FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LINDSEY BUERO, Individually and No. 20-35633
on behalf of all similarly situated,
Plaintiff-Appellant, D.C. No.
3:19-cv-00974-MO
v.
AMAZON.COM SERVICES, INC., ORDER
DBA Amazon Fulfillment CERTIFYING
Services, Inc., a foreign QUESTION TO
corporation; AMAZON.COM, INC., THE SUPREME
a foreign corporation, COURT OF
Defendants-Appellees. OREGON
Filed December 22, 2021
Before: Susan P. Graber and Morgan Christen, Circuit
Judges, and Raner C. Collins,* District Judge.
Order
*
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
2 BUERO V. AMAZON.COM SERVICES
SUMMARY**
Oregon Law
The panel certified to the Supreme Court of Oregon the
following question:
Under Oregon law, is time that employees
spend on the employer’s premises waiting for
and undergoing mandatory security screenings
compensable?
COUNSEL
Lisa T. Hunt, Law Office of Lisa T. Hunt LLC, Lake
Oswego, Oregon; David A. Schuck, Schuck Law LLC,
Vancouver, Washington; for Plaintiff-Appellant.
Michael E. Kenneally and David B. Salmons, Morgan Lewis
Bockius LLP, Washington, D.C.; Richard G. Rosenblatt,
Morgan Lewis & Bockius LLP, Princeton, New Jersey; for
Defendants-Appellees.
…
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BUERO V. AMAZON.COM SERVICES 3
ORDER
Plaintiff Lindsey Buero filed a class action complaint
against Amazon.com Services, Inc. and Amazon.com, Inc.,
alleging that Defendants’ failure to compensate employees
for time spent waiting for and passing through mandatory
security screenings violates Oregon’s wage and hour laws.
The district court granted Defendants’ motion for judgment
on the pleadings, concluding that Oregon wage and hour law
incorporates the standard set forth in the Portal-to-Portal Act,
29 U.S.C. § 254. Plaintiff appealed the district court’s order.
We respectfully ask the Oregon Supreme Court to answer
the certified question presented below pursuant to section
28.200 of the Oregon Revised Statutes, because we have
concluded that it raises an important, dispositive question of
state law: whether time employees spend at an employer’s
premises waiting for and undergoing mandatory security
screening is compensable under Oregon law.1 See W.
Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 811 P.2d
627 (Or. 1991). We offer the following statement of relevant
facts and explanation of the “nature of the controversy in
which the question[ ] arose.”
Or. Rev. Stat. § 28.210(2)
(2005).
I. Facts
Defendants Amazon.com Services, Inc. and Amazon.com,
Inc. constitute a major multinational technology and retail
operation focusing on e-commerce and cloud computing.
Defendants require their employees to go through a security
screening at the end of each shift and before exiting for
1
Appellant’s motion for certification (Dkt. #6) is GRANTED.
4 BUERO V. AMAZON.COM SERVICES
offsite meal breaks. The employees must “punch out” before
going through the security screening, and they are not paid
for the time spent waiting for and going through the security
screening, which can include bag checks and x-rays of
personal belongings. Defendants require these screenings as
a loss-prevention practice to avoid theft of products. Plaintiff
alleges the required security screenings take anywhere from
two to fifteen minutes per shift and that Defendants did not
make any adjustment in their timekeeping system to account
for the time it takes to complete security screenings.
Plaintiff Lindsey Buero filed this action on May 22, 2019,
alleging an individual claim for unpaid wages and penalty
wages. The penalty wage claim is for the untimely final
payment of wages following the end of Buero’s employment
on December 22, 2018. Plaintiff further alleges class claims
for two putative classes: (1) plaintiffs claiming unpaid wages
that accrued during their term of employment (i.e. the
“unpaid-wages class”) pursuant to sections 652.120 and
653.010 of the Oregon Revised Statutes; and (2) plaintiffs
claiming untimely final pay upon termination of their
employment (i.e., the “late-payment class”) pursuant to
section 652.140 of the Oregon Revised Statutes. For both the
individual and class claims arising from the late payment of
final wages in violation of section 652.140, Plaintiff
additionally seeks penalty wages under section 652.150 and
mandatory attorney fees and cost reimbursement under
section 652.200 of the Oregon Revised Statutes.
Defendants filed a motion for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
BUERO V. AMAZON.COM SERVICES 5
Procedure on all claims except Plaintiff’s individual late-payment claim. Defendants argued that Oregon has
incorporated the Portal-to-Portal Act amendments to the Fair
Labor Standards Act (“FLSA”) and that the Supreme Court’s
decision in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S.
27 (2014), defeats Plaintiff’s state-law claims. In Busk, the
Supreme Court held that employees’ time spent passing
through security screenings at Amazon.com fulfillment
centers was not compensable under the FLSA as amended by
the Portal-to-Portal Act.
Id. at 29. The district court granted
Defendants’ motion on January 31, 2020, concluding that
Oregon wage and hour law tracks federal law and therefore
incorporates the standard in the Portal-to-Portal Act. The
district court then entered final judgment on the dismissed
claims and certified Plaintiff’s interlocutory appeal.
II. Discussion
The key issues in this case are whether: (1) Oregon’s
wage and hour laws track the FLSA and may be interpreted
under federal law; and (2) the Supreme Court’s interpretation
of the Portal-to-Portal Act, 29 U.S.C. § 254, in Busk applies
to Plaintiff’s claims.
Plaintiff’s claims turn on whether time spent undergoing
mandatory security screenings before leaving the workplace
premises constitutes “hours worked” under Oregon law. The
Bureau of Labor and Industries (BOLI) has defined “hours
worked” as:
[A]ll hours for which an employee is
employed by and required to give to the
employer and includes all time during which
an employee is necessarily required to be on
6 BUERO V. AMAZON.COM SERVICES
the employer’s premises, on duty or at a
prescribed work place and all time the
employee is suffered or permitted to work.
“Hours worked” includes “work time” as
defined in ORS 653.010(11).
OR. ADMIN. R. 839-020-0004(19).
Congress passed the Portal-to-Portal Act in 1947 to
exempt employers from FLSA liability for claims based on
“activities which are preliminary to or postliminary to” the
“performance of the principal activity or activities” that an
employee is employed to perform. Busk, 547 U.S. at 33
(quoting 29 U.S.C. § 254(a)). The Supreme Court has
interpreted the term “principal activities” to include all
activities that are an “integral and indispensable part of the
principal activities.” Steiner v. Mitchell,
350 U.S. 247,
252–53 (1956).
Neither party argues that the Oregon legislature has
expressly adopted the Portal-to-Portal Act, but Defendants
cite an Oregon administrative rule that provides:
Preparatory and concluding activities are
considered hours worked if the activities
performed by the employee are an integral
and indispensable part of a principal activity
for which the employee is employed.
OR. ADMIN. R. 839-020-0043(1).
Plaintiff argues that Oregon’s wage and hour laws do not
incorporate the FLSA, and that Oregon “sought to
distinguish, rather than to adopt,” the Portal-to-Portal Act as
BUERO V. AMAZON.COM SERVICES 7
evidenced by the following facts: “(1) there is no express
textual reference to the Act in Oregon’s statutes or rules;” and
(2) “the express exclusions from compensability for specified
activities under the Act can be found nowhere in Oregon
law.” Meanwhile, Defendants contend that “Oregon courts
have repeatedly noted that the state’s wage-and-hour law is
‘patterned after’ or ‘modeled on’ its federal counterpart,” and
that Oregon’s regulation defining preparatory and concluding
activities, Oregon Admin. R. 839-020-0043, uses the same
text as the Supreme Court’s language interpreting the Portal- to-Portal Act. According to Defendants, this adoption
suggests that Oregon has incorporated the federal scheme.
Pursuant to section 28.200 of the Oregon Revised
Statutes, a certified question must be one that “may be
determinative of the cause;” and it must appear to the
certifying court that there is no controlling precedent in the
decisions of the Oregon Supreme Court or the Oregon Court
of Appeals. W. Helicopter Servs., Inc., 811 P.2d at 629 (Or.
1991). Both criteria are met here. First, because the Supreme
Court has clearly ruled that comparable security screenings
are not compensable under the Portal-to-Portal Act, the
outcome of this case turns on whether Oregon law follows the
federal scheme. Second, the Oregon Supreme Court has not
yet addressed whether Oregon has adopted the federal “hours
worked” standard. We seek guidance from the Oregon
Supreme Court in this instance because it is not clear to us
whether the similarities between
Or. Admin. R. 839-020-0043
and the Portal-to-Portal Act should be construed as an
incorporation of the federal standard.
8 BUERO V. AMAZON.COM SERVICES
III. Certified Question of Law
We respectfully certify the following question to the
Oregon Supreme Court pursuant to section 28.200 of the
Oregon Revised Statutes and Oregon Rule of Appellate
Procedure 12.20:
Under Oregon law, is time that employees spend on the
employer’s premises waiting for and undergoing mandatory
security screenings compensable?
IV. Conclusion
We do not intend our framing of this question to restrict
the Oregon Supreme Court’s consideration of any issues that
it deems relevant. We have previously acknowledged both
the Oregon Supreme Court’s ability to “reformulate the
relevant state law questions as it perceives them to be in light
of the contentions of the parties,” and “our obligation to abide
by that court’s determination of the state law questions
presented.” Lombardo v. Warner, 391 F.3d 1008, 1010 (9th
Cir. 2004) (en banc) (citations omitted). If the Oregon
Supreme Court resolves this question, we will resolve the
issue in our case according to its answer.
The Clerk of the court is hereby directed to immediately
transmit to the Oregon Supreme Court, under official seal of
the Ninth Circuit, a copy of this order and request for
certification and all relevant briefs and excerpts of record
pursuant to section 28.200 of the Oregon Revised Statutes
and Oregon Rule of Appellate Procedure 12.20.
Further proceedings in our court on the certified question
are stayed pending the Oregon Supreme Court’s decision
BUERO V. AMAZON.COM SERVICES 9
whether it will accept review, and if so, our receipt of the
answer to the certified question. The Clerk is directed to
administratively close this docket, pending further order. The
case is withdrawn from submission, in pertinent part, until
further order from this court. The panel will resume control
and jurisdiction on the certified question upon receiving an
answer to the certified question or upon the Oregon Supreme
Court’s decision to decline to answer the certified question.
IT IS SO ORDERED.
/s/ Susan P. Graber
Susan P. Graber, Circuit Judge,
Presiding
