Buero v. Amazon.com Services, Inc.

502

Argued and under advisement June 8, certified question answered

December 15, 2022

Lindsey BUERO,

individually and on behalf of

all similarly situated,

Plaintiff,

v.

AMAZON.COM SERVICES, INC.,

dba Amazon Fulfillment Services, Inc.,

a foreign corporation; and

Amazon.com, Inc.,

a foreign corporation,

Defendants.

(United States Court of Appeals for

the Ninth Circuit No. 20-35633)

(SC S069135)

521 P3d 471

Plaintiff sought compensation under Oregon law for time she and other per-

sons employed by defendants spent undergoing mandatory security screenings

on defendants’ premises at the end of their work shifts. Plaintiff argued that

the time was compensable as “work time” under ORS 653.010(11) and as “hours

worked” under Bureau of Labor and Industries administrative rules. The federal

district court granted defendants’ motion for judgment on the pleadings, find-

ing that the time was not compensable, and, on appeal, the United States Court

of Appeals for the Ninth Circuit certified the question of compensability to the

Oregon Supreme Court. Held: Under Oregon law, time that employees spend on

the employer’s premises waiting for and undergoing mandatory security screen-

ings before or after their work shift is compensable only if the screenings are

either (1) an integral and indispensable part of the employees’ principal activities

or (2) compensable as a matter of contract, custom, or practice.

The certified question is answered.

En Banc

On certified question from the United States Court of Appeals

for the Ninth Circuit; certified order dated December 22,

2021, certification accepted February 16, 2022.

Lisa T. Hunt, Law Office of Lisa T. Hunt, LLC, Lake

Oswego, argued the cause and filed the briefs for plain-

tiff. Also on the briefs was David A. Schuck, Vancouver,

Washington.

Cite as 370 Or 502 (2022) 503

Michael E. Kenneally, Morgan, Lewis & Bockius LLP,

Washington DC, argued the cause for defendants. Sarah J.

Crooks, Perkins Coie LLP, Portland, filed the brief. Also

on the brief were David B. Salmons, Michael E. Kenneally,

and Richard G. Rosenblatt, Morgan, Lewis & Bockius LLP,

Washington DC and Princeton, New Jersey.

James S. Coon, Thomas, Coon, Newton & Frost, Portland,

filed the brief for amicus curiae Oregon Trial Lawyers

Association. Also on the brief was Kristen Williams,

McMinnville.

DUNCAN, J.

The certified question is answered.

Flynn, J., dissented and filed an opinion.

504 Buero v. Amazon.com Services, Inc.

DUNCAN, J.

Plaintiff brought a class action against defendants

in state court, alleging, among other things, that defendants

had violated Oregon’s wage laws by failing to pay employees

for time spent in mandatory security screenings at the end of

their work shifts. Defendants removed the case to federal court

and moved for judgment on the pleadings, asserting that the

time spent in the security screenings was not compensable. In

support of that argument, defendants cited Integrity Staffing

Solutions, Inc. v. Busk, a case involving a similar claim against

defendants, in which the United States Supreme Court held

that, under federal law, time spent in the security screenings

at issue in that case was not compensable. 574 US 27, 29, 135

S Ct 513, 190 L Ed 2d 410 (2014). Defendants argued that

Oregon’s wage laws track federal wage laws and, therefore,

time spent in the security screenings at issue in this case was

not compensable under Oregon law.

The district court agreed with defendants, noting the

similarities between Oregon administrative rules enacted

by the state’s Bureau of Labor and Industries (BOLI) and

federal law. Plaintiff appealed to the Ninth Circuit and filed

a motion asking that court to certify a question to this court

regarding whether time spent in security screenings is com-

pensable under Oregon law. The Ninth Circuit granted the

motion and certified the following question: “Under Oregon

law, is time that employees spend on the employer’s premises

waiting for and undergoing mandatory security screenings

compensable?” This court accepted the certified question.

For the reasons explained below, we conclude that Oregon

law aligns with federal law regarding what activities are

compensable. Therefore, under Oregon law, as under federal

law, time that employees spend on the employer’s premises

waiting for and undergoing mandatory security screenings

before or after their work shifts is compensable only if the

screenings are either (1) an integral and indispensable part

of the employees’ principal activities or (2) compensable as a

matter of contract, custom, or practice.

I. BACKGROUND

The relevant facts are few. In 2018, plaintiff worked

for defendants in a warehouse in Troutdale. In the warehouse,

Cite as 370 Or 502 (2022) 505

there was a secured area where merchandise was located.

Before entering the secured area, employees could store

their personal items in lockers.

When employees left the secured area at the end of

their work shifts, they would clock out and then undergo a

security screening that defendants used to prevent theft of

merchandise from the secured area. There were nine screen-

ing lanes. If an employee had not brought any metal items

or bags into the secured area at the start of their shift, the

employee could leave using one of five “express lanes,” in

which they would simply walk through a metal detector. If

an employee had brought metal items but no bags into the

secured area, the employee could use one of two “disburse-

ment lanes,” in which they would walk through a metal

detector and slide their metal items down sloped ramps

next to the detector. If an employee had brought a bag into

the secured area, the employee had to use one of two lanes,

in which they would walk through a metal detector and

put their bag on a conveyor belt for x-ray screening. If an

employee set off a metal detector in any of the lanes, a secu-

rity guard with a handheld metal detector would check the

employee’s person for merchandise.

After passing through the screening, employees could

remain in the warehouse for a variety of reasons, including

to use the lockers, a breakroom, and phones and computers

provided by defendants. To leave the warehouse, employees

would swipe their badges and pass through turnstiles at the

exits.

II. ANALYSIS

The security screenings at issue in this case are

similar to the screenings at issue in Integrity Staffing. As

mentioned, in that case, the Supreme Court held that time

spent in the screenings was not compensable under federal

law. Integrity Staffing, 574 US at 29. Because the question in

this case requires us to determine whether Oregon law mir-

rors federal law, we begin with a review of the evolution of

federal and state wage laws, looking first at federal law (spe-

cifically, the Fair Labor Standards Act (FLSA), as modified

by the Portal-to-Portal Act and as construed by Supreme

Court case law) and then to Oregon’s wage statutes and

506 Buero v. Amazon.com Services, Inc.

administrative rules (specifically, ORS 653.010(11), which

concerns “work time,” and administrative rules that define

“hours worked,” OAR 839-020-0004 and OAR 839-020-0040

through 839-020-0046).

A. Relevant Law

1. Federal law: The FLSA and the Portal-to-Portal Act

Congress enacted the FLSA in 1938. Pub L 75-718,

52 Stat 1060 (1938) (codified as amended at 29 USC §§ 201-

219). The FLSA established the first federal minimum wage

and required employers to pay overtime wages for employ-

ment beyond the statutorily set workweek. Id. §§ 6-7, 52 Stat

at 1062-63.

Although the FLSA set wage requirements, the

FLSA did not specify what types of activities were compen-

sable. Shortly after the enactment of the FLSA, questions

regarding what activities were compensable came before

the Supreme Court. In Tennessee Coal Co. v. Muscoda Local,

iron-ore miners argued that time they spent traveling

underground in the mines to and from their work site had

to be compensated as “work” time. 321 US 590, 592, 64 S Ct

698, 88 L Ed 949 (1944). The Court agreed. Id. at 603. The

Court explained that “work” means “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.” Id. at 598.

Then, in Anderson v. Mt. Clemens Pottery Co., plant workers

argued, among other things, that time they spent walking

from the timeclock to their work site within their employer’s

eight-acre plant was compensable. 328 US 680, 682-84, 66

S Ct 1187, 90 L Ed 1515 (1946). The Court agreed, holding that

“hours worked” “includes all time during which an employee

is necessarily required to be on the employer’s premises, on

duty or at a prescribed workplace.” Id. at 690-91. Thus, in

Tennessee Coal and Anderson, the Court construed “work”

and “hours worked” broadly to cover activities in addition to

the principal activities for which an employee is employed.

Specifically, the Court construed those terms to include time

employees spent traveling on their employers’ premises to

and from the location of their principal work activities.

Cite as 370 Or 502 (2022) 507

The year after Anderson, Congress responded to

the Supreme Court’s broad reading of the FLSA by pass-

ing the Portal-to-Portal Act of 1947. Pub L 80-49, 61 Stat

84 (codified as amended at 29 USC §§ 251-262). In a state-

ment of facts accompanying the act, Congress stated that

the FLSA “has been interpreted judicially in disregard of

long-established customs, practices, and contracts between

employers and employees,” and that interpretation had cre-

ated “wholly unexpected liabilities, immense in amount and

retroactive in operation, upon employers” that would have a

wide range of serious adverse consequences on employers,

employees, the courts, the government, and the economy as

a whole. Id. § 1(a), 61 Stat at 84.

To limit those consequences, the Portal-to-Portal

Act provided employers with relief from existing claims

and exempted them from future claims for compensation

for certain activities, including, but not limited to, the

activities that had been at issue in Tennessee Coal and

Anderson. Section 4 of the Portal-to-Portal Act provides, in

part:

“(a) 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

minimum wages, or to pay an employee overtime compen-

sation, for or on account of any of the following activities of

such employee * * *[:]

“(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 postlim-

inary 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.

“(b) Notwithstanding the provisions of subsection (a)

which relieve an employer from liability and punishment

with respect to an activity, the employer shall not be so

relieved if such activity is compensable by either[:]

508 Buero v. Amazon.com Services, Inc.

“(1) an express provision of a written or nonwritten

contract in effect, at the time of such activity, between such

employee, his agent, or collective-bargaining representa-

tive and his employer; or

“(2) a custom or practice in effect, at the time of such

activity, at the establishment or other place where such

employee is employed, covering such activity, not inconsis-

tent with a written or nonwritten contract, in effect at the

time of such activity, between such employee, his agent, or

collective-bargaining representative and his employer.”

Id. § 4, 61 Stat at 86-87.1 Thus, unless an exception applies,

an employee cannot hold an employer liable under the FLSA,

as modified by the Portal-to-Portal Act, for failing to pay an

employee either for time the employee spent “walking, rid-

ing, or traveling to and from the actual place of performance

of the principal activity or activities which such employee is

employed to perform” or for time spent in “activities which

are preliminary to or postliminary to said principal activity

or activities,” if those preliminary or postliminary activities

occur either before the employee commences or after the

employee ceases the employee’s principal activity or activi-

ties. Id. § 4(a), 61 Stat at 87.

In subsequent cases, the Supreme Court interpreted

and applied the Portal-to-Portal Act. In Steiner v. Mitchell,

the Court ruled that

“activities performed either before or after the regular

work shift * * * are compensable under the portal-to-portal

provisions of the Fair Labor Standards Act if those activi-

ties are 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) [which governs

time spent traveling to and from the location of an employ-

ee’s principal activities].”

350 US 247, 256, 76 S Ct 330, 100 L Ed 267 (1956). Applying

that rule, the Court concluded that changing clothes and

showering were an integral and indispensable part of the

1

Section 4 of the Portal-to-Portal Act provided employers with relief from

future claims, while section 2 provided employers with retroactive relief from

existing claims. Portal-to-Portal Act of 1947, § 2, 61 Stat at 85-86.

Cite as 370 Or 502 (2022) 509

principal activities of battery plant employees whose job

duties required “extensive use of dangerously caustic and

toxic materials.” Id. at 248, 256; see also Mitchell v. King

Packing Co., 350 US 260, 263, 76 S Ct 337, 100 L Ed 282

(1956) (applying the integral and indispensable test and

concluding that knife sharpening was an integral and indis-

pensable part of the principal activities of butchers).

To summarize, under the FLSA, as modified by

the Portal-to-Portal Act and as subsequently construed by

the Court, time that employees spend engaged in activities

before or after their regular work shifts is not compensable,

unless those activities are (1) an integral and indispensable

part of the employees’ principal activities or (2) compensable

as a matter of contract, custom, or practice. Accordingly, in

Integrity Staffing, the Supreme Court held that time that

employees spent waiting for and undergoing the security

screenings at issue in that case—which the court held was

time spent in “postliminary activities”—was not compensa-

ble because activities were not “integral and indispensable”

to the employees’ principal activities. 574 US at 35.

2. Oregon law: Statutes and administrative rules

The question in this case is whether we should

reach the same conclusion under Oregon law as the Supreme

Court reached in Integrity Staffing under federal law. Put

differently, the question is whether Oregon law mirrors fed-

eral law regarding what activities are compensable, which

would lead to the same result in this case as in Integrity

Staffing. To resolve that question, we must examine the rel-

evant state statutes and administrative rules.

a. Oregon’s Statutes

In 1965, the Oregon legislature considered House

Bill (HB) 1592, which provided for a $1.25 minimum wage

for each hour of “work time.” HB 1592, § 4(1). It further

provided, “ ‘Work time’ includes both time worked and time

of authorized attendance.” Id. § 2(6). HB 1592 passed the

House but was tabled in committee in the Senate and did not

become law. Senate and House Journal 735 (1965); Minutes,

Senate Committee on State and Federal Affairs, May 14,

1965, 1.

510 Buero v. Amazon.com Services, Inc.

In 1966, Congress amended the FLSA. Act of

Sept 23, 1966, Pub L 89-601, 80 Stat 830. The amend-

ment extended the FLSA’s coverage to certain categories

of employees that had previously been excepted from cover-

age, including hospital and nursing home workers and some

agricultural workers. Id. §§ 102(a), 203(a), 80 Stat at 831,

833. It also provided for increases in the federal minimum

wage from $1.25 to $1.60 in steps. Id. § 301(a), 80 Stat at

838.

One month after the 1966 FLSA amendments went

into effect, the Oregon legislature again considered a min-

imum wage bill, HB 1340 (1967). Like HB 1592, HB 1340

provided for a minimum wage for each hour of “work time”

by employees, and it provided, “ ‘Work time’ includes both

time worked and time of authorized attendance.” HB 1340,

§§ 2(9), 4(1). But HB 1340 applied only to employees who

were not covered by the FLSA. Id. § 3(8).

The legislature recognized that, after the 1966

amendments to the FLSA, a smaller portion of employees

in the state remained without minimum wage and over-

time protections. Tape Recording, House Floor Debate, HB

1340, Apr 5, 1967, Tape 12, Side 2 (Representative Morris

Crothers’s floor statement discussing the expansion of cov-

erage under the FLSA and explaining that “about the only

people that are left to whom this will apply in the State

of Oregon are people in small retail and service organi-

zations”); see also Tape Recording, House Committee on

Labor and Management, HB 1340, Mar 17, 1967, Tape 22

(Representative John Anunsen asking how many employees

would be covered, and George Brown, who had been involved

in crafting the bill, testifying that more employees had been

“roped in” under the amended federal law than had pre-

viously been included when the legislature discussed HB

1592). HB 1340 provided state protections for some of those

employees.

The exclusion of employees covered by the FLSA

was significant. In his floor statement given at the bill’s

third reading and its passage by the House, Representative

Crothers highlighted the import of the exemption. Tape

Cite as 370 Or 502 (2022) 511

Recording, House Floor Debate, HB 1340, Apr 5, 1967,

Tape 12, Side 2 (“[M]ore important than [the exemption for

piece work employees in agriculture], * * * an exemption is

given to any person subject to regulation under the federal

Fair Labor Standards Act.”).

Legislators and witnesses who testified about HB

1340 explained that the bill would not apply to most employ-

ees in the state. As Representative Crothers explained in

his floor statement, “A number of years ago a minimum

wage bill in the State of Oregon would have had a very large

economic impact on the state. It no longer does because the

federal regulations have pretty largely preempted the field.”

Tape Recording, House Floor Debate, HB 1340, Apr 5, 1967,

Tape 12, Side 2. Representative Crothers’s estimated that

“probably not more than 5,000 people in the State of Oregon

would be covered by this minimum wage law.” Id.; see also

id. (Representative Joe Rogers noting that “this is not going

to cover many employees”); id. (Representative Jason Boe

commenting that “these few that are involved * * * are the

citizens of Oregon who stand in most need of this help”).

Industry witnesses similarly recognized the bill’s

limited scope. One witness pointed out that “by far the vast

amount of Oregon employees are covered by the federal

minimum wage.” Minutes, Senate Committee on Labor and

Industries, Apr 26, 1967, 5 (summarizing testimony of Doug

Heider of the Oregon Retail Council and Associated Oregon

Industries); see also Tape Recording, House Committee on

Labor and Management, HB 1340, Mar 13, 1967, Tape 20

(testimony of B.W. Fullerton of Malheur County Farm Labor

Sponsoring Association, stating that, in Malheur County,

the bill would apply only to a small number of employees).

In addition, the Commissioner of Labor explained

that many of the employees who were still not covered by

the FLSA’s wage and hour protections mistakenly believed

that they were covered by those federal protections. Tape

Recording, House Committee on Labor and Management,

HB 1340, Mar 10, 1967, Tape 19. The commissioner also tes-

tified that the bill would provide only “the bare minimum

protection to the wage earner.” Id.

512 Buero v. Amazon.com Services, Inc.

To summarize, in 1967 the Oregon legislature

passed HB 1340 to provide state protections to a small num-

ber of employees so that they would have similar coverage to

what many of them believed they already had under federal

law.2 Or Laws 1967, ch 596. The bill required compensation

for “work time,” and that requirement is now codified as ORS

653.025. The bill also provided that “ ‘[w]ork time’ includes

both time worked and time of authorized attendance,” and

that provision is now codified as ORS 653.010(11), which is

the statutory provision at issue in this case.3

b. BOLI’s Administrative Rules

More than two decades later, in 1989, the Oregon

legislature increased the state minimum wage above the

federal minimum wage and expanded Oregon’s wage stat-

utes to cover employees already protected by the FLSA so

that they would be entitled to Oregon’s minimum wage. Or

Laws 1989, ch 446, §§ 2, 4. Then, in 1990, BOLI promulgated

administrative rules regarding compensable time. The first

relevant BOLI rule is OAR 839-020-0004 (Rule 4). Rule 4

defines terms for the purposes of Oregon’s wage and hour

statutes and BOLI’s administrative rules. In 1990, BOLI

amended Rule 4 by adding a subsection to define “hours

worked.” As relevant here, Rule 4 provides:

“As used in ORS 653.010 to 653.261 and these rules,

unless the context requires otherwise:

“* * * * *

“(19) ‘Hours worked’ means all hours for which an

employee is employed by and required to give to the

2

The state protections were not identical to the federal protections. As men-

tioned, the Oregon legislature considered HB 1592 in 1965, and that bill provided

for a state minimum hourly wage of $1.25. HB 1592 § 4(1). The following year,

Congress amended the FLSA to provide for an increase, in steps over time, of the

federal minimum hourly wage from $1.25 to $1.60. Pub L 89-601, § 301(a), 80 Stat

at 838. The next year, the Oregon legislature considered HB 1340, which, like HB

1592, provided for a state minimum hourly wage of $1.25. HB 1340 § 4(1). But,

unlike the amended FLSA, HB 1340 did not provide for future increases in the

minimum wage. See id. In that respect, HB 1340 was less beneficial to employees

than the FLSA.

3

The Oregon legislature has amended ORS 653.010 several times since

its enactment in 1967. As definitions have been added, the subsections have

been renumbered, but the substance of the definition of “work time” remains

unchanged. The court quotes from the current version of the statute.

Cite as 370 Or 502 (2022) 513

employer and includes all time during which an employee

is necessarily required to be on 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).”

When BOLI added the “hours worked” definition

to Rule 4, it also promulgated OAR 839-020-0040 through

839-020-0046 (Rules 40 through 46). Those rules are known

collectively as the “Hours Worked series.” 4 Rule 40 sets out

the purpose of the series. It states that the series “deals with

hours worked as defined by [Rule 4] and discusses princi-

ples involved in determining what constitutes working time

for purposes of [Oregon’s wage and hour statutes] ORS

653.010 to 653.261 and these rules.” The remaining rules

in the series govern the compensability of time that employ-

ees spend engaged in certain activities for which compen-

sability might not be straightforward, because it might not

involve the performance of the principal activities for which

the employees are employed—specifically, time spent wait-

ing (Rule 41), time spent sleeping (Rule 42), time spent in

preparatory and concluding activities (Rule 43), time spent

in lectures, meetings, or training programs (Rule 44), travel

time (Rule 45), and time spent on other miscellaneous activ-

ities (Rule 46).

Of the Hours Worked series, the parties have focused

on Rule 43. Rule 43 provides:

“(1) Preparatory and concluding activities are con-

sidered hours worked if the activities performed by the

employee are an integral and indispensable part of a prin-

cipal activity for which the employee is employed:

“(a) Example: A bank teller counts the till and

arranges the work space in preparation for receiving cus-

tomers. This activity is an integral and indispensable part

of the principal activity for which the employee is employed

and is included as hours worked;

“(b) Example: In connection with the operation of a

lathe, the lathe operator oils, greases, or cleans the machine

4

OAR 839-020-0047 (Rule 47), which applies the other rules of the Hours

Worked series to agricultural employees, was later added to the series. OAR 839-

020-0047 (July 25, 1990).

514 Buero v. Amazon.com Services, Inc.

or installs a new cutting tool. Such activities are an inte-

gral and indispensable part of a principal activity and are

included as hours worked;

“(c) Example: Agricultural workers must dress in pro-

tective clothing and thoroughly clean up after their work

with or around pesticides. The time spent in these activi-

ties is work time.

“(2) These rules are applicable even where there exists

a custom, contract or agreement not to pay for the time

spent in such activity.

“(3) Where a contract, custom or practice dictates cer-

tain activities to be considered as work time, even though

not considered to be an integral and indispensable part of

a principal activity, the time devoted to such activities will

be considered as work time.”

Thus, section 1 of Rule 43 provides that preparatory and

concluding activities are compensable if they are “an inte-

gral and indispensable part” of an employee’s principal

activity, and section 3 provides that preparatory and con-

cluding activities are compensable, “even though not consid-

ered to be an integral and indispensable part of a principal

activity,” “[w]here a contract, custom or practice” so dictates.

B. The Parties’ Arguments

Having reviewed the evolution of the relevant fed-

eral and state laws, we turn to the parties’ arguments. The

parties offer competing interpretations of BOLI’s admin-

istrative rules and ORS 653.010(11), which defines “work

time.” As mentioned, the district court concluded that the

security screenings at issue were not compensable. In doing

so, the court relied on BOLI’s administrative rules. It under-

stood those rules to track federal law, and it specifically

understood Rule 43 to limit the compensability of prepara-

tory and concluding activities as the federal Portal-to-Portal

Act does. In this court, plaintiff argues that (1) BOLI’s rules

do not limit compensation for preparatory and concluding

activities, but, (2) if they do, they are inconsistent with ORS

653.010(11) and, therefore, are invalid. In response, defen-

dants argue that (1) BOLI’s rules track federal law and limit

compensation for preparatory and concluding activities, and

(2) they are consistent with ORS 653.010(11), which was

Cite as 370 Or 502 (2022) 515

also intended to track federal law. To resolve the parties’

arguments, we first construe BOLI’s rules and then ORS

653.010(11).

C. Construction of BOLI’s Administrative Rules

As we will explain, the BOLI rules mirror federal

law; they use the same structure and language as federal

law. Taken together, Rule 4 and Rule 43 parallel the FLSA,

as modified by the Portal-to-Portal Act and case law inter-

preting that act. We so conclude based on the rules’ text,

context, and rulemaking history. See Gafur v. Legacy Good

Samaritan Hospital, 344 Or 525, 532-33, 185 P3d 446 (2008).

1. Text

Again, Rule 4 provides:

“As used in ORS 653.010 to 653.261 and these rules,

unless the context requires otherwise:

“* * * * *

“(19) ‘Hours worked’ means all 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 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).”5

Rule 4 defines “hours worked” broadly; it is similar to the

Supreme Court’s interpretation of “hours worked” in its pre-

Portal-to-Portal Act cases, Tennessee Coal and Anderson. In

fact, Rule 4 uses the same language as Anderson, in which

5

As initially promulgated, Rule 4’s definition provided:

“ ‘Hours worked’ means all hours for which an employee is employed by and

required to give to his/her employer and includes all time during which an

employee is necessarily required to be on the employer’s premises, on duty or

at a prescribed work place and all time the employee is suffered or permitted

to work.”

OAR 839020-0004(13) (Feb 27, 1990). Although Rule 4’s definition of “hours

worked” did not initially refer to “work time,” BOLI amended the rule five months

later by adding the following sentence at the end: “ ‘Hours worked’ includes ‘work

time’ as defined in ORS 653.010(1[1]).” OAR 839 020-0004(14) (July 25, 1990). We

do not understand that additional sentence to indicate a different rulemaking

intent or change the meaning of “hours worked.” Indeed, “hours worked” as we

construe it herein includes “work time” as we understand it.

516 Buero v. Amazon.com Services, Inc.

the Court held that “hours worked” “includes all time during

which an employee is necessarily required to be on the

employer’s premises, on duty or at a prescribed workplace.”

328 US at 690-91. Thus, Rule 4’s definition of “hours worked”

is similar to the pre-Portal-to-Portal-Act understanding of

compensable time, which remains good law as modified by

the Portal-to-Portal Act. See IBP, Inc. v. Alvarez, 546 US

21, 28, 126 S Ct 514, 163 L Ed 2d 288 (2005) (“Other than

its express exceptions for travel to and from the location of

the employee’s ‘principal activity,’ and for activities that are

preliminary or postliminary to that principal activity, the

Portal-to-Portal Act does not purport to change this Court’s

earlier descriptions of the terms ‘work’ and ‘workweek,’ or to

define the term ‘workday.’ ”); see also 29 CFR § 785.7 (quoting

Anderson and explaining that “[t]he Portal-to-Portal Act did

not change the rule except to provide an exemption for pre-

liminary and postliminary activities”).

Just as the original FLSA was modified by the

Portal-to-Portal Act, Rule 4 is modified by the Hours

Worked series, which specifies the compensability of certain

activities, including, as relevant here, Rule 43, which gov-

erns “preparatory and concluding activities.” Again, Rule 43

provides:

“(1) Preparatory and concluding activities are con-

sidered hours worked if the activities performed by the

employee are an integral and indispensable part of a prin-

cipal activity for which the employee is employed:

“(a) Example: A bank teller counts the till and

arranges the work space in preparation for receiving cus-

tomers. This activity is an integral and indispensable part

of the principal activity for which the employee is employed

and is included as hours worked;

“(b) Example: In connection with the operation of a

lathe, the lathe operator oils, greases, or cleans the machine

or installs a new cutting tool. Such activities are an inte-

gral and indispensable part of a principal activity and are

included as hours worked;

“(c) Example: Agricultural workers must dress in pro-

tective clothing and thoroughly clean up after their work

with or around pesticides. The time spent in these activi-

ties is work time.

Cite as 370 Or 502 (2022) 517

“(2) These rules are applicable even where there exists

a custom, contract or agreement not to pay for the time

spent in such activity.

“(3) Where a contract, custom or practice dictates cer-

tain activities to be considered as work time, even though

not considered to be an integral and indispensable part of

a principal activity, the time devoted to such activities will

be considered as work time.”

Section 1 of Rule 43 provides that preparatory and conclud-

ing activities are considered hours worked if they “are an

integral and indispensable part of a principal activity for

which the employee is employed.” Thus, section 1 appears

to establish a condition that must be satisfied in order for

preparatory and concluding activities to be compensable.

Section 3 confirms that understanding. Section 3 provides

that preparatory and concluding activities are compensa-

ble, “even though not considered to be an integral and indis-

pensable part of a principal activity,” if a contract, custom or

practice dictates that they be considered work time. Thus,

reading Rule 43 as a whole, section 1 establishes a require-

ment that must be satisfied for preparatory and concluding

activities to be compensable—specifically, the activities

must be an integral and indispensable part of a principal

activity—and section 3 creates an exception to that require-

ment when a contract, custom, or practice requires that the

activities be compensable. The “even though” clause in sec-

tion 3 shows that Rule 43 limits compensable activities. The

clause has meaning only if section 3 sets forth the sole basis

by which a preparatory or concluding activity that is not an

integral or indispensable part of a principal activity could

be compensable.6

The text of Rule 43 mirrors the Portal-to-Portal

Act and subsequent case law. In the same way that section

6

Plaintiff, and the dissent, 370 Or at 532-33, contend that Rule 43 simply

lists examples of types of compensable activities. In plaintiff’s view, the purpose

of section 1 of the rule is to identify certain preparatory and concluding activi-

ties that are compensable (those that are integral and indispensable), but not to

preclude compensability for other types of preparatory and concluding activities.

Plaintiff’s reading of the rule cannot be squared with the inclusion of section 3,

which creates an exception to section 1. If section 1 was just an example, there

would be no need for section 3 to include the phrase “even though not considered

to be an integral and indispensable part of a principal activity.”

518 Buero v. Amazon.com Services, Inc.

4 of the Portal-to-Portal Act provides specific guidance for

compensation of “preliminary” or “postliminary” activities,

Rule 43 provides specific guidance for compensation of “pre-

paratory” or “concluding” activities. Compare Portal-to-

Portal Act of 1947, § 4(a)(2), 61 Stat at 87, with Rule 43(1). As

the Portal-to-Portal Act requires compensation for prelim-

inary or postliminary activities as called for by “contract,”

“custom or practice,” so too does Rule 43 require compensa-

tion for preparatory or concluding activities as called for by

“contract, custom or practice.” Compare Portal-to-Portal Act

of 1947, § 4(b)(1) - (2), 61 Stat at 87, with Rule 43(3).7 And

Rule 43 incorporates the precise test that the Supreme

Court set forth when interpreting the Portal-to-Portal Act in

Steiner, and applied in King Packing, for determining whether

an activity that takes place before or after a regular work

shift is compensable: whether that activity is “an integral

and indispensable part” of a principal activity for which the

worker is employed. Steiner, 350 US at 256; King Packing,

350 US at 261; see also 29 CFR § 785.25 (discussing Steiner,

King Packing, and the “integral and indispensable” test).8

2. Context

The context provided by the Hours Worked series as

a whole supports our conclusion that, as under federal law,

Rule 43 provides a test for whether time spent in prepara-

tory or concluding activities is compensable. As mentioned,

Rule 40 sets out the purpose of the Hours Worked series. It

7

The federal regulations also include analogues to sections 2 and 3 of Rule

43. Compare 29 CFR § 785.8 (providing that, with limited exceptions, hours

worked are compensable irrespective of “custom, contract, or agreement not to

pay for the time so spent”), with Rule 43(2) (providing that “[t]hese rules are

applicable even where there exists a custom, contract or agreement not to pay

for the time spent in such activity”); compare 29 CFR § 790.10(a) (providing that,

under section 4(b) of the Portal-to-Portal Act, otherwise noncompensable “pre-

liminary” or “postliminary” activities might nonetheless be compensable if the

activity is compensable under contract, custom, or practice), with Rule 43(3) (pro-

viding similarly with respect to “preparatory” or “concluding” activities).

8

Two of the examples provided in Rule 43 of compensable preparatory and

concluding activities are the same or similar to those in federal law. The exam-

ple in Rule 43(1)(b) involving a lathe operator appears in 29 CFR §§ 785.24 and

790.8(b)(1). And the example in Rule 43(1)(c) involving agricultural workers

required to “dress in protective clothing and thoroughly clean up after their work

with or around pesticides” is analogous to an example of workers in a chemi-

cal plant who must put on protective clothes provided in 29 CFR §§ 785.24 and

790.8(c).

Cite as 370 Or 502 (2022) 519

states that the series “deals with hours worked as defined

by [Rule 4] and discusses principles involved in determin-

ing what constitutes working time for purposes of [Oregon’s

wage statutes] ORS 653.010 to 653.261 and these rules.” In

other words, Rule 4 provides general definitions “unless the

context requires otherwise,” and the Hours Worked series

identifies certain contexts that might require otherwise.

Thus, the definition of “hours worked” in Rule 4 operates

in tandem with the Hours Worked series, Rules 40-47. The

rules in the series set forth various tests and guidelines that

govern whether an employer is—or is not—required to com-

pensate an employee for time the employee spends engaged

in a specific activity; they provide guidance in contexts

where determining compensability might not be straight-

forward. See, e.g., Rule 41 (waiting time); Rule 42 (sleeping

time); Rule 44 (lectures, meetings, and training programs);

Rule 45 (travel time).

3. Rulemaking History

The rulemaking history of Rule 4 and Rule 43 con-

firms that the rules were intended to mirror the Portal-to-

Portal Act. As mentioned, BOLI promulgated the Hours

Worked series following the Oregon legislature’s decision to

extend Oregon’s wage and hour laws to employees already

covered by the FLSA. During BOLI’s rulemaking, Oregon

businesses and attorneys asked BOLI’s Wage and Hour

Division (“the division”) to adopt rules that would align with

federal law as closely as possible.9 Commenters urged the

division to do so in order to “provide consistency and ease

of administration”10 and to avoid “extensive litigation by

9

See, e.g., Presiding Officer’s Report, In the Matter of Adoption and

Amendment of Rules Pertaining to Payment of Minimum Wages and Overtime

Pay (Bureau of Labor and Industries) (summarizing hearings from October

and November 1989), 4 (summarizing Exhibit I, a letter from Jerry E. Butler of

NORPAC Foods, Inc., “urg[ing] the Bureau to adopt existing federal standards”);

id. at 7 (summarizing Exhibit AA) (similar); id. (summarizing Exhibit DD) (sim-

ilar); id. at 10 (summarizing Exhibit PP) (similar); id. (summarizing Exhibit RR)

(similar); id. at 12 (summarizing Exhibit b) (similar).

10

Presiding Officer’s Report 3 (summarizing Exhibit F, a letter on behalf

of the Oregon Hospital Association); see also id. at 2 (summarizing Exhibit D,

a letter on behalf of Eugene Sand and Gravel, Inc. explaining that “small busi-

ness will be substantially impacted through having to comply with two laws

which conflict in many areas”); id. at 4 (summarizing Exhibit K, a letter from

Karen Zimmer of Croman Corp. “urge[ing] the Bureau to adopt complete federal

520 Buero v. Amazon.com Services, Inc.

employers regarding what the differences between the pro-

posed rules and Federal regulations mean.”11 In response

to such comments, the division amended several proposed

rules to bring them more in line with federal regulations.12

The division expressly recognized where it declined to adopt

federal regulations and explained its basis for doing so.13

The division did not indicate such an intent to diverge from

federal law regarding what types of activities are compen-

sable. Accordingly, the division’s intent to mirror federal

law is clear. In rejecting several proposed changes, the

division explained that its “desire * * * to mirror federal

law as closely as possible” meant that, “when suggestions

were made to change, expand, or narrow the rules and that

change would have the effect of creating a different standard

or interpretation at the state level, the decision was made

that these modifications not be included.” Presiding Officer’s

Report 28.

In summary, the text, context, and rulemaking his-

tory of BOLI’s Rule 4 and Rule 43 establish that the rules

were intended to align with federal law, under which pre-

paratory and concluding activities are compensable only if

(1) the activities are an integral and indispensable part of

regulations to avoid confusion”); id. at 5 (summarizing Exhibit M, a letter noting

that mirroring federal regulations “would minimize confusion and avoid two sep-

arate calculations for compliance with both laws”).

11

Presiding Officer’s Report 3 (summarizing Exhibit H, a letter on behalf

of Miller, Nash, Wiener, Hager and Carlsen, Attorneys at Law); see also id. at 10

(summarizing Exhibit SS, a letter warning of litigation resulting from disparate

requirements); id. (summarizing Exhibit TT) (similar).

12

For example, in response to comments about a proposed version of OAR

839-020-0005, BOLI remarked:

“It was suggested by many that the Bureau adopt the language of the federal

regulations in regard to these particular definitions stating that it would add

to ease of understanding and interpretation. The Division currently uses the

federal regulations regarding those definitions when they are not determined

to be in conflict with state law. * * * Federal language and format have been

adopted to the extent possible as allowed by law.”

Presiding Officer’s Report 24.

13

For example, the division rejected a proposal that it adopt “on a wholesale

basis the federal regulations dealing with overtime,” explaining that doing so

was unnecessary because (1) “[t]he Division currently uses the CFRs as a guide

and relies on federal interpretation where these regulations are not contrary to

statute”; and (2) “[a] significant number of the regulations at the federal level are

contrary to the state statute.” Presiding Officer’s Report 28.

Cite as 370 Or 502 (2022) 521

an employee’s principal activities or (2) contract, custom,

or practices requires that they be compensable. The text

of Rule 43 shows that the rule limits the compensability

of preparatory and concluding activities, the context of the

Hours Worked series supports that reading of the text, and

the rulemaking history shows that BOLI intended its rules

to align with federal law as closely as possible. In addition,

nothing in the history indicates that BOLI intended to

diverge from federal law regarding what types of activities

are compensable.14

D. Construction of ORS 653.010(11)

We turn to plaintiff’s alternative argument that, if

Rule 43 limits compensability for preparatory and conclud-

ing activities, it is inconsistent with ORS 653.010(11), which

defines “work time.” As we will explain, we conclude that

BOLI’s rules are not inconsistent with that statute because,

like BOLI’s rules, the statute’s definition of “work time” was

intended to mirror federal law.

As mentioned, ORS 653.010(11) provides, “ ‘Work

time includes both time worked and time of authorized

attendance.” Plaintiff argues that the statute requires com-

pensation for time spent in security screenings, because it

is “time of authorized attendance.” To determine the legisla-

ture’s intended meaning of “time of authorized attendance,”

we look to the statute’s text and context, as well as helpful

legislative history. State v. Gaines, 346 Or 160, 171-72, 206

P3d 1042 (2009).

1. Text

The text of ORS 653.010(11) indicates that “work

time” covers two distinct categories of activities: (1) “time

worked” and (2) “time of authorized attendance.” See ORS

174.010 (providing that, in the construction of a statute, a

court may not “omit what has been inserted,” and “where

there are several provisions or particulars such construction

14

We conclude that BOLI intended the compensability of time spent in pre-

paratory and concluding activities to mirror the compensability of such time

under the then-existing federal law. We do not mean to suggest that all of BOLI’s

concurrently promulgated rules were meant to match federal law. To the con-

trary, BOLI specifically identified areas of departure from federal law.

522 Buero v. Amazon.com Services, Inc.

is, if possible, to be adopted as will give effect to all”).

However, the legislature did not define “time worked” or

“time of authorized attendance.”

The meaning of “time of authorized attendance” is

ambiguous. The text, viewed in isolation, could plausibly

take on broad meaning. Plaintiff has floated several alterna-

tive constructions, including that “time of authorized atten-

dance” means any time an employee is permitted to be on

the employer’s premises and that “time of authorized atten-

dance” means “the act or state of being in waiting” when

“sanctioned by authority.” Defendants, on the other hand,

have offered several more narrow meanings, including that

“time of authorized attendance” means “time employees

must be present waiting for an assignment”; time spent

“attending lectures, meetings, training programs, and sim-

ilar activities”; or “periods within the workday—between

employees’ first principal activity of the day and their last

principal activity of the day.”

Because both “authorized” and “attendance” are

words of common usage, we consider their dictionary defi-

nitions. Both words are defined using numerous alternative

senses, leading to disparate results.15 “Authorized atten-

dance” could mean approved presence, approved waiting,

approved service, or approved attendance at an event. None

of the dictionary definitions outweighs the others based on

the text of the statute alone. Therefore, we turn to the con-

text and legislative history.

15

The dictionary definitions of “authorized” are as follows:

“1 archaic : having authority : marked by authority : recognized as hav-

ing authority 2 : endowed with authority <an [authorized] representative>

3 : sanctioned by authority : approved <an [authorized] biography> <an

[authorized] translation>[.]”

Webster’s Third New Int’l Dictionary 147 (unabridged ed 2002). And the defini-

tions of “attendance” are the following:

“1 : the act or fact of attending: as a : the act or state of being in waiting

: service esp[ecially] at court or at a hospital <a physician in [attendance]>

b : a being present : presence <[attendance] at a play> 2 : the persons attend-

ing: a obs : a body of attendants : retinue <the king, with his [attendance] of

court officials> b : the persons or number of persons present (as at a public per-

formance or a session of school) <the broadcasting of plays . . . does not seem to

diminish the [attendance]s at original performances—Joseph Trenaman>[.]”

Id. at 140.

Cite as 370 Or 502 (2022) 523

2. Context

At the same time that the Oregon legislature defined

“work time,” it defined “employ” in the same statute, and the

statute’s definition of “employ” provides relevant context.

Force v. Dept. of Rev., 350 Or 179, 188, 252 P3d 306 (2011)

(“ ‘[C]ontext’ includes, among other things, other parts of the

statute at issue.”). Under the statute, “ ‘[e]mploy’ includes

to suffer or permit to work * * *.” ORS 653.010(2) (1967).16

The FLSA similarly prescribed that “ ‘[e]mploy’ includes

to suffer or permit to work.” 29 USC § 203(g) (1964). The

Oregon legislature derived the definition of “employ” from

federal law. See Cejas Commercial Interiors, Inc. v. Torres-

Lizama, 260 Or App 87, 97-99, 316 P3d 389 (2013) (exam-

ining the text and legislative history and concluding that

the Oregon legislature adopted “the FLSA’s definition of

‘employ’ ” as “an established term of art from federal law”).

And both jurisdictions define “employ” in terms of “work.”

Thus, it is likely that the legislature considered the act of

employing to cover the same scope of work. In other words,

an employer “employs” workers for the same activities under

both state and federal law. Accordingly, the parallel defini-

tions of “employ” support a narrower construction of “work

time” that mirrors the federal understanding of compensa-

ble time.

Federal law also provides relevant context because

Oregon’s wage statutes were an “offspring” of federal law.

See Badger v. Paulson Investment Co., Inc., 311 Or 14, 21, 803

P2d 1178 (1991) (looking to federal law for guidance when

the 1967 Oregon law was “an offspring of federal security

laws and regulations going back to the 1930s”). Although

the Oregon legislature did not adopt word-for-word every

portion of the FLSA, the legislature drew in large measure

from federal law.17 Accordingly, the well-established federal

16

When enacted, the full definition read, “ ‘Employ’ includes to suffer or

permit to work; however, ‘employ’ does not include permitting voluntary service

without compensation to a religious or charitable nonprofit institution.” ORS

653.010(2) (1967).

17

Compare ORS 653.010(2) (1967) (“ ‘Employ’ includes to suffer or permit to

work * * *.”), with 29 USC § 203(g) (1964) (“ ‘Employ’ includes to suffer or permit

to work.”); compare ORS 653.010(7) (1967) (defining “outside salesman”), with

29 CFR § 541.500 (1967) (similarly defining “outside salesman”); compare ORS

524 Buero v. Amazon.com Services, Inc.

understanding of compensable time informs our analysis of

ORS 653.010(11)’s definition of “work time” and supports a

construction in line with federal law.

3. Legislative History

Finally, we examine the relevant legislative history.

As recounted above, the Oregon legislature enacted HB 1340

to establish a state minimum wage the year after Congress

had expanded the FLSA. HB 1340 did not cover employees

that were covered by the FLSA. It was intended to fill a gap

in the FLSA’s coverage by providing state protections to a

small number of employees in the state so that they would

have protections similar to what many of them mistakenly

believed they already had under federal law. Nothing in

the legislative history of the bill indicates that the legis-

lature intended to require compensation for activities that

were not compensable under the FLSA, as modified by the

Portal-to-Portal Act. To the contrary, the Commissioner of

Labor testified that the bill would provide only “the bare

minimum protection to the wage earner.” Tape Recording,

House Committee on Labor and Management, HB 1340,

Mar 10, 1967, Tape 19. Thus, the legislative history indi-

cates that the legislature did not intend to provide more

protections than federal law, much less expand compen-

sability to activities that had not been compensable under

653.020(3) (exempting “[a]n individual engaged in administrative, executive or

professional work who * * * [e]xercises discretion and independent judgment”),

with 29 USC § 213(a)(1) (1964) (exempting an employee employed in an “execu-

tive, administrative, or professional capacity”); 29 CFR § 541.2 (1967) (explain-

ing that an employee employed in an “administrative * * * capacity” includes an

employee “[w]ho customarily and regularly exercise discretion and independent

judgment”); compare ORS 653.020(4) (1967) (exempting “[a]n individual employed

by the United States, or this state, or a political subdivision”), with 29 USC

§ 203(d) (1964) (excluding “the United States or any State or political subdivision

of a State” from the definition of “employer”); compare ORS 653.060 (1967) (mak-

ing it unlawful to “discharge or in any other manner discriminate against any

employe[e]” “[b]ecause the employe[e] has made complaint that he has not been

paid wages,” “[b]ecause the employe[e] has caused to be instituted or is about

to cause to be instituted any proceedings” related to the minimum wage laws,

or “[b]ecause the employe[e] has testified or is about to testify in any such pro-

ceedings”), with 29 USC § 215(a)(3) (1964) (making it unlawful “to discharge or

in any other manner discriminate against any employee because such employee

has filed any complaint or instituted or caused to be instituted any proceeding

under or related to this chapter, or has testified or is about to testify in any such

proceeding”).

Cite as 370 Or 502 (2022) 525

federal law since the enactment of the Portal-to-Portal

Act.18

Moreover, requiring compensation for those activ-

ities would have led to two different rules for determining

compensable time, one for employees subject to the FLSA

and another for employees subject to state wage laws. There

is no indication in the legislative history that the legislature

intended that result.

To be certain, if the Oregon legislature had wanted

to expand the scope of compensable time beyond the post-

Portal-to-Portal-Act federal scope, it could have done so.

But, if the legislature had wanted to diverge from federal

law, we would expect it to have done so explicitly given the

well-established understanding of what activities were com-

pensable under federal law at the time. But it did not, and

nothing in the legislative history of HB 1340 indicates that

anyone intended the bill to change what types of activities

are compensable.

Instead, the majority of the legislative discussion

revolved around who should be protected under the law and

who should be exempt. The testimony, debate, and amend-

ments focused on whether agricultural workers, piece-rate

workers, and outside salespeople should be included under

the bill. See, e.g., Tape Recording, House Committee on Labor

and Management, HB 1340, Mar 10, 1967, Tape 19 (Bureau

of Labor chief counsel testifying in favor of removing the

exemption for agricultural workers); id. (testimony from

George Brown, the drafter of the “outside salesman” defi-

nition and exemption); Tape Recording, House Committee

on Labor and Management, HB 1340, Mar 17, 1967, Tape

22 (passing an amendment with the definition of “outside

salesman”); Tape Recording, House Committee on Labor

and Management, HB 1340, Mar 20, 1967, Tape 23 (pass-

ing an amendment clarifying that piece-rate workers were

exempt); Tape Recording, House Floor Debate, HB 1340,

Apr 5, 1967, Tape 12, Side 2 (statement from Representative

18

Neither the definition of “work time” nor the legislature’s intent changed

when Oregon eventually extended coverage under state law to those already pro-

tected by the FLSA with the passage of Senate Bill 335 (1989). Or Laws 1989,

ch 446.

526 Buero v. Amazon.com Services, Inc.

William Stevenson opposing exclusion of agricultural work-

ers); Minutes, Senate Committee on Labor and Industries,

Apr 24, 1967, 1 (testimony from Sen Don Willner discussing

exclusion of piece-rate workers and agricultural workers).

The debate did not cover what activities should be covered.

Nothing in the legislative history suggests that the bill

would institute a new, more expansive definition of “work

time” that would change existing law to require compensa-

tion for all preliminary and postliminary activities, in stark

contrast to federal law.19

Accordingly, we conclude that the Oregon legisla-

ture did not intend to adopt a broad definition of compensable

time above and beyond the existing federal understanding

and that Oregon’s definition of “work time” aligns with fed-

eral law. The text of the “work time” definition does not pro-

vide a definitive answer; it can be read broadly or narrowly.

But the context and legislative history resolve the ambigu-

ity. The context—the definition of “employ” that matches

federal law and the longstanding federal understanding of

compensable time—suggests that the legislature intended

a narrow meaning that aligns with federal law. And the

legislative history supports a construction that mirrors fed-

eral law. The wage statutes filled a gap in the FLSA’s cover-

age, providing similar coverage to a small group of Oregon

workers. Nothing in the legislative history indicates that

the Oregon legislature intended to diverge from federal law

regarding what types of activities are compensable.

III. CONCLUSION

To summarize, we conclude that the Oregon stat-

utes and administrative rules regarding what activities

are compensable were intended to mirror federal law. The

structure and text of the relevant administrative rules

mirror federal law, the context of the Hours Worked series

supports reading Rule 43 as a test for whether preparatory

and concluding activities are—or are not—compensable,

19

We note that the legislators who adopted the statutory definition of “work

time” acted with knowledge, or at least notice, of federal law. See, e.g., Tape

Recording, House Committee on Labor and Management, HB 1340, Mar 10,

1967, Tape 19 (discussing the 1966 FLSA amendments); Tape Recording, House

Floor Debate, HB 1340, Apr 5, 1967, Tape 12, Side 2 (floor statement explaining

the FLSA’s 1966 amendments).

Cite as 370 Or 502 (2022) 527

and the rulemaking history indicates that the rules were

intended to align with federal law as closely as possible.

Likewise, Oregon’s statutory definition of “work time” was

intended to mirror federal law. Although the text of the

definition is ambiguous, the context and legislative his-

tory reveal the legislature’s limited purpose to fill a gap in

coverage. Nothing indicates an intent to diverge from fed-

eral law, which had precluded compensability for certain

activities—including time spent in preliminary and postlim-

inary activities that are not integral and indispensable parts

of an employee’s principal activities nor covered by contract,

custom, or practice—since the enactment of the Portal-to-

Portal Act. Therefore, just as under federal law, whether

time spent waiting for and undergoing mandatory security

screenings on an employer’s premises is compensable under

Oregon law depends on whether the screenings are either

(1) an integral and indispensable part of an employee’s prin-

cipal activities or (2) compensable as a matter of contract,

custom, or practice.

We recognize that plaintiff’s situation—not receiv-

ing compensation for the time she was required to be on her

employer’s premises for the employer’s benefit—certainly

raises a policy question whether all employees should be

compensated for time spent in mandatory security screen-

ings like those at issue in this case. Now that the scope of

compensable time under existing Oregon law is clear in that

regard, plaintiff may bring the issue to the legislature’s

attention and the legislature may, if it chooses, depart from

federal law and adopt its own standard for compensable

time, consistent with any limits imposed by state and fed-

eral law.

The certified question is answered.

FLYNN, J., dissenting.

At issue in this case is the meaning of administra-

tive rules that define the term “hours worked” for purposes

of the requirement that employers pay their employees at

least minimum wage for “each hour worked.” We typically

determine the meaning of administrative rules by employ-

ing “essentially the same framework that we employ when

interpreting a statute”—we consider primarily “the text of

528 Buero v. Amazon.com Services, Inc.

the rule in its regulatory and statutory context.” Noble v.

Dept. of Fish and Wildlife, 355 Or 435, 448, 326 P3d 589

(2014). When I follow that methodology for the regulations

at issue here, I reach a different conclusion than does the

majority about what the drafters of the rule intended. I

therefore dissent.

Starting with the relevant statutory context, the

legislature has created a requirement that, “[e]xcept as

provided” otherwise by statute or by administrative rules,

employers pay a specified minimum wage “for each hour of

work time that the employee is gainfully employed.” ORS

653.025(1). And “unless the context requires otherwise,”

the term “ ‘work time’ includes both time worked and time

of authorized attendance.” ORS 653.010(11). The legisla-

ture has also authorized the Commissioner of the Bureau

of Labor and Industries to “[m]ake such rules as the com-

missioner considers appropriate to carry out the purposes of

ORS 653.010 to 653.261,” ORS 653.040(3), and the commis-

sioner has promulgated rules to further clarify what activ-

ities entitle an employee to be paid wages. Because I agree

with the majority’s conclusion—although not necessarily its

reasoning—that the rules at issue here are not inconsistent

with ORS 653.010, 370 Or at 521, I also answer the certified

question by determining the meaning of the commissioner’s

rules.

The pertinent rules specify that an “employer is

required to pay each employee” no less than the minimum

wage “for each hour worked by the employee.” OAR 839-020-

0010(1). And they define “hours worked” as “includ[ing]”:

“all time during which an employee is necessarily required

to be on the employer’s premises, on duty or at a prescribed

work place and all time the employee is suffered or permit-

ted to work. ‘Hours worked’ includes ‘work time’ as defined

in ORS 653.010(11).”

OAR 839-020-0004(19) (Rule 4(19)). In other words, the rule

identifies multiple categories of time that are “hours worked”

for which the employee must be compensated, one of which

is “time during which an employee is necessarily required

to be on the employer’s premises.” The phrase “necessarily

required” is not defined, but those are terms of ordinary

Cite as 370 Or 502 (2022) 529

meaning. And under all ordinary meanings of which I am

aware, the definition would cover time that the employer

requires its employees to spend on its premises perform-

ing security screenings that are a condition of entering and

leaving the area in which the employees perform their prin-

cipal work activities. Although a factfinder might find that

some or all of such time is not in fact “necessarily required,”

we are addressing the meaning of the administrative rules

in response to a certified question, not answering whether

plaintiff will ultimately prevail on the facts.

The majority recognizes that Rule 4(19) “defines

‘hours worked’ broadly.” 370 Or at 515. But the majority

understands that definition to be limited by another rule,

which specifies that “[p]reparatory and concluding activi-

ties 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.”

OAR 839-020-0043(1) (Rule 43(1)). That is, the majority

understands the effect of the more specific provision to be

a “modification” of the definition of “hours worked” so that

Rule 4(19) would be read as providing: “except as limited by

Rule 43, ‘hours worked’ * * * includes all time during which

an employee is necessarily required to be on the employer’s

premises, on duty or at a prescribed work place.”

In my opinion, however, nothing in the text or

context of either rule suggests that the drafters intended

Rule 43 to function as a limitation on what qualifies as com-

pensable “hours worked.” Rule 4(19) does not indicate that

the definition of “hours worked” is limited or modified by the

principles articulated in Rule 43. Nor does Rule 43 provide

that “[p]reparatory and concluding activities are considered

hours worked only if” the activity is “an integral and indis-

pensable part of a principal activity for which the employee

is employed.” Instead, another rule explains that Rule 43

merely “deals with” the definition of “hours worked” in Rule

4(19) and “discusses principles involved in determining what

constitutes working time.” OAR 839-020-0040(1) (empha-

sis added). In short, Rule 4(19) tells us that “hours worked”

includes—among other things—“all time during which an

employee is necessarily required to be on the employer’s

530 Buero v. Amazon.com Services, Inc.

premises, on duty or at a prescribed work place”; and Rule 43

explains the principle that “preparatory and concluding

activities” will always constitute “hours worked” if they are

either “an integral and indispensable part” of the employees’

principal activities or compensable as a matter of “contract,

custom or practice”—regardless of whether the employee is

“necessarily required to” perform them “on the employer’s

premises.”

The majority reaches a contrary conclusion only

by turning to enactment history indicating that some com-

menters urged the agency to adopt rules that would “provide

consistency and ease of administration” and possibly would

avoid litigation by closely tracking federal law—which we

now know would not require Amazon to compensate employ-

ees for the time spent waiting for and participating in man-

datory screenings on the employer’s premises. See Integrity

Staffing Solutions, Inc. v. Busk, 574 US 27, 35, 135 S Ct

513, 190 L Ed 2d 410 (2014) (identifying employer’s security

screenings as “noncompensable postliminary activities”).

The summary of the exhibits and testimony that were pro-

vided during the rulemaking process indicates that com-

ments on the proposed rules came overwhelmingly from

employers and advocacy organizations for employers, who—

understandably—opposed the burden of any wage require-

ments beyond those that the Federal Fair Labor Standards

Act (FLSA) already imposed. See Presiding Officer’s Report,

In the Matter of Adoption and Amendment of Rules Pertaining

to Payment of Minimum Wages and Overtime Pay (Bureau of

Labor and Industries) (summarizing hearings from October

and November 1989), 2-20.

But that one-sided commentary does not mean that

the agency intended its rules to reflect the wishes of employ-

ers. For example, in the context of explaining why the agency

had rejected changes that the employers were requesting

to overtime rules that were part of the same rule-making

process, the same presiding officer report explains that the

agency was not simply implementing the wishes of employ-

ers that Oregon law track the federal law:

“The Division recognizes that the state and federal

rules regulating these calculations differ significantly. It

is understood that this will have the effect of placing the

Cite as 370 Or 502 (2022) 531

employer in the position of making them [act] differently in

order to comply with both laws, but there does not appear

to be a workable solution in regard to this problem without

there first being changes made in the law.”

Id. at 28. Ultimately, however, the report does not mean-

ingfully address whether the agency intended the definition

of “hours worked” to mean what the words say. The report

does not recommend approval or rejection of any relevant

change to either that definition or to the “preparatory and

concluding activities” rule. Thus, nothing in the adoption

history of the rules persuades me to ignore the words that

the agency chose in adopting the controlling standards for

which employee activities constitute time that the employer

must compensate.

In my opinion, those words are the best indication

that the agency did not intend to mirror the federal standard

for whether activities like those at issue here are compensa-

ble. First, the agency defined compensable time as includ-

ing time that the employee is “necessarily required to be

on the employer’s premises,” which had been repudiated as

the federal standard. As the majority recognizes, that defi-

nition tracks the standard that the United States Supreme

Court originally used—prior to the Portal-to-Portal Act—

to determine the time for which employees were entitled to

be paid wages under the FLSA. See 370 Or at 507 (describ-

ing Congress’s adoption of the “Portal-to-Portal Act,” Pub

L 80-49, 61 Stat 84 (1947) (codified as amended at 29 USC

§§ 251-262), in response to the Court’s interpretation of the

FLSA); see also Anderson v. Mt. Clemens Pottery Co., 328 US

680, 690-91, 66 S Ct 1187, 90 L Ed 1515 (1946) (describing

the FLSA requirement that employees be paid for “hours

worked” as reaching “all time during which an employee is

necessarily required to be on the employer’s premises, on

duty or at a prescribed workplace”). But well before Oregon

adopted the rules at issue here, Congress passed the Portal-

to-Portal Act, to “repudiate Anderson’s holding” and elimi-

nate a focus on whether “an employer required an activity.”

Integrity Staffing, 574 US at 36. I am unable to conclude that

the agency intended to mirror federal law when it adopted

a definition of “hours worked” that was directly contrary to

federal law.

532 Buero v. Amazon.com Services, Inc.

Typically, that historical context would significantly

inform our understanding of an enactment—we would pre-

sume that the commissioner, when choosing a standard for

“hours worked,” was aware that the chosen standard was

that announced in federal cases that predated the Portal-

to-Portal Act and was not the current federal standard.

Cf. Lindell v. Kalugin, 353 Or 338, 355, 297 P3d 1266 (2013)

(explaining that, “as a general rule, when the Oregon legis-

lature borrows wording” from another jurisdiction, “there is

a presumption that the legislature borrowed the controlling

case law interpreting the statute along with it”); OR-OSHA

v. CBI Services, Inc., 356 Or 577, 593, 341 P3d 701 (2014)

(“Court decisions that existed at the time that the legisla-

ture enacted a statute—and that, as a result, it could have

been aware of—may be consulted in determining what the

legislature intended in enacting the law as part of the con-

text for the legislature’s decision.”).

Moreover, although Rule 43 borrows somewhat from

federal law in describing “preparatory and concluding”

activities, the rule departs from the federal law in a sig-

nificant way. The Portal-to-Portal Act uses exclusionary

wording to describe compensable “preliminary” or “postlim-

inary” activities:

“(a) 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

minimum wages, or to pay an employee overtime compen-

sation, for or on account of any of the following activities of

such employee * * *

“* * * * *

“(2) activities which are preliminary to or postlim-

inary 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.”

The United States Supreme Court essentially carved out an

exception to that general exclusion for “activities performed

either before or after the regular work shift”: Such activities

Cite as 370 Or 502 (2022) 533

are included as compensable time if they “are an integral

and indispensable part of the principal activities for which

covered workmen are employed.” Steiner v. Mitchell, 350 US

247, 256, 76 S Ct 330, 334, 100 L Ed 267 (1956).

When Oregon adopted Rule 43, it picked up the inclu-

sion from Steiner—preparatory and concluding activities are

compensable “if the activities performed by the employee are

an integral and indispensable part of a principal activity for

which the employee is employed.” OAR 839-020-0043(1). But

Oregon did not adopt a rule to track the Portal-to-Portal

Act’s general exclusion for such activities. In other words,

under the federal approach, there is a rule of inclusion for a

specific range of preparatory and concluding activities, but

such activities are otherwise expressly excluded from what

qualifies as compensable work—regardless of whether the

employee is “necessarily required” to perform them on the

employer’s premises—because the Portal-to-Portal Act had

abrogated that test. By contrast, the rules that govern com-

pensable work in Oregon mirror the federal rule of inclusion

for a specific range of preparatory and concluding activi-

ties, but do not mirror the federal requirement that such

activities are otherwise excluded from hours worked. On the

contrary, Oregon chose to define “hours worked” as mirror-

ing the old federal test—as including all activities that the

employee is “necessarily required” to perform them on the

employer’s premises. Neither defendant nor the majority has

offered a persuasive explanation for why Oregon’s rules mir-

ror a test that the Portal-to-Portal Act had rejected if that

is not the test that the agency intended to adopt. Had the

agency, instead, intended to adopt the Portal-to-Portal Act’s

broad exclusion for most activities performed prior to or sub-

sequent to the principal work activities, it would have been

easy for the agency to do so. And I am unwilling to ignore

that omission.

For those reasons, I respectfully dissent.