L. Ed. 2d 410 (2014), “the
representative members of the putative class [had] not suffered a compensable
injury. Thus, it argue[d] that the purported class cannot be certified upon the same
bases as announced by the circuit court following our remand.” Hughes, 2018 WL
3602262 at *5. We concluded, “Finally, we note that this case has been making a
tortuous journey through the court system for more than eleven years – a shocking
-7-
reality in and of itself. It is long overdue that this matter be resolved on its merits
at last.” Id. at *6. This opinion became final on February 6, 2019.
On remand, UPS filed a renewed motion for a partial judgment on the
pleadings, arguing that the time for which the Class was seeking compensation –
time spent waiting for and undergoing security screenings – was not compensable
under Kentucky law. UPS based this argument on the United States Supreme
Court’s opinion in Integrity Staffing, supra. The type of wage and hour claim
raised here had been deemed not cognizable under the Fair Labor Standards Act
(“the FLSA”), 29 United States Code (U.S.C.) § 201 et seq., based upon the Portal-
to-Portal Act, 29 U.S.C. §251 et seq., both in Integrity Staffing and Vance v.
Amazon.com, Inc., 852 F.3d 601 (6th Cir. 2017). UPS asserted that Kentucky’s
Wage and Hour law, KRS Chapter 337, and associated regulations incorporate
Portal-to-Portal Act principles as that Chapter was meant to be interpreted
consistent with federal law.
In its response, the Class objected to the motion, arguing that KRS
Chapter 337 does not contain any reference to the FLSA’s Portal-to-Portal Act,
meaning that Kentucky had not adopted those exceptions. In reply, UPS argued
that KRS Chapter 337 and the FLSA should be interpreted consistently and that the
Portal-to-Portal Act was meant to clarify that compensable work did not include
the time an employee spent walking to and from his workstation or other
-8-
preliminary or postliminary activities, citing Tyson Foods, Inc. v. Bouaphakeo, 577
U.S. 442, 447, 136 S. Ct. 1036, 1042, 194 L. Ed. 2d 124 (2016). The holding in
Integrity Staffing, UPS argued, controlled in this case.
The court heard oral arguments from the parties in early April, and on
April 26, 2019, it entered an order granting the motion by UPS:
This matter is before the Court upon a Renewed
Motion for Partial Judgment on the Pleadings filed by
Defendants [UPS]. In their Second Amended Complaint,
Plaintiffs allege that, when they arrive at their work
facility, they are required to pass through a security
checkpoint and are not compensated for the time spent
going through security and getting to their work station.
They also allege that, after their shift is over, they are not
compensated for the time it takes to get to the exit and
pass through a security checkpoint as they leave the
facility. Defendants argue that, pursuant to Integrity
Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014),
this time is noncompensable and they are entitled to a
judgment as a matter of law.
The Kentucky Supreme Court instructs the Courts
of the Commonwealth that, “[i]n the absence of any
Kentucky cases on point, we next look to federal cases
interpreting the FLSA.” City of Louisville, Div. of Fire v.
Fire Serv. Managers Ass’n ex rel. Kaelin, 212 S.W.3d
89, 95 (Ky. 2006). Here, the U.S. Supreme Court has
analyzed the very issue that is currently confronting the
Court: whether the time employees spend walking to and
from and passing through a security checkpoint at the
beginning and end of a shift is compensable. Although
the Integrity Staffing decision involved application of the
FLSA and Portal-to-Portal Act, the Court turns to that
decision for purposes of interpreting Kentucky law
because there are no Kentucky cases on point. Kaelin,
212 S.W.3d at 95.
-9-
Although Portal-to-Portal Act language was not
included in the 1974 Act adopting the Kentucky analogue
to the FLSA, the General Assembly, when adopting the
1974 Act was not acting in a vacuum, as the Portal-to-
Portal Act was passed by Congress almost 30 years
earlier. Furthermore, the Kentucky Labor Cabinet has
issued regulations and interpretations that incorporate
Portal-to-Portal Act principles, which are “entitled to
substantial deference.” Commonwealth v. Family Home
Health Care, Inc., 98 S.W.3d 524, 527 (Ky. App. 2003).
If the General Assembly had intended to impose liability
in circumstances where there would be no liability under
the FLSA, the General Assembly would have
affirmatively so stated – just as they have done with
respect to other components of the state’s wage and hour
laws.
Even when the Court accepts all of the allegations
in the Second Amended Complaint as true, and viewing
those allegations in the light most favorable to Plaintiffs,
the Court concludes that Plaintiffs’ “Unpaid Wages”
claim is foreclosed by applicable law. Being sufficiently
advised it is ORDERED that Defendants’ Motion is
GRANTED. Plaintiffs’ “Unpaid Wages” claim is
DISMISSED WITH PREJUDICE.
The Class moved the court to clarify the April 26, 2019, order to show
that it dismissed only a narrow portion of the claim that a jury might find was
attributable to travel or, alternatively, to make that order final and appealable. It
argued that the circuit court did not address, and UPS did not seek dismissal on,
any other regulations supporting its Unpaid Wages claim under other legal
theories. In response, UPS contended that the order entirely disposed of the
Class’s Unpaid Wages claim, meaning that no clarification was necessary. It did
-10-
agree that the court should make the order final and appealable so that it could be
immediately appealed. The court scheduled a status conference for September 18,
2019, where it heard arguments from counsel. By order entered that day, it denied
the motion to clarify and granted the Class’s alternative motion to make the April
19, 2019, order final and appealable. This appeal now follows.
On appeal, the Class continues to argue that the federal Portal-to-
Portal Act has not been adopted in Kentucky and therefore cannot support the
circuit court’s ruling; that, even if it applied, the court’s dismissal was in error due
to the lack of discovery and the existence of disputed questions of material fact;
and that the court erred in preventing the Class from presenting all of its theories of
liability to a jury. We find no merit in these arguments.
This appeal arises from the circuit court’s dismissal pursuant to CR
12.03, which provides as follows:
After the pleadings are closed but within such time as not
to delay the trial, any party may move for judgment on
the pleadings. If, on such motion, matters outside the
pleading are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment
and disposed of as provided for in Rule 56, and all parties
shall be given reasonable opportunity to present all
materials made pertinent to such a motion by Rule 56.
This Court addressed the use of CR 12.03 in James v. Wilson, 95 S.W.3d 875, 883-
84 (Ky. App. 2002), explaining:
-11-
In the context of a motion to dismiss for failure to
state a claim upon which relief can be granted, . . . “[t]he
court should not grant the motion unless it appears the
pleading party would not be entitled to relief under any
set of facts which could be proved in support of his
claim.” [Pari-Mutuel Clerks’ Union v. Kentucky Jockey
Club, 551 S.W.2d 801, 803 (Ky. 1977).] In making this
decision, the circuit court is not required to make any
factual determination; rather, the question is purely a
matter of law. Stated another way, the court must ask if
the facts alleged in the complaint can be proved, would
the plaintiff be entitled to relief?
(Footnotes omitted.) See also City of Pioneer Village v. Bullitt County ex rel.
Bullitt Fiscal Court, 104 S.W.3d 757, 759 (Ky. 2003) (“[CR] 12.03 provides that
any party to a lawsuit may move for a judgment on the pleadings. The purpose of
the rule is to expedite the termination of a controversy where the ultimate and
controlling facts are not in dispute.”).
For its first argument, the Class contends that the Portal-to-Portal Act
has not been adopted into Kentucky law because that language was not specifically
adopted by the General Assembly in KRS Chapter 337. This is a question of
statutory interpretation. In Pearce v. University of Louisville, by and through its
Board of Trustees, 448 S.W.3d 746 (Ky. 2014), the Supreme Court of Kentucky
addressed the standard of review of statutory construction:
Statutory construction is an issue of law that we
review de novo. Therefore, “[t]he trial court’s and Court
of Appeals’s [sic] construction of statutes is also entitled
to no deference on appeal . . . .” Cumberland Valley
Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d
-12-
644, 647 (Ky. 2007) (citing Bob Hook Chevrolet Isuzu,
Inc. v. Kentucky Transportation Cabinet, 983 S.W.2d
488, 490 (Ky. 1998)).
In construing a statute, it is fundamental that our
foremost objective is to determine the legislature’s intent
in enacting the legislation. “To determine legislative
intent, we look first to the language of the statute, giving
the words their plain and ordinary meaning.” Richardson
v. Louisville/Jefferson County Metro Government, 260
S.W.3d 777, 779 (Ky. 2008). Further, we construe a
“statute only as written, and the intent of the Legislature
must be deduced from the language it used, when it is
plain and unambiguous . . . .” Western Kentucky Coal
Co. v. Nall & Bailey, 228 Ky. 76, 14 S.W.2d 400, 401-02
(1929). Therefore, when a statute is unambiguous, we
need not consider extrinsic evidence of legislative intent
and public policy. County Bd. of Educ. Jefferson County
v. Southern Pac. Co., 225 Ky. 621, 9 S.W.2d 984, 986
(1928). However, if the statutory language is ambiguous,
we will look to other sources to ascertain the legislature’s
meaning, such as legislative history and public policy
considerations. MPM Financial Group Inc. v. Morton,
289 S.W.3d 193, 198 (Ky. 2009). Further, we “read the
statute as a whole, and with other parts of the law of the
Commonwealth, to ensure that our interpretation is
logical in context.” Lichtenstein v. Barbanel, 322
S.W.3d 27, 35 (Ky. 2010).
Id. at 749.
In 1947, the federal Portal-to-Portal Act was enacted by Congress as a
clarification of the FLSA, which had originally been enacted in 1938. In 29 U.S.C.
§ 251, Congress included its findings and declared the policy as follows:
(a) The Congress finds that the Fair Labor Standards Act
of 1938, as amended, has been interpreted judicially in
disregard of long-established customs, practices, and
-13-
contracts between employers and employees, thereby
creating wholly unexpected liabilities, immense in
amount and retroactive in operation, upon employers
with the results that, if said Act as so interpreted or
claims arising under such interpretations were permitted
to stand, (1) the payment of such liabilities would bring
about financial ruin of many employers and seriously
impair the capital resources of many others, thereby
resulting in the reduction of industrial operations, halting
of expansion and development, curtailing employment,
and the earning power of employees; (2) the credit of
many employers would be seriously impaired; (3) there
would be created both an extended and continuous
uncertainty on the part of industry, both employer and
employee, as to the financial condition of productive
establishments and a gross inequality of competitive
conditions between employers and between industries;
(4) employees would receive windfall payments,
including liquidated damages, of sums for activities
performed by them without any expectation of reward
beyond that included in their agreed rates of pay; (5)
there would occur the promotion of increasing demands
for payment to employees for engaging in activities no
compensation for which had been contemplated by either
the employer or employee at the time they were engaged
in; (6) voluntary collective bargaining would be
interfered with and industrial disputes between
employees and employers and between employees and
employees would be created; (7) the courts of the country
would be burdened with excessive and needless litigation
and champertous practices would be encouraged; (8) the
Public Treasury would be deprived of large sums of
revenues and public finances would be seriously
deranged by claims against the Public Treasury for
refunds of taxes already paid; (9) the cost to the
Government of goods and services heretofore and
hereafter purchased by its various departments and
agencies would be unreasonably increased and the Public
Treasury would be seriously affected by consequent
increased cost of war contracts; and (10) serious and
-14-
adverse effects upon the revenues of Federal, State, and
local governments would occur.
The Congress further finds that all of the foregoing
constitutes a substantial burden on commerce and a
substantial obstruction to the free flow of goods in
commerce.
The Congress, therefore, further finds and declares that it
is in the national public interest and for the general
welfare, essential to national defense, and necessary to
aid, protect, and foster commerce, that this chapter be
enacted.
The Congress further finds that the varying and extended
periods of time for which, under the laws of the several
States, potential retroactive liability may be imposed
upon employers, have given and will give rise to great
difficulties in the sound and orderly conduct of business
and industry.
The Congress further finds and declares that all of the
results which have arisen or may arise under the Fair
Labor Standards Act of 1938, as amended, as aforesaid,
may (except as to liability for liquidated damages) arise
with respect to the Walsh-Healey and Bacon-Davis Acts
and that it is, therefore, in the national public interest and
for the general welfare, essential to national defense, and
necessary to aid, protect, and foster commerce, that this
chapter shall apply to the Walsh-Healey Act and the
Bacon-Davis Act.
(b) It is declared to be the policy of the Congress in order
to meet the existing emergency and to correct existing
evils (1) to relieve and protect interstate commerce from
practices which burden and obstruct it; (2) to protect the
right of collective bargaining; and (3) to define and limit
the jurisdiction of the courts.
-15-
The Portal-to-Portal Act exception to the FLSA at issue in the present
case is set forth, in relevant part, in 29 U.S.C. § 254(a):
Activities not compensable
Except as provided in subsection (b), no employer shall
be subject to any liability or punishment under the Fair
Labor Standards Act of 1938, as amended, the Walsh-
Healey Act, or the Bacon-Davis Act, on account of the
failure of such employer to pay an employee minimum
wages, or to pay an employee overtime compensation,
for or on account of any of the following activities of
such employee engaged in on or after May 14, 1947-
(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 to the time on any particular workday at
which he ceases, such principal activity or activities. For
purposes of this subsection, the use of an employer’s
vehicle for travel by an employee and activities
performed by an employee which are incidental to the
use of such vehicle for commuting shall not be
considered part of the employee’s principal activities if
the use of such vehicle for travel is within the normal
commuting area for the employer’s business or
establishment and the use of the employer’s vehicle is
subject to an agreement on the part of the employer and
the employee or representative of such employee.
-16-
We agree with UPS that this Court should look to federal law for
guidance in this instance as set forth in Vance, supra.
In Kentucky, “the cardinal rule of statutory
construction is to ascertain and give effect to the intent of
the legislature.” Beshear v. Haydon Bridge Co., Inc., 304
S.W.3d 682, 703 (Ky. 2010) (citation and brackets
omitted). “The obvious place to start is with the
language of the statute itself.” Members Choice Credit
Union v. Home Fed. Savings and Loan Ass’n, 323
S.W.3d 658, 660 (Ky. 2010). If the Kentucky Act is
“similar to a Federal Act,” its language “will normally be
interpreted consistent with federal law.” Starr v.
Louisville Graphite, Inc., No. 2014-CA-000620-MR,
2016 WL 1612940, *3 (Ky. Ct. App. Apr. 22, 2016); see
also Ammerman v. Bd. of Educ. of Nicholas Cty., 30
S.W.3d 793, 797-98 (Ky. 2000) (holding the Kentucky
Civil Rights Act “should be interpreted consistently
with” Title VII).
Plaintiffs agree the KWHA is similar to its federal
counterpart – so much so that the Kentucky Supreme
Court considers it “Kentucky’s analogue to the Fair
Labor Standards Act.” City of Louisville, Div. of Fire v.
Fire Serv. Managers Ass’n, 212 S.W.3d 89, 92 (Ky.
2006). Both statutes require employers to compensate
employees “at a rate not less than one and one-half times
the regular rate” for a “workweek longer than forty
hours.” Compare 29 U.S.C. § 207(a)(1), with Ky. Rev.
Stat. § 337.285(1) (using nearly identical language).
Both also define “hours worked,” and the related
concepts of “suffered or permitted to work,” “waiting
time,” “on-call time,” “rest and meal periods,” and
“travel time” in comparable language. Compare 803 Ky.
Admin. Regs. 1:065(1)-(7), with 29 C.F.R. §§ 785.11-
.19, 785.33, 785.35, and 785.38. Hence, when the
dispute concerns one of these “substantially similar”
provisions, and state case law is lacking, the Kentucky
-17-
Supreme Court looks to federal precedent for interpretive
guidance. City of Louisville, 212 S.W.3d at 95.
Vance, 852 F.3d at 610.
Turning to the Class’s primary argument that the § 254(a) exception is
inapplicable in Kentucky because the General Assembly did not expressly adopt its
terms, we also agree with UPS that this argument has no merit. The Vance Court
explained the history of the enactment of both the FLSA and the Portal-to-Portal
Act, and it specifically focused on the security screening issue:
“Enacted in 1938, the FLSA established a
minimum wage and overtime compensation for each hour
worked in excess of 40 hours in each workweek.”
Integrity Staffing, 135 S.Ct. at 516. “The Act did not,
however, define the key terms ‘work’ and ‘workweek.’”
Sandifer v. U.S. Steel Corp., ___ U.S. ___, 134 S. Ct.
870, 875, 187 L. Ed. 2d 729 (2014). Absent
congressional guidance, the Supreme Court interpreted
these terms broadly. Integrity Staffing, 135 S. Ct. at 516.
“It defined ‘work’ as ‘physical or mental exertion
(whether burdensome or not) controlled or required by
the employer and pursued necessarily and primarily for
the benefit of the employer and his business.’” Id.
(quoting Tenn. Coal, Iron & R. Co. v. Muscoda Local
No. 123, 321 U.S. 590, 598, 64 S. Ct. 698, 88 L. Ed. 949
(1944)). Only months after Tennessee Coal, the Court
expanded the definition further, “clarif[ying] that
‘exertion’ was not in fact necessary for an activity to
constitute ‘work’ under the FLSA,” for “an employer, if
he chooses, may hire a man to do nothing, or to do
nothing but wait for something to happen.” [IBP, Inc. v.
Alvarez, 546 U.S. 21, 25, 126 S. Ct. 514, 163 L. Ed. 2d
288 (2005)] (quoting Armour & Co. v. Wantock, 323
U.S. 126, 133, 65 S. Ct. 165, 89 L. Ed. 118 (1944)).
“Readiness to serve may be hired, quite as much as
-18-
service itself,” and must therefore also be compensated.
Armour, 323 U.S. at 133, 65 S. Ct. 165.
The Court took a similar approach with “the
statutory workweek,” which “include[d] all time during
which an employee is necessarily required to be on the
employer’s premises, on duty or at a prescribed
workplace.” Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 690-91, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946).
“That period, Anderson explained, encompassed time
spent ‘pursuing certain preliminary activities after
arriving, such as putting on aprons and overalls and
removing shirts.’” Sandifer, 134 S. Ct. at 875 (quoting
Anderson, 328 U.S. at 692-93, 66 S. Ct. 1187) (ellipsis
and brackets omitted). Per Anderson, these preparatory
efforts “‘are clearly work’ under the Act.” Id. (quoting
Anderson, 328 U.S. at 693, 66 S. Ct. 1187).
Together, these holdings led to decisions requiring
compensation for nearly every minute an employer
required its employees to be on the employer’s premises,
including “the time spent traveling between mine portals
and underground work areas,” and “walking from
timeclocks to work benches.” Integrity Staffing, 135 S.
Ct. at 516 (citing Tenn. Coal, 321 U.S. at 598, 64 S. Ct.
698, and Anderson, 328 U.S. at 691-92, 66 S. Ct. 1187).
They also “provoked a flood of litigation,” including
1,500 FLSA actions filed within six months of the
Court’s ruling in Anderson. Id.
“Congress responded swiftly.” Id. Finding the
Court’s decisions had “creat[ed] wholly unexpected
liabilities” with the capacity to “bring about financial
ruin of many employers,” it enacted the Portal-to-Portal
Act of 1947. Id. at 516-17 (quoting 29 U.S.C. § 251(a)-
(b)). The Act excepted two activities the Court
previously deemed compensable: “walking on the
employer’s premises to and from the actual place of
performance of the principal activity of the employee,
and activities that are ‘preliminary or postliminary’ to
-19-
that principal activity.” IBP, 546 U.S. at 27, 126 S. Ct.
514; see also Integrity Staffing, 135 S. Ct. at 516-17
(detailing history). Under the Portal-to-Portal Act then,
an employee’s principal activities are compensable, while
conduct he engages in before and after those activities
(i.e., preliminary and postliminary acts) is not.
“[P]rincipal activity” refers to the activity “an
employee is employed to perform.” Integrity Staffing,
135 S .Ct. at 517, 519. “[T]he term principal activity . . .
embraces all activities which are an integral and
indispensable part of the principal activities.” IBP, 546
U.S. at 29-30, 126 S. Ct. 514 (internal quotation marks
and citation omitted). An activity is “integral and
indispensable” to the principal activities an individual 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.”
Integrity Staffing, 135 S. Ct. at 517. In other words, an
activity is integral and indispensable to the work an
employee was hired to do if it is a component of that
work, and he cannot complete the work without it. Id.
Applying these terms, the Integrity Staffing Court
held that post-shift security screenings were neither the
principal activity Amazon hired its employees to
perform, nor “integral and indispensable” to that activity:
To begin with, the screenings were not the
“principal activity or activities which [the]
employee is employed to perform.”
Integrity Staffing did not employ its workers
to undergo security screenings, but to
retrieve products from warehouse shelves
and package those products for shipment to
Amazon customers.
The security screenings also were not
“integral and indispensable” to the
employees’ duties as warehouse
-20-
workers . . . . The screenings were not an
intrinsic element of retrieving products from
warehouse shelves or packaging them for
shipment. And Integrity Staffing could have
eliminated the screenings altogether without
impairing the employees’ ability to complete
their work.
Id. at 518 (citation omitted). The screenings were
therefore “postliminary” to the employees’ principal
activities and excluded from compensation pursuant to
the Portal-to-Portal Act.
Defendants contend the KWHA implicitly
incorporates the Portal-to-Portal Act’s exclusions,
making Integrity Staffing strongly persuasive in resolving
plaintiffs’ state-law claims. The Vances counter that the
KWHA does not include “preliminary” or “postliminary”
language, and, as a result, its application should not turn
on Portal-to-Portal Act cases like Integrity Staffing.
Vance, 852 F.3d at 608-10.
The Vance Court went on to examine whether by omitting the Portal-
to-Portal Act language, Kentucky’s General Assembly was signaling a deviation
from that Act. It held that it did not:
To be sure, Kentucky courts are bound by “the
words [the General Assembly] used in enacting the
statute”; they are not free to “surmis[e] what may have
been intended but was not expressed.” Travelers Indem.
Co. v. Reker, 100 S.W.3d 756, 765 (Ky. 2003) (citation
omitted). “Admittedly,” then, “when a legislature’s
enactment departs from the language of a model act, it
usually does so to express an intention different from the
model act.” [Members Choice Credit Union v. Home
Fed. Savings and Loan Ass’n, 323 S.W.3d 658, 663 (Ky.
2010)] (internal quotation marks and citation omitted).
-21-
“But,” Kentucky’s Supreme Court has cautioned that
“this approach is primarily relevant when the legislature
is working in a vacuum, building first principles in an
area of the law.” Id. Here, the Kentucky General
Assembly was not “working in a vacuum, building first
principles of [wage and hour] law.” Id. It drafted the
KWHA in 1974, decades after Congress enacted the 1947
Portal-to-Portal Act. “Where such context exists, it does
not automatically follow that the legislature meant
anything by a departure from the model act.” Id.
(recognizing that at the time of the amendment at issue,
“credit unions were already regulated . . . in Kentucky
and had been so for over sixty years”). Rather, “absent a
clear indication that the General Assembly considered the
revision and deliberately rejected it . . . legislative
inaction is a weak reed upon which to lean, and a poor
beacon to follow in construing a statute” that borrows
some, but not all, of a model act’s provisions. Shawnee
Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 560 (Ky.
2011) (citation, brackets, and ellipsis omitted).
Model-act-based statutes are better interpreted
“with reference to the circumstances existing at the time
of passage.” Members Choice Credit Union, 323 S.W.3d
at 663 (quoting United States v. Wise, 370 U.S. 405, 411,
82 S. Ct. 1354, 8 L. Ed. 2d 590 (1962)). These
circumstances may include an awareness of the
conditions that precipitated the Portal-to-Portal Act –
particularly the “flood of litigation” provoked by the
Supreme Court’s early permissive rulings. Integrity
Staffing, 135 S. Ct. at 516. “Further, our rules of
statutory construction presume that the legislature is
aware of the state of the law at the time it enacts a statute,
concluding judicial construction of prior enactments.” St.
Clair v. Commonwealth, 140 S.W.3d 510, 570 (Ky.
2004). If the Kentucky General Assembly intended to
expose employers to the type of liability Congress
foreclosed in the Portal-to-Portal Act, one may
reasonably assume it would have done so affirmatively –
especially given its willingness to affirmatively depart
-22-
from the FLSA in other instances. See, e.g., City of
Louisville, 212 S.W.3d at 95 [City of Louisville, Div. of
Fire v. Fire Service Managers Ass’n ex rel. Kaelin, 212
S.W.3d 89 (Ky. 2006)]; compare also Ky. Rev. Stat. §
337.065(3) (prohibiting mandatory tip-pooling), with 29
U.S.C. § 203(m) (specifying that it does not prohibit tip-
pooling); and Ky. Rev. Stat. § 337.050(1) (requiring
overtime pay for hours worked on the seventh
consecutive day of the work week), with 29 U.S.C. § 207
(including no such requirement). Thus, “absent a clear
indication that the General Assembly considered the
revision and deliberately rejected it,” Shawnee Telecom,
354 S.W.3d at 560, we cannot conclude that the lack of
Portal-to-Portal Act language demonstrates legislative
intent to exclude its compensation limits from
Kentucky’s wage and hour laws.
Id. at 611-13 (footnote omitted). The Court also considered Kentucky’s
administrative regulations in supporting its conclusion that the General Assembly
did not intend to reject the exclusion set forth in the Portal-to-Portal Act.
We have considered the parties’ arguments and caselaw cited in their
respective briefs. Based upon our review, we agree with the interpretation of
Kentucky’s Wage and Hours laws as set forth in Vance and hold that the circuit
court properly ruled that security screenings at issue constituted preliminary and
postliminary activities that were not part of the workers’ principal activity in their
work for UPS and therefore were not compensable. Therefore, the Class’s Unpaid
Wages claim could not be maintained and was properly dismissed.
Next, the Class argues that, even if the Portal-to-Portal Act exception
were to be read into KRS Chapter 337, the circuit court still erred in dismissing the
-23-
Unpaid Wages class claim due to lack of discovery and the existence of disputed
material facts. In its brief, the Class listed questions of material fact as including
whether UPS’ mandatory security locations were job sites, whether the Class
members were required to report to the mandatory security locations for
instructions, whether the Class members performed work by participating in
security procedures, whether the security procedures were a principal duty,
whether the security procedures were for UPS’ benefits, and whether the security
procedures could be eliminated.
In response, UPS cites to City of Pioneer Village, 104 S.W.3d at 759,
in which the Supreme Court of Kentucky explained the purpose of a CR 12.03
motion for a judgment on the pleadings:
The purpose of the rule is to expedite the termination of a
controversy where the ultimate and controlling facts are
not in dispute. It is designed to provide a method of
disposing of cases where the allegations of the pleadings
are admitted and only a question of law is to be decided.
The procedure is not intended to delay the trial in any
respect, but is to be determined before the trial begins.
The basis of the motion is to test the legal sufficiency of
a claim or defense in view of all the adverse pleadings.
When a party moves for a judgment on the pleadings, he
admits for the purposes of his motion not only the truth
of all his adversary’s well-pleaded allegations of fact and
fair inferences therefrom, but also the untruth of all his
own allegations which have been denied by his
adversary. Archer v. Citizens Fidelity Bank & Trust Co.,
Ky., 365 S.W.2d 727 (1963). The judgment should be
granted if it appears beyond doubt that the nonmoving
party cannot prove any set of facts that would entitle
-24-
him/her to relief. Cf. Spencer v. Woods, Ky., 282 S.W.2d
851 (1955).
UPS argues that dismissal was still warranted because the time for which the Class
was seeking compensation remained noncompensable as a matter of law. We
agree and find no merit in the Class’s argument to the contrary.
Finally, the Class argues that the circuit court’s ruling prevented it
from presenting all of its liability theories to the jury, stating that the jury could
have found that the time was compensable under such a theory as “waiting time.”
UPS responds that the Class did not attempt to establish a set of facts to show that
the Class members were “engaged to” pass through security checkpoints or that
undergoing these security screenings constituted an integral part of their job.
Again, we find no merit in the Class’s argument.
For the foregoing reasons, the order dismissing the Unpaid Wages
class claim is affirmed.
ALL CONCUR.
-25-
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES UPS
SUPPLY CHAIN SOLUTIONS, INC.,
Andrew J. Horne AND UNITED PARCEL SERVICE,
Louisville, Kentucky INC.:
Michael D. Grabhorn C. Laurence Woods III
Andrew M. Grabhorn Kyle D. Johnson
Louisville, Kentucky Louisville, Kentucky
Joseph R. Palmore, pro hac vice
Samuel B. Goldstein, pro hac vice
Washington, D.C.
-26-