No NTEGRITY TAFFING OLUTIONS NC - PDF document

ITIGATION Arlington, VA 22209 Retail Litigation Center, Inc.ESOURCE 535-6030 Society for Human Resource Management ODDTEVEN Washington, DC 20062 Chamber of Commerce of the United States of America UENTIN IEGELSSOCIATION ANUFACTURERSWashington, DC 20001 Amicus Curiae National Association of Page INTEREST OF AMICI CURIAE ................................ 1STATEMENT .............................................................. 4ARGUMENT ..................................... 6ARGUMENT ............................................................... 8INTH IRCUITREATES IGNIFICANT EGAL NCERTAINTY AND OTENTIAL INANCIAL IABILITY FOR HOUSANDS OF MPLOYERS HROUGHOUT THE ATION .................................. 8INTH IRCUITMMEDIATE EALORLD MPLICATIONS .......... 11ON .......................................................... 13 (M.D. Ala. 2009) ................ Bonilla v. Baker Concrete Constr., Inc1077 (2007) .................... r. 4, 2013) ........................................ Genesis HealthCare Corp. v. Symczyk1523 (2013) ......................................... Gorman v. Consol. Edison Corp1093 (2008) .................... 546 U.S. 21 (2005) ............................................... 27, 2009) ........................................ 350 U.S. 247 (1956) ..................................... 5, 7, 11 Fed. Corr. Inst., Allenwood, Pa.579 (2010) ........................................... Fair Labor Standards Act, ............................................................ 9, 10 262 ..................................... 4, 6, 8 § 254(a) .................................................................. 1st Am. Compl., 15, 2010) ......................................... Federal Judicial Caseload Statistics (2002) ........ Federal Judicial Caseload Statistics (2012) ........ Cortez v. Ross Dress for Less, Inc.No. 5:13-cv-01298 (C.D. Cal. July 24, 2013) ...... Kalin v. Apple, Inc.No. 3:13-cv-04727 (N.D. Cal. Oct. 10, 2013) ...... Roberts v. TJX Cos.No. 3:13-cv-04731 (N.D. Cal. Oct. 10, 2013) ...... Spencer Soper, , Morning Call (Allentown, The Fair Labor Standards Act: Is It Meeting the Needs of the Twenty-First Hearing Before the H. Comm. on Educ. & the Workforce AMICI CURIAERetail Litigation Center, Inc. s largest and most inno-ests are represented by RLC operate throughout the courts with retail industry perspectives on important Amicus curiae the Chamber of Commerce of the United States of America (Chamber) is the worlds direct members and indirectly represents the inter-sector, and from every region of the country. An im-portant function of the Chamber is to represent the interests of its members in matters before Congress, amicus curiae No counsel for a party authored this brief in whole or in part, and no person other than the amici, their members, or their counsel made a monetary contribution intended to fund the preparation or submission of this brief. Petitioner has filed a blanket consent to the filing of amicus briefs. Respondents written consent to the filing of this brief has been filed with the Clerk. Counsel of record for petitioner and respondents received notice of the s intent to file this brief at least 10 days be-fore the due date. Amicus curiaeagement (SHRM) is the worlds largest association devoted to human resource management. SHRM represents over 250,000 human resource profession-SHRM, as set forth in its bylaws, are to promote the use of sound and ethical human resource manage-ment practices in the profession, and to (a) be a rec-ognized world leader in human resource manage-ment; (b) provide high-quality, dynamic, and respon-sive programs and service to its customers with in-terests in human resource management; (c) be the ment issues; (d) facilitate the development and guide (e) establish, monitor, and update standards for the more than 575 affiliated chapters within the United Amicus curiae ation in the United States, representing small and y industrial sector and in lion men and women, contributes more than $1.8 trillion to the American economy annually, has the counts for two-thirds of private-sector research and United States. therefore have a significant interest in promoting certainty in the law of the workplace. The vast ma-with the myriad statutes governing the workplace, while at the same time maintaining and creating those efforts by fostering unnecessary and costly liti-of 1938 (FLSA), 29 U.S.C. tury Workplace?, Hearing Before the Subcomm. on the employer community has been inundated by an ample, a total of 2,035 FLSA actions were com-2002. Admin. Office of the U.S. Courts, cial Caseload Statistics min. Office of the U.S. Courts, 49 (2012). STATEMENT 1. Responding to what it believed were overly §§ 251-262. In relevant part, the Portal-to-Portal Act punishment under the [FLSA] on account of the failure of such employer to pay an employee . . . wages . . . on account of any of the following activ-(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is inary to said principal activity or activitieswhich occur either prior to the time on any par-tivity or activities. . . . The Portal-to-Portal Act does not define what constitutes principal activity or activities,Ž nor does law presented by this case. ARGUMENT INTH IRCUITNCERTAINTY AND NORMOUS INANCIAL IABILITY FOR HOU-MPLOYERS HROUGHOUT THE For over half a century, the Department of Labor generally noncompensable under the FLSA. C.F.R. §§ 790.7(g) & 790.8(c) (explaining, in guidance first promulgated shortly after the Portal-to-Portal postliminary activities). Moreover, prior to the Ninth district courts had unifoactivity in a wide variety of settings. 1359 (M.D. Ala. 2009) (food-processing plant); Cal. Mar. 4, 2013) (distribution center); Even cases involving federal workplaces had reached U.S. Dept of Justice, Fed. Bureau of Prisons Corr. Inst., Allenwood, Pa.The Ninth Circuits decision constitutes a radical pretation and well-established precedent. That, in employees who must otherwise undergo such screen-ing. In this case alone, respondents counsel has as-serted that the security-screening issue presents more than $100 million in potential liability. See Spencer Soper, Morning Call (Allentown, Pa.), Apr. 29, 2013, at A1. garded as mere puffery, one must understand two scope involving tens of thousands of employees. sue on behalf of themselves and other employees lective actions under the FLSA often seek to repre-sent all of an employers current and former employ-ees, regardless of their geographic location. Am. Compl. ¶ 21, , No. 2:10-cv-01854 (D. Nev. Dec. 15, 2010) as [a]ll persons em-ployed by [Integrity] as within the United States at any time within three years prior toŽ this actions filing); former employee who sought to sue on behalf of thousands of similarly situated employees through-out the United States). Second, the FLSA grants plaintiffs wide discre- 29 U.S.C. § 216(b) (providing FLSA suits may be filed in anyŽ federal court of competent jurisdictionŽ). nancial liability created by the Ninth Circuits deci-Circuits decision has already attracted litigants the fact that most large and medium-sized employers„the principal targets of putative collective actions under the FLSA„do the expansive geographic boundaries of the Ninth Circuit. In addition to the cases cited by Integrity (Pet. 26-27), plaintiffs seek-filed several copycat security-screening cases within , Compl. ¶ 35, ployee seeking to represent [a]ll current and former ll current and former worked in the United States at [the defendants] re-dants] re-Ž)Compl. ¶ 27, filed by one employee seeking to represent [a]ll this actionŽ); Compl. ¶ 14, Cortez v. Ross Dress for ployees seeking to represent all of the defendants were employed by the defendant at any time during the three years prior to the ated nationwide legal uncertainty and enormous po-tential financial liability for thousands of employers. Regardless of whether this Court ultimately agrees or disagrees with the Ninth Circuits decision on the a timely and final resolution of the security-screening question. This Court has acted to remove legal uncertainty under the FLSA in circumstances similar to this case. IBP, Inc. v. Alvarez, 546 address one-to-one circuit split on FLSA issue); INTH IRCUITEALMPLICATIONS Given the widespread view in the employer community that security screening is a preliminary or postliminary activity excluded from the require-ments of the FLSA (a legitimate view created by the precedent discussed above), compliance with the sources and capital investment necessary to ensure tries where productivity is critical, margins are thin, increases in cost, when multiplied by thousands of employees, can make the difference between profit and loss (with devastating screening process or their preexisting time-keeping systems fails to recognize the practical reality in losses each year, resulting in higher prices for con-sumers. To combat employee theft, many retailers r the conclusion of em-ployee work shifts. Advancing the time and location of security screening so that it occurs before employ-effectiveness of such screening. As demonstrated by the workplaces at issue in this case and those at issue in the security-screening cases decided prior to the Ninth Circuits decision, the effects of the Ninth Circuits decision extend far ployers doing business in high-security environments (e.g., airports, skyscrapers, and government build- cide with a buildings or a facilitys physical bounda-thousands of employers to take immediate and po-tentially costly proactive action in an effort to protect already being spawned by the Ninth Circuits deci-sion. As respondents own counsel admitted to a na-cuits decision, the security-screening issue makes the petition, the petition should be granted. ENNETH EATHAFORDROSKAUER OSE LLP 2049 Century Park East EISBURGROSKAUER OSE LLP 1001 Pennsylvania Ave., NW Washington, DC 20004 rmeisburg@proskauer.comproskauer.comAdditional Counsel Listed on Following Page ITIGATION Arlington, VA 22209 Retail Litigation Center, Inc.ESOURCE 535-6030 Society for Human Resource Management ODDTEVEN Washington, DC 20062 Chamber of Commerce of the United States of America UENTIN IEGELSSOCIATION ANUFACTURERSWashington, DC 20001 Amicus Curiae National Association of