56 Trial Lawyer • Spring 2023 Between the Sheets Lisa T. Hunt Cody Hoesly Nadia Dahab By Cody Hoesly, OTLA Guardian By Lisa T. Hunt By Nadia Dahab, OTLA Guardian DECISIONS OF THE OREGON SUPREME COURT Oregon law now permits employers to require employees to remain on the premises after work and submit to employers’ security screenings without compensation. Buero v. Amazon.com Svcs., 369 Or 339 (2022), Duncan, J. Lisa T. Hunt represented the plaintiffs. In this wage and hour class action brought by Lindsey Buero and similarly situated current and former employees of the defendant, Amazon, the plaintiffs sought unpaid wages for, among other things, off-the-clock time spent complying with Amazon’s mandatory security screenings prior to being permitted to leave the work premises. The district court ruled that plaintiffs were not entitled to compensation under a Rule promulgated by BOLI (Rule 43) which is addressed only to the compensability of “preparatory and concluding activities” of work and uses similar terms to a federal statute enacted expressly to exclude such activities from compensability. The plaintiffs appealed, and the Ninth Circuit Court of Appeals certified the following question to the Oregon Supreme Court: “Under Oregon law, is time that employees spend on the employer’s premises waiting for and undergoing mandatory security screenings compensable?” In that certified question proceeding, Chief Justice Flynn dissented. The dissent first examined the plain text of Rule 43 and its identification of activities that are compensable. The dissent further considered pertinent statutory definitions for compensable “work time” and “hours worked” that respectively identify “time worked and time of authorized attendance” as well as time “the employee is necessarily required to be on the employer’s premises” as being compensable. After lastly considering the pertinent legislative history, the dissent would have concluded the time spent complying with Amazon’s mandatory security screenings was compensable under Oregon law. Conversely, the majority first sought to determine whether Oregon wage and hour law mirrored federal law. Toward that end, the majority first examined federal statutes and regulations governing…, the majority first examined federal statutes and regulations governing compensable activities and excluding from compensability time spent in “preliminary and postliminary” activities to work. The majority next considered the legislative history of Oregon’s wage and hour statutes, including what the dissent characterized as “one-sided commentary” in light of ample evidence of an intent not to follow federal law. After so doing, the majority concluded Oregon’s wage and hour law was intended to mirror federal law. Thereafter, the majority turned to the text of Oregon’s pertinent statutes, rules and statutory definitions. The majority determined the phrase “time of authorized attendance,” which is not found in federal law, was ambiguous. Because the majority further found that dictionary definitions for the phrase were also ambiguous, the court resolved to leave the
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