Thomas, et al. v. Amazon.com Services, Inc., et al.

Filing 27

Memorandum Opinion and Order: For the reasons set forth in this order, Defendants' Motion for Judgment on the Pleadings (Doc. No. 16 ) is GRANTED IN PART and DENIED IN PART. Defendant' Motion is GRANTED to the extent Plaintiffs� 39; claim is based on the underpayment of overtime compensation related to time spent proceeding through the post-shift security screening process. Defendants' Motion is DENIED to the extent Plaintiffs' claim is based on the underpayment of overtime compensation related to time spent proceeding through the pre-lunch security screening process. Entered by Judge Pamela A. Barker on 5/21/2020. (L,Ja)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SAVON THOMAS, et al.,

CASE NO. 1:19-CV-01696
Plaintiffs,

-vs-

JUDGE PAMELA A. BARKER

AMAZON.COM SERVICES, INC., et al.,
Defendants.

MEMORANDUM OF OPINION AND
ORDER

This matter comes before the Court upon the Motion for Judgment on the Pleadings
(“Motion”) of Defendants Amazon.com Services, Inc. and Amazon.com, Inc. (collectively,
“Defendants”). (Doc. No. 16.) Plaintiffs Savon Thomas and Colleen McLaughlin (collectively,
“Plaintiffs”) filed a brief in opposition to Defendants’ Motion on November 25, 2019, to which
Defendants replied on December 23, 2019. (Doc. Nos. 19, 20.) On January 24, 2020, Plaintiffs filed
a Notice of Supplemental Authority, to which Defendants responded on January 30, 2020. (Doc.
Nos. 21, 22.) On February 13, 2020, Defendants also filed a Notice of Supplemental Authority, to
which Plaintiffs replied on February 20, 2020. (Doc. Nos. 25, 26.)
For the following reasons, Defendants’ Motion for Judgment on the Pleadings (Doc. No. 16)
is GRANTED IN PART and DENIED IN PART.

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I.

Background
a. Factual Allegations
Defendants jointly operate logistics facilities throughout Ohio (the “Ohio Amazon Fulfillment

Centers”). (Doc. No. 1 at ¶ 13.) 1 Defendants employ Plaintiffs and other similarly situated warehouse
workers to perform tasks related to merchandise stored and eventually shipped to customers from the
Ohio Amazon Fulfillment Centers. (Id. at ¶ 14.) Defendants require warehouse workers to “clock
in” by the beginning of their scheduled shift and to “clock out” at the end of their scheduled shifts.
(Id. at ¶ 18.) After clocking out, Defendants require warehouse workers to proceed through a
screening process prior to exiting the Ohio Amazon Fulfillment Centers. (Id. at ¶ 19.) In addition,
Defendants require warehouse workers to proceed through the same screening process prior to taking
their lunch breaks. (Id. at ¶ 20.)
As part of this mandatory post-shift and pre-lunch screening process, warehouse workers must
wait in lines leading up to the security screening areas, proceed through a metal detector, and submit
to an inspection of all bags and personal items the employee is carrying. (Id. at ¶¶ 21-24.) The
security screening process routinely takes ten to twenty minutes to complete and can take longer with
delays. (Id. at ¶ 27.) However, Defendants have never paid warehouse workers for time spent
proceeding through this required post-shift and pre-lunch screening process. (Id. at ¶ 28.) For
example, warehouse workers’ lunch breaks are significantly reduced due to the required pre-lunch
security screening, but Defendants always deduct a full thirty minutes for such lunch breaks. (Id. at
¶ 29.)

1

The allegations contained in Plaintiffs’ Complaint are assumed to be true solely for purposes of ruling on Defendants’
Motion.

2

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b. Procedural History
On July 25, 2019, Plaintiffs filed a putative class action against Defendants in this Court,
setting forth a single claim under the Ohio Minimum Fair Wage Standards Act (“OMFWSA”). (Doc.
No. 1.) Plaintiffs assert that because Defendants have not paid warehouse workers for the time spent
going through the mandatory screening process described above, warehouse workers were not paid
for all hours worked, and such time was not counted for purposes of determining their entitlement to
overtime. (Id. at ¶ 30.) According to Plaintiffs, this resulted in the underpayment of overtime
compensation for every week in which warehouse workers otherwise worked forty hours in a
workweek in violation of the OMFWSA. (Id. at ¶¶ 30, 39-53.)
On October 1, 2019, Defendants filed an Answer to Plaintiffs’ Complaint. (Doc. No. 14.)
Therein, Defendants allege that warehouse workers are not required to pass through a security
screening prior to taking their meal breaks because Defendants provide on-site break room facilities
inside the secured area where employees, including Plaintiffs, can take their meal breaks without
having to pass through security screening. (Id. at ¶ 20.) Defendants assert that only those employees
who choose to leave the secured area during meal breaks must pass through security screening. (Id.)
Shortly after filing their Answer, Defendants filed a Motion for Judgment on the Pleadings,
seeking to dismiss the sole count in Plaintiffs’ Complaint on several bases.

(Doc. No. 16.)

Specifically, Defendants argue that Plaintiffs’ claim fails because (1) Ohio law has incorporated the
Fair Labor Standards Act’s (“FLSA”) overtime standards, under which post-shift time spent passing
through security screening is not compensable; (2) Plaintiffs were not required to pass through
security screening when taking meal breaks; and (3) time spent walking through security screening

3

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is not “work” because it requires no exertion. (Doc. No. 17.) Defendants’ Motion has been fully
briefed and is ripe for consideration.
II.

Standard of Review
Pursuant to Rule 12(c), “[a]fter the pleadings are closed--but early enough not to delay trial--

a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “For purposes of a motion
for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing
party must be taken as true, and the motion may be granted only if the moving party is nevertheless
clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir.
2007) (citation omitted).
The same standard for deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim
applies to a Rule 12(c) motion for judgment on the pleadings. See Roth v. Guzman, 650 F.3d 603,
605 (6th Cir. 2011). In order to survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘a formulaic
recitation of a cause of action’s elements,’ and (3) allegations that suggest a ‘right to relief above a
speculative level.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007)).
The measure of a Rule 12(b)(6) challenge—whether the complaint raises a right to relief
above the speculative level—“does not ‘require heightened fact pleading of specifics, but only enough
facts to state a claim to relief that is plausible on its face.’” Bassett v. Nat’l Collegiate Athletic Ass’n,
528 F.3d 426, 430 (6th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
4

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678 (2009). Deciding whether a complaint states a claim for relief that is plausible is a “contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.”
Id. at 679.
Consequently, examination of a complaint for a plausible claim for relief is undertaken in
conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires
only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific
facts are not necessary; the statement need only “give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.”’” Gunasekera, 551 F.3d at 466 (quoting Erickson v. Pardus,
551 U.S. 89, 93 (2007)). Nonetheless, while “Rule 8 marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.
III.

Analysis
a. Whether the OMFWSA Incorporates the Portal-to-Portal Act
First, Defendants argue that Ohio Revised Code (“O.R.C.”) § 4111.03, under which Plaintiffs

bring their claim, incorporates Section 7 of the FLSA, as amended, which includes the Portal-toPortal Act. (Doc. No. 17 at 6-15.) As a result, Defendants assert that Plaintiffs’ claim for the
underpayment of overtime compensation fails because the Supreme Court has interpreted the Portalto-Portal Act to mean that post-shift time spent passing through security screening is not compensable
time. (Id.) In response, Plaintiffs contend that O.R.C. § 4111.03 does not incorporate the Portal-toPortal Act. (Doc. No. 19 at 3-12.) The Court agrees with Defendants that O.R.C. § 4111.03
incorporates the Portal-to-Portal Act, and, therefore, Plaintiffs’ claim based on time spent proceeding
through the post-shift screening process fails as a matter of law.
5

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When 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 Solutions, Inc. v.
Busk (Busk I), 574 U.S. 27, 31 (2014). However, the FLSA did not define “work” or “workweek,”
and the Supreme Court initially interpreted these terms broadly, which “provoked a flood of
litigation.” Id. In response, Congress enacted the Portal-to-Portal Act, finding that “the Fair Labor
Standards Act of 1938, as amended, has been interpreted judicially in disregard of long-established
customs, practices, and contracts between employers and employees, thereby creating wholly
unexpected liabilities, immense in amount and retroactive in operation, upon employers.” 29 U.S.C.
§ 251(a). The Portal-to-Portal Act “exempted employers from liability for future claims based on
two categories of work-related activities.” Busk I, 574 U.S. at 32. Specifically, the Portal-to-Portal
Act provides, in relevant part, as follows:
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, . . . on account
of the failure of such employer . . . 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.
29 U.S.C. § 254(a) (emphasis added).
Importantly, in addressing claims as to whether time spent performing certain activities is
compensable under the FLSA, the Supreme Court has made clear that the Portal-to-Portal Act is an
6

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amendment to the FLSA. See Busk I, 574 U.S. at 29 (“The question presented is whether the
employees’ time spent waiting to undergo and undergoing those security screenings is compensable
under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., as amended by the
Portal–to–Portal Act of 1947, § 251 et seq.”); IBP, Inc. v. Alvarez, 546 U.S. 21, 26 (2005) (“Congress
passed the Portal-to-Portal Act, amending certain provisions of the FLSA.”). The Sixth Circuit has
also described the Portal-to-Portal Act “as an amendment to the FLSA” that “‘narrowed the coverage
of the [Act]’ by excluding certain ‘preliminary’ and ‘postliminary’ activities from the FLSA’s
compensation requirements.” Vance v. Amazon.com, Inc. (In re Amazon.com, Inc.), 852 F.3d 601,
607 (6th Cir. 2017). In addition, another court from this District recently held that “[t]he Portal-toPortal Act is an amendment to the FLSA, which specifically sought to clarify the overtime
compensation provisions of the FLSA, i.e. Section 7.” Duncan-Watts v. Nestle USA, Inc., No. 1:19
CV 01437, 2020 WL 589042, at *5 (N.D. Ohio Feb. 5, 2020).
In Busk I, applying the Portal-to-Portal Act, the Supreme Court addressed whether warehouse
workers’ time spent undergoing a mandatory security screening—essentially identical to the one at
issue in this case—before leaving the warehouse each day was compensable under the FLSA. 574
U.S. at 29. Ultimately, the Supreme Court found that the post-shift security screenings were
postliminary activities that are not compensable under the FLSA, as amended by the Portal-to-Portal
Act. Id. at 35.
The issue in this case is whether Ohio law incorporates the Portal-to-Portal Act, such that
Plaintiffs’ claims for compensation for time undergoing security screenings after their shift also fails
under the OMFWSA. When applying state law, this Court must “anticipate how the relevant state’s
highest court would rule in the case and are bound by controlling decisions of that court.” Vance,
7

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852 F.3d at 610 (quoting In re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005)). If, as here,
“‘the state supreme court has not yet addressed the issue,’ we render a prediction ‘by looking to all
the available data.’” Id. (quoting Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 454
(6th Cir. 2001)). “Sources of relevant data include the decisions (or dicta) of the state’s highest court
in analogous cases, pronouncements from other state courts, and regulatory guidance.” Busk v.
Integrity Staffing Solutions, Inc. (“Busk II”), 905 F.3d 387, 395 (6th Cir. 2018).
In Ohio, “[t]he primary goal of statutory construction is to ascertain and give effect to the
legislature’s intent in enacting the statute.” State v. Lowe, 112 Ohio St.3d 507, 508 (2007). “The
court must first look to the plain language of the statute itself to determine the legislative intent,” and
“[a]n unambiguous statute must be applied in a manner consistent with the plain meaning of the
statutory language.” Id.
In this case, the relevant provision of the OMWFSA provides:
An employer shall pay an employee for overtime at a wage rate of one and one-half
times the employee's wage rate for hours worked in excess of forty hours in one
workweek, in the manner and methods provided in and subject to the exemptions of
section 7 and section 13 of the “Fair Labor Standards Act of 1938,” 52 Stat. 1060, 29
U.S.C.A. 207, 213, as amended.
O.R.C. § 4111.03(A).

Sections 7 and 13 of the FLSA provide the overtime compensation

requirements and exemptions, respectively, under the FLSA. See 29 U.S.C. §§ 207, 213. Thus, as a
result of their express incorporation under Ohio law, courts routinely analyze Ohio state law overtime
claims and FLSA claims concurrently, reasoning that the outcome as to liability under either law is
invariably the same. E.g., Craig v. Bridge Bros. Trucking, LLC, 823 F.3d 382, 385 n.1 (6th Cir. 2016)
(“Because the FLSA and the OMFWSA have the same overtime requirements, the outcomes will be
the same and the claims can be evaluated together.”); Heard v. Nielson, No. 1:16-cv-1002, 2017 WL
8

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2426683, at *2 (S.D. Ohio June 2, 2017) (“Ohio law incorporates the FLSA’s definitions, standards,
and principles for its minimum wage and overtime compensation provisions. . . . Accordingly, the
claims may be analyzed together.”).
Significantly, in Duncan-Watts, as a result of the incorporation of Section 7 of the FLSA, “as
amended,” the court held that the Portal-to-Portal Act applied to Ohio state law claims for overtime
compensation under the OMFWSA because the Portal-to-Portal Act amended Section 7. 2020 WL
589042, at *5-6. In that case, as here, the plaintiff argued that “Ohio law does not incorporate the
Portal-to-Portal Act and ‘no similar law has ever been passed in Ohio that excepts preliminary and
postliminary acts from compensable time.’” Id. at *5. The court rejected the plaintiff’s argument,
reasoning:
Section 7 of the FLSA pertains to the calculation of overtime compensation. See 29
U.S.C. § 207. The Portal-to-Portal Act is an amendment to the FLSA, which
specifically sought to clarify the overtime compensation provisions of the FLSA, i.e.
Section 7. See 29 U.S.C. § 254. See also IBP, Inc. v. Alvarez, 546 U.S. 21, 24 (2005)
(characterizing the Portal-to-Portal Act as an amendment to the FLSA). Thus, under
the express direction of O.R.C. § 4111.03, overtime claims brought under the
OMFWSA are evaluated in the same manner as claims brought under Section 7 of the
FLSA, which would include the Portal-to-Portal Act.
Id. However, the court found that the plaintiff’s FLSA claim was not barred by the Portal-to-Portal
Act, and, thus, her claim under the OMFWSA survived as well. Id. at *6. The court’s holding in
Duncan-Watts is in line with several other cases that have applied the Portal-to-Portal Act to claims
under both the FLSA and the OMFWSA, although these cases did not explicitly address the issue of
whether the Portal-to-Portal Act had been adopted under Ohio law, as they likewise found that the
Portal-to-Portal Act did not preclude the plaintiffs’ claims. See Wilson v. PrimeSource Health Care
of Ohio, Inc., No. 1:16-CV-1298, 2017 WL 2869341, at *5 (N.D. Ohio July 5, 2017); Lacy v. Reddy

9

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Elec. Co., No. 3:11–cv–52, 2013 WL 3580309, at *5-6 (S.D. Ohio July 11, 2013); Twaddle v. RKE
Trucking Co., No. 2:04-CV-557, 2006 WL 840388, at *6, *13 (S.D. Ohio Mar. 29, 2006).
This Court agrees with the analysis provided by the court in Duncan-Watts, and finds that the
Portal-to-Portal Act is an amendment to Section 7 of the FLSA that is expressly incorporated into the
OMFWSA. Pursuant to O.R.C. § 4111.03, employers are required to pay employees overtime
compensation “in the manner and methods provided in and subject to the exemptions of section 7 and
section 13 of the ‘Fair Labor Standards Act of 1938,’ . . . as amended.” O.R.C. § 4111.03 (emphasis
added). Courts unequivocally regard the Portal-to-Portal Act as an amendment to the FLSA.
Additionally, the Portal-to-Portal Act altered the overtime compensation requirements provided in
Section 7 of the FLSA as a result of courts’ overly broad interpretations of that section. Specifically,
the Portal-to-Portal Act clarified that in actions brought to enforce Section 7, time spent performing
preliminary and postliminary activities is not compensable. See 29 U.S.C. § 254(a). Accordingly,
the Portal-to-Portal Act specifically amended Section 7 of the FLSA, and, as a result, is explicitly
incorporated into the OMFWSA. This conclusion is further supported by the fact that O.R.C. §
4111.03 was enacted after the Portal-to-Portal Act amended the FLSA. It seems highly unlikely that
the Ohio legislature would have incorporated the FLSA’s overtime compensation requirements, but
also intended to depart from the FLSA with respect to an important amendment affecting what work
time is compensable.
Because the Portal-to-Portal Act applies to Plaintiffs’ claim for overtime compensation under
Ohio law, Plaintiffs’ claim with respect to time spent undergoing post-shift security screenings fails
pursuant to the Supreme Court’s holding in Busk I. 574 U.S. at 29 (“The question presented is
whether the employees’ time spent waiting to undergo and undergoing those security screenings is
10

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compensable under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq., as
amended by the Portal–to–Portal Act of 1947, § 251 et seq.

We hold that the time is not

compensable.”). Such screenings are “noncompensable postliminary activities.” Id. at 35.
Plaintiffs make several arguments opposing this conclusion, but the Court finds them
unpersuasive. First, Plaintiffs rely on the Sixth Circuit’s decision in Busk II, which held that Nevada’s
and Arizona’s wage and hour statutes did not incorporate the Portal-to-Portal Act. 905 F.3d at 40205. However, Busk II is easily distinguishable from the instant matter, as neither Nevada’s nor
Arizona’s statutes explicitly incorporated the FLSA or the Portal-to-Portal Act. Id. at 404-05. Indeed,
the Sixth Circuit noted that “the Nevada legislature has chosen not to affirmatively adopt the law
anywhere in the Nevada state code,” and that “nothing in the Arizona code seems to parallel or
incorporate the Portal-to-Portal Act.” Id. at 404. At most, Nevada law paralleled certain provisions
of the FLSA, but not the Portal-to-Portal Act. Id. at 403-04. In contrast, Ohio law expressly
incorporates all of Section 7 of the FLSA, as amended. O.R.C. § 4111.03(A). Because the Portalto-Portal Act amended Section 7, it was incorporated into Ohio law, and it was not necessary to
specify the amendment by name, as Plaintiffs argue. (Doc. No. 19 at 7.) If anything, because of this
express incorporation, this case is more similar to—and actually presents even more compelling
circumstances for incorporation than—Vance, in which the Sixth Circuit found that Kentucky wage
and hour laws incorporated the Portal-to-Portal Act. 852 F.3d at 615.
Next, Plaintiffs contend that the Portal-to-Portal Act did not amend either Section 7 or Section
13—the only sections of the FLSA expressly incorporated—because the Portal-to-Portal Act is not
codified in Sections 7 and 13, but rather at 29 U.S.C. §§ 251-62. (Doc. No. 19 at 6-7.) As discussed
above, however, the Portal-to-Portal Act is an amendment to the FLSA, and the provision of the
11

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Portal-to-Portal Act at issue in this case directly affected the application of Section 7. As such, the
Court finds that the Portal-to-Portal Act did amend Section 7, despite the fact that it may not have
been codified in the same section. See Dunan-Watts, 2020 WL 589042, at *5. Indeed, Plaintiffs do
not point to any other provisions of the FLSA that may have been amended by the provision of the
Portal-to-Portal Act at issue.
Plaintiffs also assert that differences between the OMFWSA and the FLSA and the Portal-toPortal Act demonstrate that the OMFWSA does not incorporate all amendments to the FLSA, such
as the Portal-to-Portal Act. (Doc. No. 19 at 7-9.) For example, Plaintiffs point out that Ohio law has
not adopted the FLSA’s opt-in collective procedure provided for in 29 U.S.C. § 216(b). (Id. at 7-8.)
They also note that a separate provision of the Portal-to-Portal Act conflicts with Ohio law with
respect to limitations periods and liquidated damages. (Id. at 8.) But the Court finds these distinctions
irrelevant. None of these issues are relevant to the overtime compensation requirements delineated
in Section 7 of the FLSA, and, therefore, clearly have not been incorporated under Ohio law. By
contrast, the Portal-to-Portal Act’s amendments regarding what is compensable within the meaning
of Section 7 of the FLSA are precisely among the amendments to Section 7 that are incorporated into
the OMFWSA. Courts recognize that the liability imposed by Section 7 of the FLSA is identical to
that imposed by O.R.C. § 4111.03, but that other aspects of the FLSA may differ from Ohio law. See,
e.g., Heard, 2017 WL 2426683, at *4 (“Although the FLSA and the Ohio law use the same standards
to determine liability, the laws provide different measures of damages.”).
Finally, Plaintiffs argue that there is a proposed bill in the Ohio Senate that would amend the
OMFWSA to exclude preliminary and postliminary activity from Ohio’s overtime compensation
requirements, which would be unnecessary if Ohio law already excluded such activities, as under
12

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Defendants’ interpretation. (Doc. No. 21.) Plaintiffs also argue that an analysis of this bill by the
Ohio Legislative Service Commission (“OLSC”) indicates that there is currently a requirement to
compensate employees for such preliminary and postliminary tasks. (Id.) However, none of this
changes the Court’s determination that the current text incorporates the Portal-to-Portal Act, as there
are other reasons the bill may have been introduced, such as merely to clarify the law. See Big Ridge,
Inc. v. Fed. Mine Safety & Health Review Comm’n, 715 F.3d 631, 643 (7th Cir. 2013) (“This
legislative attempt to expand MSHA’s powers does not require us to interpret its existing powers
narrowly. There are plenty of possible reasons to propose such legislation besides an understanding
that MSHA currently could not demand the records here. The fact that this issue is being litigated in
these petitions for review could prompt MSHA or others to undertake legislative efforts to clarify and
support its understanding of its powers.”). In fact, Defendants cite testimony from the bill’s sponsors
indicating that they view the proposed amendment as a clarification of the existing law. (Doc. No.
22 at 4.) Nor is the Court bound by OLSC’s analysis. See Jacobson v. Kaforey, 149 Ohio St.3d 398,
406 (2016) (“‘Although this court is not bound by’ the analyses prepared by the Ohio Legislative
Service Commission, ‘we may refer to them when we find them helpful and objective.’”) (quoting
Meeks v. Papadopulos, 62 Ohio St.2d 187, 191 (1980)).
Consequently, the Court finds that dismissal of Plaintiffs’ claim is warranted to the extent that
it is based on unpaid time spent undergoing post-shift security screenings. Defendants’ Motion is
granted in that regard.
However, Plaintiffs also allege that Defendants wrongfully withheld payment for the time
warehouse workers spent going through the same mandatory security screenings prior to taking their
meal breaks. (Doc. No. 1 at ¶¶ 28-29.) It is slightly unclear whether Defendants argue that
13

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incorporation of the Portal-to-Portal Act under Ohio law also renders the time spent undergoing the
required pre-lunch security screening not compensable. To the extent Defendants do raise such an
argument, the Court finds it lacks merit.
In Busk II, the Sixth Circuit indicated that incorporation of the Portal-to-Portal Act under state
law does not necessarily preclude claims for uncompensated work performed during the workday,
such as before a lunch break. 905 F.3d at 401 n.3. Specifically, the Sixth Circuit held:
[E]ven if the Portal-to-Portal Act does apply to Nevada wage claims generally, it does
not apply to Plaintiffs’ claims relating to their pre-meal security screenings. This is
because “[a]s the statute’s use of the words ‘preliminary’ and ‘postliminary’ suggests,
§ 254(a)(2), and as our precedents make clear, the Portal-to-Portal Act of 1947 is
primarily concerned with defining the beginning and end of the workday.” Integrity
Staffing, 135 S.Ct. at 520 (Sotomayor, J., concurring) (citing IBP, Inc., 546 U.S. at 3437, 126 S.Ct. 514). On this reasoning, the Portal-to-Portal Act does not apply to claims
that employees were uncompensated for time spent during the workday. Therefore,
if undergoing security screenings is “work” under Nevada law, then the district court
erred in dismissing the Nevada plaintiffs’ claims relating to their shortened mealperiods.
Id.; see also 29 C.F.R. § 790.6(b) (“[A] rest period or a lunch period is part of the ‘workday’, and
section 4 of the Portal Act therefore plays no part in determining whether such a period, under the
particular circumstances presented, is or is not compensable, or whether it should be included in the
computation of hours worked.”).
Therefore, although the OMFWSA incorporates the Portal-to-Portal Act, the Portal-to-Portal
Act is inapplicable to Plaintiffs’ claim to the extent it is based on the time warehouse workers spend
undergoing the required pre-lunch security screening, which resulted in a shortened lunch break. As
such, the Portal-to-Portal Act does not require dismissal of that portion of Plaintiffs’ claim. However,
Defendants offer two additional arguments as to why Plaintiffs’ claim related to pre-lunch security
screening should be dismissed, which are addressed below.
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b. Whether the Pre-Lunch Security Screening Process Is Mandatory
First, Defendants argue that the pre-lunch security screening is not required because, as
alleged in their Answer, warehouse workers can take their meal breaks within a secured area without
going through the screening. (Doc. No. 17 at 15-16.) Defendants contend dismissal is appropriate
because Plaintiffs have not disputed these allegations. (Id.) In response, Plaintiffs assert that they
have alleged that the pre-lunch security screening is mandatory, and, as a result, there is a dispute of
material fact that must be resolved in their favor and precludes dismissal at this stage. (Doc. No. 19
at 12-13.) The Court agrees.
“Under Rule 7(A), a ‘plaintiff is not required to reply to affirmative defenses or new matter
appearing in the answer.’” Osberry v. Slusher, 750 F. App’x 385, 389 (6th Cir. 2018) (citations
omitted). “And under Rule 8(b)(6), where new allegations are in a pleading to which no responsive
pleading is required, the court must consider the new allegations as denied.” Id. In addition, as noted
earlier, “[f]or purposes of a motion for judgment on the pleadings, all well-pleaded material
allegations of the pleadings of the opposing party must be taken as true.” JPMorgan Chase Bank,
510 F.3d at 581 (citation omitted).
Because Plaintiffs did not have to respond to Defendants’ Answer, the Court must assume
that Plaintiffs deny any new allegations in the Answer, including Defendants’ allegations relating to
the ability of warehouse workers to take their lunch breaks without passing through the security
screening. Thus, Plaintiffs were not required to specifically dispute these allegations in their
Complaint or otherwise. See Osberry, 750 F. App’x at 389-90 (rejecting the defendants’ argument
that the court should “accept some allegations in the answer as true because [the plaintiff’s] complaint
fail[ed] to contradict all the [defendants’] counter-allegations”). Moreover, Plaintiffs have adequately
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alleged that the pre-lunch security screenings were mandatory. (See Doc. No. 1 at ¶¶ 20, 26.) At this
stage, Plaintiffs’ allegations must be accepted as true. As a result, the Court finds no merit to
Defendants’ argument in this regard.
c. Whether Plaintiffs’ Claim Fails Due to a Lack of Exertion
Second, Defendants argue that Plaintiffs’ claim fails for the additional reason that time spent
walking through security is not “work” under Ohio law because it requires no exertion. (Doc. No. 17
at 16-19.) Plaintiffs assert this argument fails because walking through security does require exertion,
and, regardless, exertion is no longer a requirement for an activity to be considered work. (Doc. No.
19 at 13-15.) The Court concludes that dismissal on this basis is not appropriate, as Defendants’
exact argument was raised in Busk II and rejected by the Sixth Circuit. 905 F.3d at 400-01.
In Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, the Supreme Court 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.”
321 U.S. 590, 598 (1944) (emphasis added). However, “[o]nly 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.’” Vance, 852 F.3d at 608 (quoting IBP,
546 U.S. at 25). Thus, in Busk II, the Sixth Circuit rejected the defendants’ argument that undergoing
security screening is not “work” due to a lack of exertion because there is no such exertion
requirement. 905 F.3d at 401. Moreover, the Court held that “undergoing security screening clearly
does involve exertion.” Id. at 400-01.

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Defendants argue that Busk II was wrongly decided to the extent that the Sixth Circuit found
that exertion is no longer required in order for an activity to constitute “work.” (Doc. No. 17 at 17
n.5.) But even assuming Defendants’ are correct in that regard, the Sixth Circuit also found that
undergoing security screening does require exertion. Thus, Defendants’ exertion argument does not
warrant the dismissal of Plaintiffs’ claim, especially at this stage of the proceedings.
IV.

Conclusion
For the reasons set forth above, Defendants’ Motion for Judgment on the Pleadings (Doc. No.

16) is GRANTED IN PART and DENIED IN PART. Defendants’ Motion is GRANTED to the
extent Plaintiffs’ claim is based on the underpayment of overtime compensation related to time spent
proceeding through the post-shift security screening process. Defendants’ Motion is DENIED to the
extent Plaintiffs’ claim is based on the underpayment of overtime compensation related to time spent
proceeding through the pre-lunch security screening process.
IT IS SO ORDERED.

s/Pamela A. Barker
PAMELA A. BARKER
U. S. DISTRICT JUDGE

Date: May 21, 2020

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