RENDERED: MARCH 23, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0444-DG
MARION HUGHES; JAMES A. CRUME; APPELLANTS
PHILLIP L. WESTERN; RAYMOND S.
BATTS; AND TERRI A. ROGERS
ON REVIEW FROM COURT OF APPEALS
V. NO. 2019-CA-1457
JEFFERSON CIRCUIT COURT NO. 07-CI-009996
UPS SUPPLY CHAIN SOLUTIONS, INC.; APPELLEES
UNITED PARCEL SERVICE, INC.
OPINION OF THE COURT BY CHIEF JUSTICE VANMETER
AFFIRMING
In matters of statutory construction, courts have the duty to ascertain
and give meaning to the intent of the legislature. In this case, our task is to
determine whether KRS1 Chapter 337 encompasses the federal Portal-to-Portal
provisions such that preliminary and postliminary activities, such as
undergoing security screens, are non-compensable. Under customary rules of
statutory construction, we hold that such activities are non-compensable and
therefore affirm the Court of Appeals and the Jefferson Circuit Court.
1 Kentucky Revised Statutes.
I. Factual and Procedural Background.
This action was filed back in 2007 as a wage-and-hour class action by
Marion Hughes2 against UPS Supply Chain Solutions and United Parcel
Service, Inc.3 The complaint alleged that UPS violated KRS Chapter 337 by
failing to compensate Class Members for time spent complying with mandatory
security procedures upon entering/exiting UPS facilities. The allegations were
that Class Members expended work time on (i) entering after complying with
mandatory entry security procedures and before being permitted to clock-in
and (ii) exiting after being required to clock-out and then complying with
mandatory exit security procedures. The Class Members refer to this
uncompensated time as “security time.”
The long procedural history of this case is not particularly germane to
the issue before us, since, as noted, that issue is one of statutory construction.
Suffice to say that this case spent some time in the federal courts on UPS’s
attempt to remove it there,4 and then back in state court on whether it would
2 By First Amended Complaint and Second Amended Complaint, James A.
Crume, Phillip L. Western, Raymond S. Batts, and Terri A. Rogers were added as
plaintiffs. We refer to the named plaintiffs and other members of the class as “Class
Members.”
3 We refer to the defendants jointly as “UPS.”
4 Hughes v. UPS Supply Chain Sols., Inc., No. 3:07-CV-605-S, 2008 WL 3456217
(W.D. Ky. Aug. 8, 2008) (denying federal diversity jurisdiction), denying permission to
appeal, In re UPS Supply Chain Sols., Inc., No. 08-0513, 2008 WL 4767817 (6th Cir.
Oct. 27, 2008); Hughes v. UPS Supply Chain Sols., Inc., No. 3:09-CV-576-S, 2010 WL
1257724 (W.D. Ky. Mar. 26, 2010) (denying second attempt at removal for federal
diversity jurisdiction); Hughes v. UPS Supply Chain Sols., Inc., 815 F. Supp.2d 993
(W.D. Ky. 2011) (granting employees’ motion to remand to state court for employer’s
waiver of Labor Management Relations Act’s claims).
2
proceed as a class action.5 Ultimately, the Court of Appeals affirmed the trial
court’s order certifying the class. UPS Supply Chain Sols., Inc. v. Hughes, No.
2014-CA-1496-ME, 2018 WL 3602262 (Ky. App. July 27, 2018).
Following the Court of Appeals’ opinion affirming the trial court’s class
certification, UPS moved for 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[]”
based on the Portal-to-Portal Act, 29 U.S.C.6 §§ 251-262, and federal and
Kentucky case law interpreting the federal Fair Labor Standards Act, 29 U.S.C.
§§ 201- 219, the Portal-to-Portal Act and KRS Chapter 337. The Class
Members’ response was that because KRS Chapter 337 did not include
language tracking the provisions of the Portal-to-Portal Act, specifically 29
U.S.C. § 254,7 our legislature had elected not to include those provisions and
5 Hughes v. UPS Supply Chain Sols., Inc., No. 2012-CA-001353-ME, 2013 WL
4779746 (Ky. App. Sept. 6, 2013) (reversing denial of class certification and remanding
for additional consideration under Kentucky Rules of Civil Procedure (“CR”) 23).
Under CR 23.06, “[a]n order granting or denying class action certification is
appealable[.]”
6 United States Code.
7 29 U.S.C. § 254(a) sets forth general exemptions from compensable time:
(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--
3
therefore they were inapplicable. The trial court granted UPS’s motion and the
Court of Appeals affirmed. We granted the Class Members’ motion for
discretionary review.
II. Standard of Review.
In this case, the trial court granted UPS’s motion for partial judgment on
the pleadings. CR 12.03. A motion for judgment on the pleadings “should be
granted if it appears beyond doubt that the nonmoving party cannot prove any
set of facts that would entitle him/her to relief.” Mosley v. Arch Specialty Ins.
Co., 626 S.W.3d 579, 585 (Ky. 2021); City of Pioneer Vill. v. Bullitt Cnty. ex rel.
Bullitt Fiscal Ct., 104 S.W.3d 757, 759 (Ky. 2003). Such motions are “based
purely on whether the plaintiff has stated a cause of action as a matter of law
and do not require or permit the trial court to make any findings of fact.”
Mosley, 626 S.W.3d at 585 (footnote omitted). Because a trial court's ruling on
a motion for judgment on the pleadings is a question of law, appellate review of
(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.
4
a judgment on the pleadings is de novo. Id. (footnote omitted). Thus, we afford
no deference to the lower court’s opinions or rulings. Id. Similarly, we
interpret statutes without deferring to lower courts’ interpretations. Wheeler &
Clevenger Oil Co. v. Washburn, 127 S.W.3d 609, 612 (Ky. 2004).
III. Analysis.
The issue presented is one of statutory construction, i.e., whether the
Portal-to-Portal exceptions are contained within Kentucky’s wage and hour
provisions.
In matters of statutory construction, “our goal, of course, is to give effect
to the intent of the [legislature].” Shawnee Telecom Res., Inc. v. Brown, 354
S.W.3d 542, 551 (Ky. 2011). To derive that intent, we look first to the statute’s
language, “giving the words their plain and ordinary meaning.” Pleasant
Unions, LLC v. Ky. Tax Co., 615 S.W.3d 39, 45 (Ky. 2021); see Shawnee
Telecom, 354 S.W.3d at 551 (holding that intent is derived “from the language
the [legislature] chose, either as defined by the [legislature] or as generally
understood in the context of the matter under consideration[]”). “All words and
phrases shall be construed according to the common and approved usage of
language, but technical words and phrases, and such others as may have
acquired a peculiar and appropriate meaning in the law, shall be construed
according to such meaning.” KRS 446.080(4). If the statutory language is
plain and unambiguous, the legislature's intent is deduced from the language
used. W. Ky. Coal Co. v. Nall & Bailey, 228 Ky. 76, 80, 14 S.W.2d 400, 401–02
(1929). On the other hand, if the language is ambiguous, we resort to rules of
5
interpretation to guide our determination of the legislature’s intent. Pleasant
Unions, 615 S.W.3d at 45; MPM Fin. Group, LLC v. Morton, 289 S.W.3d 193, 198
(Ky. 2009).
In this case, KRS Chapter 337 is ambiguous in that it does not define
“work,” and contains no provision which addresses, either way, whether
preliminary or postliminary activities constitute compensable work or time on
the job. We acknowledge that KRS Chapter 337 “protects employees from the
unlawful wage and hour practices of their employer.” Mouanda v. Jani-King
Int'l, No. 2021-SC-0089-DG, 653 S.W.3d 65, 2022 WL 3641175, at *3 (Ky. Aug.
18, 2022). KRS 337.010(1)(c)1 defines “wages” to include “any compensation
due to an employee by reason of his or her employment, including salaries,
commissions, vested vacation pay, overtime pay, severance or dismissal pay,
earned bonuses, and any other similar advantages agreed upon by the
employer and the employee or provided to employees as an established policy.”
An “employee,” with exceptions not applicable to this case, is defined as “any
person employed by or suffered or permitted to work for an employer[.]” KRS
337.010(1)(e). KRS 337.275 defines “minimum wage,” but that provision does
not specifically help our interpretation in this case. And, finally, and perhaps
most pertinently, “any employer who pays any employee less than wages and
overtime compensation to which such employee is entitled under or by virtue of
6
KRS 337.020 to 337.285 shall be liable to such employee affected for the full
amount of such wages and overtime compensation[.]” KRS 337.385(1).8
To resolve this ambiguity, we are guided by both state administrative
interpretation and federal case law. We discuss each in turn.
A. State Administrative Interpretation of KRS Chapter 337.
The legislature has empowered the Kentucky Labor Cabinet, specifically
the Kentucky Department of Workplace Standards, to issue administrative
regulations “defining and governing” KRS Chapter 337. See KRS 337.295.
Those agencies enjoy “wide discretion” in interpreting Kentucky law. Ky. Mun.
League v. Commonwealth Dep't of Labor, 530 S.W.2d 198, 201–02 (Ky. App.
1975) (citing Butler v. United Cerebral Palsy of N. Ky., Inc., 352 S.W.2d 203 (Ky.
1961)). And the Department of Workplace Standard’s administrative
interpretation of Kentucky law serves as a basis for the application of Kentucky
statutes. See City of Louisville, Div. of Fire v. Fire Serv. Managers Ass’n ex rel.
Kaelin, 212 S.W.3d 89, 92–93, 96 (Ky. 2006).
For nearly half a century, the Kentucky Department of Workplace
Standards has concluded that the Portal-to-Portal Act’s compensation limits
are part of the KRS Chapter 337 framework.9 See 803 KAR 1:065 (LAB-12; 1
Ky. R. 253; eff. 1-8-75; TAM eff. 8-9-2007; expired 3-1-2020). For instance,
8 This lack of specificity is underscored by the Class Members’ second amended
complaint which cites no specific statute or regulation, but merely alleges “UPS has
violated Kentucky’s wage and hour laws and regulations.”
9 Kentucky’s current regulation regarding hours worked is codified at 803 Ky.
Admin. Regs. (“KAR”) 1:067 (48 Ky. R. 2336, 2980; eff. 8-30-2022).
7
Kentucky’s longstanding administrative regulation regarding “Travel Time”
stated:
(1) General. The principles which apply in determining
whether or not time spent in travel is working time depend upon
the kind of travel involved.
(2) Home to work. An employe[e] who travels from home
before his regular workday and returns to his home at the end of
the workday is engaged in ordinary home to work travel which is a
normal incident of employment. This is true whether he works at a
fixed location or at different job sites. Normal travel from home to
work is not worktime.
(3) Travel that is worktime. Time spent by an employe[e]
in travel as part of his principal activity, such as travel from job site
to job site during the workday, must be counted as hours worked.
Where an employe[e] is required to report at a meeting place to
receive instructions or to perform other work there, the travel from
the designated place to the work place is part of the day’s work,
and must be counted as hours worked.
803 KAR 1:065 (emphasis added).
And although the earlier regulation, 803 KAR 1:065, expired in 2020,
Kentucky’s current regulation regarding “Hours Worked” expressly
incorporates federal standards into the definition of “Travel Time,” stating,
“Travel Time. The requirements for travel time applicable to KRS 337.275 and
337.285 shall be as established in 29 C.F.R.10 785.33, 785.35, 785.38, and
785.39.” 803 KAR 1:067(7).11
10 Code of Federal Regulations.
11 The language in 29 C.F.R. 785.38, which is incorporated by reference in 803
KAR 1:067(7), is identical to the relevant language in Kentucky’s previous regulation
regarding travel time. Compare 803 KAR 1:065 (1975) (“[t]ime spent by an employe[e]
in travel as part of his principle activity, such as travel from job site to job site during
the workday, must be counted as hours worked[]”), with 29 C.F.R. 785.38 (“[t]ime
spent by an employee in travel as part of his principal activity, such as travel from job
site to job site during the workday, must be counted as hours worked[]”).
8
“Both the phrase and concept of a ‘principal activity’ are taken from the
text of the Portal-to-Portal Act.” Vance v. Amazon.com, Inc. (In re Amazon.com,
Inc., Fulfillment Ctr. Fair Lab. Standards Act (FLSA) & Wage & Hour Litig.), 852
F.3d 601, 613 (6th Cir. 2017) (citing 29 U.S.C. § 254(a)). Inclusion of the
“principal activity” language in Kentucky’s administrative regulations
strengthens the connection between KRS Chapter 337 and the Portal-to-Portal
Act, “which has employer liability for ‘walking, riding [and] traveling to and
from the actual place of performance’ squarely at its focus.” Id. (quoting 29
U.S.C. § 254(a)(1)).
Furthermore, Kentucky’s wait-time regulation, 803 KAR 1:063,12 imports
the Portal-to-Portal Act rule and is drawn from federal regulations, see 29
C.F.R. §§ 785.14–16. Id. “Both sets of regulations explain that ‘waiting is an
integral part of the job’ only when the employee is ‘engaged to wait’—meaning
his workday has begun and he is anticipating some further principal activity,
such as a stenographer waiting to take dictation or a firefighter waiting for a
call.” Id. (citing 803 KAR 1:065(3)(2) and 29 C.F.R. § 785.15).
The longstanding similarities between KRS Chapter 337’s administrative
regulations and their federal counterparts bolsters the conclusion that the
Portal-to-Portal Act’s exemptions apply to KRS Chapter 337. Under Kentucky
law, administrative regulations have the full force and effect of law when duly
enacted and consistent with enabling legislation. Centre College v. Trzop, 127
12 Although the previous version of 803 KAR 1:063 has expired, similar
language has been recodified at 803 KAR 1:064.
9
S.W.3d 562, 566 (Ky. 2003). As a result, even considering legislative silence on
the issue, the Portal-to-Portal Act’s exemptions have been Kentucky law by way
of administrative regulation since 1975.
Moreover, legislative inaction here supports the conclusion that KRS
Chapter 337 imports the Portal-to-Portal Act’s exemptions. The legislature has
convened in regular session over thirty times since the Kentucky Department of
Workplace Standards first incorporated the Portal-to-Portal Act’s exemptions
into KRS Chapter 337.13 As will be discussed in more detail infra, the
legislature has not been shy about amending other parts of KRS Chapter 337.
Legislative inaction under these circumstances demonstrates that the
legislature has ratified, or at the very least has acquiesced, in the Department
of Workplace Standard’s inclusion of the Portal-to-Portal Act’s exemptions in
the KWHA framework.
B. Federal Court Interpretation of KRS Chapter 337.
In Kaelin, we described KRS Chapter 337 as “Kentucky's analogue to the
Fair Labor Standards Act, 29 U.S.C. §§ 201–219 [(“FLSA”)].” 212 S.W.3d at 92.
As such, “[w]e first look to Kentucky jurisprudence and find nothing other than
the statutes themselves to aid in interpreting the issue which is presented
before us today. In the absence of any Kentucky cases on point, we next look
to federal cases interpreting the FLSA.” Id. at 95.
13 Before 2000, the Kentucky General Assembly met in regular sessions in even-
numbered years. In 2000, Kentucky established annual regular sessions through
constitutional amendment. See Ky. Const. § 36 (2000).
10
Two federal cases directly aid our interpretation. First, the United States
Supreme Court held, in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27
(2014), that security screenings are noncompensable activities under the FLSA
since such screenings were not the principal activity or activities which the
employee is to perform, id. at 35 (citing 29 U.S.C. § 254(a)(1)), and were not
“‘integral and indispensable’ to the employees’ duties as warehouse workers.”
Id. The Court noted that “[t]he screenings were not an intrinsic element of
retrieving products from warehouse shelves or packaging them for shipment.
And [the employer] could have eliminated the screenings altogether without
impairing the employees' ability to complete their work.” Id.
Following this decision, the Sixth Circuit Court of Appeals applied the
Integrity Staffing rationale to a case involving a similar requirement for workers
to pass through lengthy anti-theft security screenings after clocking out
without compensation for that time. Vance, 852 F.3d 601. In Vance, the
court, following a thorough analysis of the history of FLSA, the Portal-to-Portal
Act, KRS Chapter 337 and applicable federal and state regulations, concluded
that KRS Chapter 337 incorporates “the Portal-to-Portal Act's compensation
limits on preliminary and postliminary activities. Integrity Staffing is therefore
on point.” 852 F.3d at 615.
The Class members argue that this Court, and not the federal courts, are
the final arbiters of Kentucky law. While that assertion is true, the Class
Members forget that we are not interpreting statutes for our benefit. Rather,
11
our goal, as stated previously, is to ascertain and give effect to the legislature’s
intention. See KRS 446.080(1).
While we agree with the Sixth Circuit’s analysis as to the Portal-to-Portal
Act’s applicability to KRS Chapter 337, another consideration mandates its
application. We have often cited the rule of statutory interpretation that “the
failure of the legislature to change a known judicial interpretation of a statute
is extremely persuasive evidence of the true legislative intent.” Bloyer v.
Commonwealth, 647 S.W.3d 219, 225 (Ky. 2022); Kindred Healthcare v. Harper,
642 S.W.3d 672, 684 (Ky. 2022); Toyota Motor Mfg., Ky., Inc. v. Prichard, 532
S.W.3d 633, 636 (Ky. 2017); Hughes v. Commonwealth, 87 S.W.3d 850, 856
(Ky. 2002); Rye v. Weasel, 934 S.W.2d 257, 262 (Ky. 1996). In other words, “a
strong implication [is created] that the legislature agrees with a prior court
interpretation of its statute when it does not amend the statute interpreted.”
Kindred, 642 S.W.3d at 684; Toyota, 532 S.W.3d at 636; Rye, 934 S.W.2d at
262. This rule of statutory interpretation equally applies when a federal court
exercising diversity jurisdiction interprets state statutes. See Democratic Party
v. Graham, 976 S.W.2d 423, 428-29 (Ky. 1998) (holding, in light of a prior
federal decision interpreting KRS Chapter 121 and subsequent legislative
reenactment, “the legislature is well aware of the interpretation of the existing
statute and has adopted that interpretation unless the new law contains
language to the contrary. . . . If the legislators intended to depart from the
existing statutory interpretation, it is incumbent that they use ‘plain and
unmistakable language[.]’”) (internal citations omitted).
12
In this case, after the Sixth Circuit’s 2017 decision in Vance, the
Kentucky General Assembly has convened five times. It has passed statutory
amendments to KRS Chapter 337 in 2018, 2019, 2020 and 2021.14 Admittedly
some of these amendments do not implicate any of the sections at issue in this
case. But these amendments indicate that the legislature has been proactive
in amending KRS Chapter 337. Furthermore, notwithstanding that some of
the issues in this case arose more than fifteen years ago, the legislature may
make legislation retroactive, if it so desires. See KRS 446.080(3) (providing
that “[n]o statute shall be construed to be retroactive, unless expressly so
declared[]”); Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 36 (Ky. 1991) (holding
that remedial statutes may have retroactive application).
IV. Conclusion.
At bottom, the Portal-to-Portal Act’s exemptions were incorporated into
Kentucky law in 1975, when the Department of Workplace Standards applied
the Portal-to-Portal Act’s exemptions to KRS Chapter 337. Nearly a half
century of legislative inaction clearly demonstrates that the legislature has
acquiesced to the Department’s administrative interpretation. In addition, a
federal case, Vance, addressed a virtually identical factual situation and
14 Act of Apr. 20, 2022, ch. 236 § 115, 2022 Ky. Acts 2216 (amending KRS
337.010); Id. ch. 236 § 176 (amending KRS 337.065); Id. ch. 236 § 116 (amending
KRS 337.075); Act of Apr. 8, 2022, ch. 94 § 3, 2022 Ky. Acts 566 (amending KRS
337.100); Act of Apr. 12, 2022, ch. 191 § 9, 2022 Ky. Acts 1117 (amending KRS
337.285); Act of Mar. 29, 2021, ch. 153 § 1, 2021 Ky. Acts 883 (amending KRS
337.010); Act of Mar. 23, 2021, ch. 76 § 1, 2021 Ky. Acts 412 (amending KRS
337.015); Act of Feb. 11, 2020, ch. 2 § 1, 2020 Ky. Acts 5 (amending KRS 337.010);
Act of Apr. 26, 2018, ch. 195 § 1, 2018 Ky. Acts 1671 (amending KRS 337.285).
13
applied the Portal-to-Portal Act’s exemptions to KRS Chapter 337. A contrary
interpretation would be squarely inconsistent with well-settled law concerning
the legal force of properly enacted administrative regulations, this Court’s
precedent regarding the proper application of legislative inaction, and accepted
principles of statutory interpretation. For these reasons, the decisions of the
Court of Appeals and the Jefferson Circuit Court holding that preliminary and
postliminary security screenings required by UPS are not compensable under
KRS Chapter 337 are affirmed.
All sitting. VanMeter, C.J.; Bisig, Conley, and Nickell, JJ., concur.
Thompson, J., dissents by separate opinion in which Keller and Lambert, JJ.,
join.
THOMPSON, J., DISSENTING: This protracted class action litigation
currently concerns whether Kentucky will adopt the federal law contained in 29
United States Code (U.S.C.) § 254, known as Section 4 of the Portal-to-Portal
Act (the Federal Law), and engraft it into our Wage and Hour law. The Federal
Law exempts from compensation “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 . . . activities which are preliminary to or
postliminary to said principal activity or activities,” if they occur prior or
subsequent to the performance of the employee’s “principal activity or
activities.” 29 U.S.C. § 254(a).15 If we adopt the Federal Law, the question then
15
The relevant portion of the Federal Law is contained in 29 U.S.C. § 254(a)
which explains that the following activities are not compensable:
14
becomes what impact this will have on UPS workers in the class who must
undergo extensive and potentially lengthy security screenings at the beginning
and end of their shifts as mandated by federal laws applicable to package
shipping companies.
The majority opinion declares that the Federal Law has already been
incorporated into our Wage and Hour regulations, and determines that as a
matter of law, it creates a bright-line rule prohibiting compensation for any
type of security screenings. Accordingly, the majority opinion declares that
such workers must be summarily denied any compensation for the time they
spend passing through security. The majority opinion thereby concludes that
under any set of facts, no matter how onerous and time-consuming such
screenings are or why they are required, employees are required to bear this
cost of business themselves.
I vehemently disagree with such an approach. I respectfully dissent from
the majority opinion as I cannot agree with its reasoning that UPS’s motion for
(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 . . . .
29 U.S.C. § 254(b) provides enumerated exceptions based on contract and
custom to the 29 U.S.C. § 254(a) restrictions to compensation, limited by 29 U.S.C. §
254(c), but I do not discuss these exceptions as they are inapplicable to the facts
before us.
15
partial judgment on the pleadings16 was properly granted pursuant to the
Kentucky Rules of Civil Procedure (CR) 12.03, given the incomplete record
available and the absence of adequate discovery. Additionally, I believe the
majority opinion is wrongfully legislating from the bench by engrafting the
Federal Law into Kentucky’s Wage and Hour laws and then interpreting this
law expansively to resolve a question that it is premature to address.
I conclude that under Kentucky’s own standards or the Federal Law that this
case should have survived the motion for judgment on the pleadings and
should be reversed and remanded for development of the record. It is well past
time for this matter, which was originally filed in 2007, to be decided on the
merits.
I. FACTUAL AND PROCEDURAL BACKGROUND
The class is composed of UPS workers employed at the Worldport,
Elizabethtown, and Louisville Technical & Logistics Center (LTLC) facilities as
they were determined to have security procedures and methods in common.
Hughes v. UPS Supply Chain Sols., Inc., 2012-CA-001353-ME, 2013 WL
4779746, at *5-7 (Ky. App. Sept. 6, 2013).
The class members generally alleged that they were not being
appropriately compensated for mandatory worktime which consisted of
entering and exiting through a security checkpoint, as they could not clock in
16 The partial summary judgment on the pleadings fully dismissed the class’s
claims for unpaid wages for all time worked; it did not address the class’s claims for
illegal disability leave policies, which are apparently still pending.
16
until after entering through a security checkpoint and then had to clock out
before exiting through a security checkpoint. They alleged that the time spent
going through the security checkpoints was for the benefit of UPS and was
uncompensated worktime, which was not de minimis, explaining that “Plaintiffs
were not free to effectively use the time expended between complying with
security and clocking-in or out for their own purposes.” Accordingly, they
generally alleged that UPS violated Kentucky’s Wage and Hour laws and
regulations.
I focus my discussion on the security screening processes that take place
for the portion of the class that works at UPS’s Worldport facility. Some
pertinent information is needed to understand the size and scale of the
Worldport facility to put into perspective the limited information we have as to
what its security screening process entails:
UPS WORLDPORT17
17 The data contained in this chart was gleaned from the following sources:
Louisville Regional Airport Authority, Aviation Statistics: December 2022,
https://www.flylouisville.com/wp-content/uploads/2023/02/Aviation-Stats-2022-12-
revised-3.pdf; UPS, UPS Air Operation Facts (Revised Jun. 30, 2022), https://about.
ups.com/content/dam/upsstories/assets/fact-sheets/airlines-fact-sheets/Air-
Operations-Facts-063022.pdf; AeroSavvy, Inside Louisville’s UPS Worldport, https://
aerosavvy.com/ups-worldport/ (last visited Feb. 28, 2023) (Inside Worldport);
Louisville Regional Airport Authority, SDF History, https://www.flylouisville.com/
corporate/sdf-history/ (last visited Feb. 23, 2023); Louisville Regional Airport
Authority, Economic Impact: Fueling the Regional Economy, https://www.flylouisville.
com/wp content/uploads/2020/10/LRAA-CY2018-Economic-and-Fiscal-Impact-2-
Pager.pdf (last visited Feb. 23, 2023); UPS, UPS Welcomes New Developments in
Healthcare and Aviation (Nov. 18, 2022), https://about.ups.com/us/en/our-
stories/customer-first/ups-breaks-ground-on-louisville-expansions.html. I recognize
that Worldport has expanded greatly since the class filed suit, so this data is not
necessarily accurate for the time period at issue, but I provide it nevertheless as our
decision will affect how employees at Worldport are compensated going forward.
17
Size • 5.2 million square feet (the size of 90 football fields)
• 7.2 miles around its perimeter
• Larger than Minneapolis’s Mall of America
• ramp size of 300 acres
Capacity • 125 aircraft parking spots
• 70 self-parking docks
• 387 in/outbound flights per day
• Peak capacity of one aircraft arriving each minute
Volume • 416,000 packages/documents per hour
• 2 million packages a day (up to 4 million during the
Christmas season)
Relative • UPS’s largest facility and company’s main air hub
Importance
• second busiest cargo airport in North America
• fourth busiest cargo airport in the world
Workers • 12,000+ employees work there per day
Statistics for • 3+ billion pounds of cargo enplaned and deplaned
2022 (3,443,107,204 lbs enplaned; 3,249,700,296 lbs
deplaned)
• 47,365 planes landed
18
This publicly available information shows that this is a massive facility
with a population and footprint that is equivalent to some smaller Kentucky
cities.18 A workplace at such a scale is difficult to imagine.
At this juncture of the litigation, our knowledge about the security
screening process at Worldport and the other facilities is limited.19 However,
considering this and my general knowledge that Worldport is at the airport and
that its employees are working in a facility that has package distribution that is
loaded and unloaded from airplanes, the security screening process appears to
be closely analogous to the airport security screenings that passengers undergo
18 For comparison, the number of employees present every day, about 12,000,
makes Worldport’s “population” slightly smaller than Kentucky’s 33rd largest city,
Bardstown, which has a population of 14,028, but around the same size as Kentucky’s
36th largest city, Somerset, which has a population of 12,143. World Population
Review, Cities in Kentucky by Population, https://worldpopulationreview.com/states/
cities/kentucky (last visited Feb. 28, 2023).
19 Hughes, 2013 WL 4779746, at *5 briefly recounts this process for the
Worldport, LTLC and Elizabethtown facilities for purposes of determining if they met
the requirements of commonality and typicality:
Upon entering the Elizabethtown facility, employees removed personal
items, passed through a metal detector, and presented any bags for
search by security personnel. Upon exiting the Elizabethtown facility,
employees again passed through a metal detector. Upon entering the
LTLC facility, employees removed personal items, passed through a metal
detector, and presented any bags for search by security personnel. Upon
exiting the LTLC facility, employees again passed through a metal
detector. Upon entering the Worldport facility, employees were required
to pass through a metal detector and remove all personal belongings. If
an audible alert sounded, the employee again passed through a metal
detector and could be wanded by security personnel if another alert
sounded. The employees at Worldport followed the exact same security
procedure upon exiting the facility.
This summary appears to be derived from the May 4, 2012, affidavit of Domenic
DiMauro, Jr., UPS’s Air District Security Manager (DiMauro Affidavit) and the May 3,
2012, affidavit of Steve Hamm, UPS’s North American Security Director (Hamm
Affidavit).
19
before they can board commercial flights. There are even a similar number of
employees and passengers being screened each day.20 The main difference
appears to be that Worldport employees must undergo this process on both
ends of their shifts and they have a much farther distance to traverse than
passengers.21
As our passenger screening time varies, I imagine theirs must as well.
Just as passengers plan ahead for screening time and often arrive far earlier
than is actually needed to pass through security so that they will not risk (or
worry about risking) failing to make it to the gate on time, such employees
likely also need to arrive substantially ahead of time to ensure they can clock
in on time so as to avoid workplace discipline.
II. THE JUDGMENT ON THE PLEADINGS SHOULD NOT HAVE BEEN
GRANTED
From the pleadings, and the class certification process, it appears that
the security screenings at Worldport differ substantially from those security
20 Publicly available statistics are that the Louisville Muhammad Ali
International Airport had more than 3.88 million passengers in 2022, which when
divided by 365 days, provides an average of about 10,630 passengers per day.
Louisville Muhammad Ali International Airport, Louisville Muhammad Ali International
Airport Marks Third Best Year in 2022 (Feb. 7, 2023), https://www .flylouisville.com
/louisville-muhammad-ali-international-airport-marks-third-best-year-in-2022/.
Thus, there are fewer daily passengers than Worldport’s 12,000 daily employees.
21 The passenger terminals are comprised of just 360,000 square feet.
Louisville Muhammad Ali International Airport, Louisville Muhammad Ali International
Airport (SDF), https://www.flylouisville.com/corporate/louisville-muhammad-ali-
international-airport-sdf/ (last visited Feb. 28, 2023). This makes the passenger
terminals appear tiny next to Worldport. Inside Worldport. According to the DiMauro
Affidavit, the Worldport employees enter through one of four security entrances or
through the hanger. How much entering through these entrances may divert
employees from proceeding directly to their assigned workstations is unclear.
20
screenings that have been deemed non-compensable under the Federal Law.
Therefore, whether or not the Federal Law applies, disputed issues of fact
should have precluded granting judgment to UPS on the pleadings.
Under Kentucky Civil Rule 12.03, “[a]fter the pleadings are closed
but within such time as not to delay the trial, any party may move
for judgment on the pleadings.” The moving party “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.” Pioneer Vill. v. Bullitt Cnty., 104 S.W.3d 757,
759 (Ky. 2003) (citing Archer, 365 S.W.2d 727). Importantly, a
motion for judgment on the pleadings should never be granted
unless “it appears beyond doubt that the nonmoving party cannot
prove any set of facts that would entitle him/her to relief.” Id.
(citing Spencer v. Woods, 282 S.W.2d 851 (Ky. 1955)).
Furthermore, as our predecessor Court stated, if “the pleadings
raise any issue of material fact,” then a judgment on the pleadings
“should be denied.” La Vielle v. Seay, 412 S.W.2d 587, 590 (Ky.
1966).
Russell v. Johnson & Johnson, Inc., 610 S.W.3d 233, 240 (Ky. 2020). Joined to
this basic premise is that fact that under notice pleading, claims need not be
stated with precision and must be liberally construed. Id. at 241.
The entitlement to compensation is necessarily fact specific. However,
very few of the facts have yet been established. While we generally know what
type of security screening the employees go through, we do not have much
information about how this process works in practice and how different
employees are affected by it. We do not know how many employees are lined
up to go through such screenings before or after their shifts begin, how many
screening stations there are at each entrance, how long the wait time is to pass
through such screenings, and how much this may vary between different
21
shifts, days and other factors.22 We do not know if the length of the delay in
reaching a workstation is caused by the diverted path needed to pass through
a screening station, compared to the wait to pass through the screening
process.
The information we have about why employees are required to be
subjected to these particular kinds of screenings is provided in affidavits from
UPS’s North America Security Director Hamm and UPS’s Air District Security
Manager DiMauro. They indicate these screenings are mandated for UPS to
comply with federal regulations from the Transportation Security
Administration (TSA), which must approve its security program, the Drug
Enforcement Administration (DEA), and the Food and Drug Administration
(FDA).23 Hamm Affidavit; DiMauro Affidavit. Additionally, UPS has chosen to
22 The DiMauro Affidavit indicates that at the Worldport facility “[i]t takes most
employees only a few seconds to pass through this security screening process.”
DiMauro does not clarify whether this means that employees essentially walk through
security gates unimpeded and complete the entire security process in this length of
time, or if they have to wait to be screened, but each individual screening is typically
completed within a few seconds. He also does not clarify how long a security
screening may take if the metal detector alerts or a bag requires closer inspection and
how that impacts employees waiting to be screened. The Hamm Affidavit, which
addresses security at LTLC and Elizabethtown, indicates that security processing at
LTLC and Elizabethtown typically only takes seconds, but that wait times to pass
through security at LTLC can take up to two minutes (with those times varying by
building), and that at Elizabethtown wait times can be up to four minutes during peak
morning rush. The employees alleged that their wait times were not de minimis but
did not provide any affidavits about their individual experiences with wait times. I
note that these are all factual questions to be resolved below but whether such time
must be compensated does not hinge on how long an activity takes.
23 UPS is required by federal regulations to implement security protocols
mandated by the TSA at its Worldport facility because UPS has entered into an
agreement with the Louisville International Airport, making it responsible for the areas
under its exclusive control. DiMauro Affidavit. Certain UPS facilities must also
comply with DEA and FDA regulations to guard against theft and diversion of
controlled substances. Hamm Affidavit. However, it is unclear from these affidavits
22
participate in the Customs-Trade Partnership Against Terrorism (C-TPAT), “a
joint government-business initiative” which “requires member businesses
involved with the import process to work with the U.S. Customs and Border
Patrol (CBP) to assess, develop, and implement procedures that ensure tighter
cargo and supply chain security,” to be C-TPAT certified and validated.
DiMauro Affidavit. Obtaining such status greatly benefits UPS as “[i]n return
for implementing [the C-TPAT] security guidelines, C-TPAT partners receive
expedited processing of their cargo into the United States.” Hamm Affidavit;
DiMauro Affidavit. Additionally, some of UPS’s customers require certain levels
of security as part of their contractual agreements with UPS. Hamm Affidavit.
Without further development of the record, it is unclear which of the
Kentucky Department of Workplace Standards (KDWS) regulations most aptly
apply to the security screenings at issue. It is also unclear whether such
regulations would provide compensation for security time, or not.
Kentucky’s Wage and Hour laws do not squarely address whether going
through security checkpoints should be considered compensable worktime.
The most that can be said at this juncture is, “it depends” as such inquiries are
highly fact dependent. While our Court can interpret what our regulations say,
we cannot say how these regulations apply to undetermined facts.
whether the Worldport, LTLC, and Elizabethtown facilities are governed by DEA and
FDA regulations.
23
III. THE FEDERAL LAW DOES NOT APPLY
The Federal Law exempts from wages “preliminary” and “postliminary”
activities that are not the “principal activity or activities” of the employment.
Kentucky’s Wage and Hour laws and administrative regulations have never
used the phrase “portal-to-portal” or used the terms “preliminary” and
“postliminary” in relation to determining whether something is compensable
work time. See generally 803 Kentucky Administrative Regulations (KAR)
1:065; 803 KAR 1:067. These terms are also unknown when it comes to
employment law in Kentucky unless a claim is being made under the Federal
Law.
The KDWS has not explicitly adopted the Federal Law in any form, and I
firmly believe that the KDWS has not implicitly adopted it either. The only
significant language our regulations, past and present, share with the Federal
Law is the use of the term “principal activity.” This term is only used once in
all of 803 KAR 1:065, in Section 7(3), in the following sentence: “Time spent by
an employee in travel as part of his principal activity, such as travel from job
site to job site during the workday, must be counted as hours worked.” Our
current administrative regulation pertaining to hours worked, 803 KAR 1:067,
which was adopted in 2022 and incorporates specific sections of 29 C.F.R. 785
by reference, also only uses the term “principal activity” once, in 29 C.F.R.
785.38, stating “[t]ime spent by an employee in travel as part of
his principal activity, such as travel from job site to job site during the
workday, must be counted as hours worked.” For both regulations then, this
24
language is used to make such time compensable, rather than to exclude it
from compensation as the term does in the Federal Law.
The sections of the federal regulations that the KDWS chose to adopt and
failed to adopt through 803 KAR 1:067, also support my reasoning. The KDWS
failed to adopt any section of 29 C.F.R. 785 which either clearly references the
Federal Law, see 29 C.F.R. 785.9, 785.24 and 785.50 (extensively quoting from
and interpreting the applicability of the Portal-to-Portal Act), or any provisions
that reference it more discretely. See 29 C.F.R. 785.7, 785.26 and 785.34. The
only C.F.R. section 803 KAR 1:067 adopts which even makes mention of the
Federal Law, 29 C.F.R. 785.33, only does so in referring to another (unadopted)
regulation, 29 C.F.R. 785.34.24 803 KAR 1:067 § 7 specifically declined to
adopt 29 C.F.R. 785.34, while adopting the adjoining regulations of 29 C.F.R.
785.33, 785.35, 785.38, and 785.39. I believe such action indicates that there
was never any prior intent to adopt or follow the Federal Law.
Accordingly, I strongly disagree with the majority opinion that our
regulations, past and present, which contain the singular use of the term
“principal activity” as detailed, supra, should be interpreted as an implicit
adoption of the Federal Law with its concomitant elimination of time subject to
compensation, as the Sixth Circuit did in Vance v. Amazon.com, Inc. (In re
24 29 C.F.R. 785.33 is a general regulation on travel time which states in full:
The principles which apply in determining whether or not time spent in
travel is working time depend upon the kind of travel involved. The
subject is discussed in §§ 785.35 to 785.41, which are preceded by a
brief discussion in § 785.34 of the Portal-to-Portal Act as it applies to
travel time.
25
Amazon.com, Inc., Fulfillment Ctr. Fair Lab. Standards Act (FLSA) & Wage &
Hour Litg.), 852 F.3d 601, 613 (6th Cir. 2017). I additionally disagree with the
majority opinion’s assertion, which goes beyond the reasoning in Vance, that
“[f]or nearly half a century, the Kentucky Department of Workplace Standards
has concluded that the Portal-to-Portal Act’s compensation limits are part of
the KRS Chapter 337 framework.”
The majority opinion’s reliance on Vance for this proposition is
misplaced. The Sixth Circuit in Vance specifically acknowledged that the
litigants agreed that the question of whether the Kentucky Wage and Hours Act
incorporates the Federal Law was unsettled; it implicitly agreed but chose not
to certify such a question to our Court based on the advanced state of the
litigation. Vance, 852 F.3d at 607-08. Therefore, Vance does not provide any
authority for the majority’s conclusion that the Federal Law has clearly been
incorporated into our regulations.
Additionally, this federal opinion is not binding on us and not
particularly persuasive. It is hardly surprising that a federal court might wish
to apply the Federal Law and the case law interpreting it where Kentucky has
not yet interpreted its own regulations.
I am further unmoved by the majority’s conclusion that “legislative
inaction here supports the conclusion that KRS Chapter 337 imports the
Portal-to-Portal Acts exemptions” because the legislature has not acted in the
more than thirty times it has convened in regular session to overrule the KDWS
since it first incorporated the Federal Law into our statutes. As noted in
26
Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 560 (Ky. 2011),
“legislative inaction is a weak reed upon which to lean, and a poor beacon to
follow in construing a statute.” I believe this observation to be even more apt
when it comes to construing a regulation in a manner in which it has never
been interpreted before.
Finally, even were I in error in my conclusion that the KDWS has never
implicitly incorporated the Federal Law via regulations, the KDWS has certainly
not incorporated the Federal Law in such a clear manner that the General
Assembly should be on notice that such an incorporation took place.
Furthermore, there have been no Kentucky cases prior to this one to alert the
General Assembly that this is how these regulations are being construed by
Kentucky’s appellate courts.
IV. KENTUCKY’S APPLICABLE WAGE AND HOUR REGULATIONS, WHEN
APPLIED TO THE RELEVENT FACTS, MAY WARRANT RELIEF
So, what do our applicable regulations require? 803 KAR 1:065, which
expired in 2020 but was in effect at the time the litigation commenced,
contains definitions relating to worktime and is applicable to this litigation and
the timeframe at issue. However, for simplicity, I focus my discussion on the
current regulations for hours worked, as they are very similar to our former
regulations and use nearly identical pertinent phrasing, but I also quote from
the former regulations in footnotes.
803 KAR 1:067 Section 3, concerning waiting time, adopts 29 C.F.R.
785.13 through 785.17. 29 C.F.R. 785.14 notes that it is a fact specific inquiry
27
as to whether an employee was engaged to wait or waited to be engaged.25 29
C.F.R. 785.15 explains an employee is on duty and working while waiting for
the next task if the periods of inactivity are “unpredictable” and “are usually of
short duration.” Key to such times is that “the employee is unable to use the
time effectively for his own purposes. It belongs to and is controlled by the
employer. In all of these cases waiting is an integral part of the job. The
employee is engaged to wait.” Id.26
In defining “off duty” in 29 C.F.R. 785.16, the regulation contrasts hours
not worked as those “[p]eriods during which an employee is completely relieved
from duty and which are long enough to enable him to use the time effectively
for his own purposes” with hours worked when such employee “is not
completely relieved from duty and cannot use the time effectively for his own
purposes[.]”27 29 C.F.R. 785.16(b) explains that a truck driver who has to wait
25 Similarly, 803 KAR 1:065 § 3(1), regarding waiting time states in relevant
part:
Whether waiting time is worked under the act depends
upon particular circumstances. . . . Facts may show that
the employee was engaged to wait, or they show that he
waited to be engaged. Such questions must be determined
in accordance with common sense and the general concept
of work or employment.
26This is consistent with 803 KAR 1:065 § 3(2) which provides examples of
when an employee is “on duty” while waiting during a period of inactivity, such as
when employees engage in personal activities while waiting an unpredictable amount
of time for an assignment or for machinery to be repaired. Importantly, this section
notes during these periods “the employee is unable to use the time effectively for his
own purpose. It belongs to and is controlled by the employer. In all of these cases
waiting is an integral part of the job. The employee is engaged to wait.” Id.
Similarly, in 803 KAR 1:065 § 3(3)(a), “off duty periods” are times “during
27
which an employee is completely relieved from duty and which are long enough to
28
at or near the job site for goods to be loaded and at the final destination to take
care of the employer’s property before a return trip is working as such
employee is engaged to wait.28 This contrast, between being able to use time
effectively for the employee’s own purposes as compared with the employer’s
purposes, is raised again as to whether in 29 C.F.R. 785.17 on-call time is
work.
803 KAR 1:067 section 7, which contains the current travel time
regulation, adopts 29 C.F.R. 785.33, 785.35, 785.38 and 785.39. 29 C.F.R.
785.35 explains that the ordinary commute from home to work and back again
is not worktime.29 29 C.F.R. 785.38 explains that in contrast “[t]ime spent by
an employee in travel as part of his principal activity, such as travel from job
site to job site during the workday, must be counted as hours worked.”30 29
enable him to use the time effectively for his own purposes are not hours worked.”
This section clarifies:
[An employee] is not completely relieved from duty and cannot use the
time effectively for his own purposes unless he is definitely told in
advance that he may leave the job and that he will not have to commence
work until a definitely specified hour has arrived. Whether the time is
long enough to enable him to use the time effectively for his own
purposes depends upon all of the facts and circumstances of the case.
28 803 KAR 1:065 § 3(3)(b) provides a similar trucker scenario.
Similarly, 803 KAR 1:065 § 7(2) explains that “[n]ormal travel from home to
29
work is not worktime.”
30 803 KAR 1:065 § 7(3) explains “travel that is worktime” as follows:
Time spent by an employee in travel as part of his principal activity,
such as travel from job site to job site during the workday, must be
counted as hours worked. Where an employee is required to report at
a meeting place to receive instructions or to perform other work there,
the travel from the designated place to the work place is part of the
day’s work, and must be counted as hours worked.
29
C.F.R. 785.38 provides examples of when travel time is work time as including
when “an employee is required to report at a meeting place to receive
instructions . . . or to pick up and to carry tools[.]”
803 KAR 1:067 section 6, while at first blush is not directly applicable,
as it establishes the requirements for lectures, meetings and training programs
by incorporating 29 C.F.R. 785.27 through 785.32, also provides additional
clarity in the difference between work and non-work hours. The basic
distinction between work and non-work hours is that when attendance is
involuntary because it is required, these are work hours, 29 C.F.R. 785.28,
while if attendance is voluntary and the employee engages in such activity that
is not directly related to the job and does not take place during work hours,
such time is not compensable as work, 29 C.F.R. 785.29.31
As should be evident from this review, going through security
checkpoints does not perfectly fit into these categories but the purpose of this
security time and what employees can or cannot do during this time, and the
fact that this process is required by the employer, is highly relevant to
The wording of both 29 C.F.R. 785.38 and 803 KAR 1:065 § 7(3) raises the question as
to whether a security checkpoint is one job site which must be traveled from to reach
another job site, where the employee commences work, or if the security checkpoint
could be considered part of a larger job site, with going through security being part of
the principal activity.
31 803 KAR 1:065 § 6(1) provides four specific criteria that must be met for
attendance at lectures, meetings and trainings to not be considered “working time.”
Among these are that attendance is voluntary. In defining “involuntary attendance,”
803 KAR 1:065 § 6(1) explains: “Attendance is not voluntary if it is required by the
employer. It is not voluntary if the employee is given to understand or led to believe
that his present working conditions or the continuance of his employment would be
adversely affected by nonattendance.”
30
determining whether it is compensable. I believe under the KDWS regulations
that the employees’ allegations are more than sufficient to maintain this action
for unpaid wages for the time they mandatorily must spend passing through
security for UPS’s benefit. However, whether this time is definitively
compensable cannot be resolved at this juncture.
V. EVEN IF THE FEDERAL LAW APPLIES, REVERSAL FOR FURTHER
FINDINGS IS STILL WARRANTED
Even assuming that the majority opinion is correct that our legislature or
the KDWS have sub silentio adopted the Federal Law generally (a conclusion
that I strongly disagree with), the majority opinion errs in its application of it at
this juncture with the limited record before us. The United States Supreme
Court concluded in Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 37, (2014),
that anti-theft security screenings upon leaving work are not “integral and
indispensable to the principal activities that an employee is employed to
perform” as such screenings are not “an intrinsic element of those activities
and one with which the employee cannot dispense if he is to perform his
principal activities.” Vance followed this reasoning, also, for Amazon’s anti-
theft security screenings.
However, even if these cases were to apply, strong distinguishing factors
here are that the limited evidence we have is that UPS’s screenings at its
Worldport facility were not principally for anti-theft purposes and that these
screening processes took place at both ends of the workday. Vance specifically
disclaimed that the security screening which only occurred after the employees
31
completed their work, could be characterized as either travel from job site to
job site or as wait time, “because [the employees] do not perform or anticipate
performing other principal job activities after the screening.” 852 F.3d at 615.
These distinguishing factors alone, should have compelled a reversal.
More apt of a comparison to the situation at hand can be found in
Steiner v. Mitchell, 350 U.S. 247, 247, (1956), a “case which raise[d] the issue of
coverage under the Fair Labor Standards Act, as Amended by the Portal-to-
Portal Act . . . with respect to work performed before or after the direct or
productive labor for which the worker is primarily paid.”
The precise question [in Steiner] [was] whether workers in a battery
plant must be paid as a part of their ‘principal’ activities for the
time incident to changing clothes at the beginning of the shift and
showering at the end, where they must make extensive use of
dangerously caustic and toxic materials, and are compelled by
circumstances, including vital considerations of health hygiene, to
change clothes and to shower in facilities which state law requires
their employer to provide, or whether these activities are
‘preliminary’ or ‘postliminary’ within the meaning of the Portal-to-
Portal Act and, therefore, not to be included in measuring the work
time for which compensation is required under the Fair Labor
Standards Act.
Id. The specific hazards employees faced in Steiner was exposure to lead in
various forms and sulphuric acid. Id. at 249-50.
Relevant considerations for the Supreme Court included that showering
and changing clothes was mandated by state law, was also a requirement of
the employer being able to obtain workers compensation insurance, and that
such practices were needed for the employees’ health. The Supreme Court
recounted that the “[s]afe operation [of the battery plant] . . . requires the
removal of clothing and showering at the end of the work period. This has
32
become a recognized part of industrial hygiene programs in the industry, and
the state law of Tennessee requires facilities for this purpose.” Id. at 250,
(emphasis added). The Supreme Court noted that the employer’s requirement
that the workers change clothing and shower was also needed so the employer
could obtain the legally mandated workers compensation insurance which
covered lead poisoning as a compensable occupational disease because “the
insurance carrier would not accept the insurance risk if defendants refused to
have showering and clothes-changing facilities for their employees.” Id. at 251.
Finally, the Supreme Court recounted that “the employees testified and the
foreman declared in a signed statement that ‘In the afternoon the men are
required by the company to take a bath because lead oxide might be absorbed
into the blood stream. It protects the company and the employee both.’” Id. at
251.
Given this evidence, the Supreme Court concluded that changing clothes
before and showering after a shift under these circumstances was “an integral
and indispensable part of the principal activities for which covered workmen
are employed and are not specifically excluded by Section 4(a) (1) [of the Portal-
to-Portal Act][,]” reasoning “it would be difficult to conjure up an instance
where changing clothes and showering are more clearly an integral and
indispensable part of the principal activity of the employment than in the case
of these employees.” Id. at 256.
Another illustrative case is that of Mitchell v. King Packing Co., 350 U.S.
260 (1956). In Mitchell, knifemen at a meatpacking plant were required to
33
sharpen their knives outside of their work shifts so that the knives would be
sharp enough to perform butchering tasks. Id. at 262. The Supreme Court
ruled:
We believe the facts clearly demonstrate that the knife-sharpening
activities of these workmen are an integral part of and
indispensable to the various butchering activities for which they
were principally employed, and that they must be compensated for
by respondent in compliance with the Fair Labor Standards Act, as
amended by the Portal-to-Portal Act, and as construed by us today
in Steiner v. Mitchell.
Id. at 263.
Similarly, I believe that any employee in the class who must pass
through security screenings so that UPS can (1) comply with mandatory TSA,
DEA and FDA regulations, (2) satisfy C-TPAT screening requirements (thus
gaining expedited customs processing for the packages it imports, resulting in
the rapid delivery customers have come to expect), and (3) honor whatever
additional screening requirements for which its shipping partners have
contracted, may be entitled to compensation for this time. If these
requirements apply to the security screenings the workers in the class are
required to complete, then if the employees did not pass through such security,
UPS could not lawfully, expeditiously, or contractually conduct its shipping
business. By going through such screenings, employees facilitate and make
possible the performance of UPS’s packaging shipping business in general and,
thus, this time may be characterized as integral and indispensable to the
34
employee’s principal activities for UPS even under the rigorous standards of the
Federal Law.32
VI. CONCLUSION
I disagree with the majority opinion’s conclusion that the grant of partial
judgment on the pleadings was appropriate. I believe I have amply established
that there are potential facts that the workers could prove that would entitle
them to relief. Just as the battery plant workers could not assemble batteries
without changing their clothing and showering, and the knifemen could not
butcher without sharpening their knives, the as yet undetermined facts may
establish that UPS could not ship its packages without its employees going
through such security screenings. Accordingly, I would reverse and remand for
further factual findings and proceedings.
Keller and Lambert, JJ., join.
COUNSEL FOR APPELLANTS:
Andrew Michael Grabhorn
Michael Douglas Grabhorn
Grabhorn Law
Andrew John Horne
Horne Law Office
32 Of course, not all of these requirements may be necessary for such
screenings to still be integral and indispensable to the employee’s principal activities.
35
COUNSEL FOR APPELLEES:
Samuel Benjamin Goldstein
Joseph Russell Palmore
Morrison & Foerster, LLP
Kyle Donald Johnson
Charles Laurence Woods, III
Frost Brown Todd, LLC
John Choate Roach
Ransdell Roach & Royce, PLLC
COUNSEL FOR AMICUS, AIRLINES
FOR AMERICA:
James Burton Lind
Vorys, Sater, Seymour & Pease, LLP
COUNSEL FOR AMICUS, CHAMBER
OF COMMERCE OF THE UNITED
STATES OF AMERICA:
Philip Williamson
Taft Stettinius & Hollister, LLP
COUNSEL FOR AMICUS, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS
LOCAL UNION 369:
Benjamin Sequoyah Basil
Schulz Messex Dermody, PLLC
COUNSEL FOR AMICUS, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS LOCAL 783:
Jerome Park Prather
Garmer & Prather, PLLC
36
COUNSEL FOR AMICUS, KENTUCKY CHAMBER
OF COMMERCE:
Philip Williamson
Taft Stettinius & Hollister, LLP
COUNSEL FOR AMICUS, KENTUCKY EQUAL
JUSTICE CENTER:
John Saoirse Friend
Friend Law, PSC
COUNSEL FOR AMICUS, KENTUCKY
JUSTICE ASSOCIATION:
Michele Diane Henry
Craig Henry, PLC
COUNSEL FOR AMICUS, KENTUCKY RETAIL
FEDERATION:
Philip Williamson
Taft Stettinius & Hollister, LLP
COUNSEL FOR AMICUS, NATIONAL
RETAIL FEDERATION:
Philip Williamson
Taft Stettinius & Hollister, LLP
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