# Amicus Curiae Brief — Encino Motorcars, LLC v. Navarro, 138 S. Ct. 54 (2017) (No. 16-1362)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

No. 16-1362

In the Supreme Court of the Hnited States

ENCINO MOTORCARS, LLC,
Petitioner,

Vv.

L'ECTOR NAVARRO, MIKE SHIRINIAN, ANTHONY PINKINS,
KEVIN MALONE, AND REUBEN CASTRO,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

BRIEF OF U.S. SENATORS PATTY MURRAY,
SHERROD BROWN, AND JACK REED AS
AMICI CURIAE IN SUPPORT OF RESPONDENTS

VINCENT LEVY

DANIEL M. SULLIVAN*

GREGORY DUBINSKY

MATTHEW V.H. NOLLER

HOLWELL SHUSTER &
GOLDBERG LLP

750 Seventh Avenue

New York, NY 10019

(646) 837-5132

dsullivan@hsgllp.com

Counsel for Amici Curiae
*Counsel of Record

December 15, 2017

TABLE OF CONTENTS

ppg 8, LE ii
INTEREST OF AMICI CURIALE ................cccc00000000000- l
INTRODUCTION AND SUMMARY OF THE
RESET AER oe oO Rae hae ae eC 1
REESE rr ONL “EE eee ee an ROD aD 4
I. Section 13(b)(10)(A), By Its Terms, Does Not
Cover Service Advisors. ...................000scsceceeeeeeees 4

Il. Section 13(b)(10)(A)’s History Confirms That
Congress Intentionally Drafted The
Exemption Narrowly To Exclude Service

il

TABLE OF AUTHORITIES
Cases

A.H. Phillips, Inc. v. Walling,
ee Os ad idsdisicicnicncsinstiseninsnanniessadlstabeddans 17

Addison v. Holly Hill Fruit Prods.,
ee ee I iscisitcssissomabichatetntocninnesenteenenaehe 9,17

Belt v. EmCare, Inc.,
444 F.3d 403 (5th Cir. 2006)..............................000. 12

Brooklyn Sav. Bank v. O'Neil,
ee I iiaiiicnciccctcncninnatatanediieniiisedunienl 16

Buehlman v. Ide Pontiac, Inc.,
No. 6:15-cv-6745(MAT), 2016 WL 6581757

Ff AD 0 eer 8
Citicorp Indus. Credit, Inc. v. Brock,

gf IRENE eae Bae 9,17
Clark v. United Emergency Animal Clinic, Inc.,

390 F.3d 1124 (Oth Cir. 2004)....................cccecceeeees 12
CSX Transp., Inc. v. McBride,

SR a i cae 4
Dep't of Revenue v. ACF Indus., Inc.,

gt | ET TER eo ROR One oe 17
Encino Motorcars, LLC y. Navarro,

— f hh 0 SE ARR es Ae 2,13
FCC v. Fox Television Stations, Inc.,

a i cccnctitin:stariincnininsinenccsnisinecinadmdaniid 5
Giles v. California,

ee I I i ania eh ici sisidadieeenladiaans 5
Henson v. Santander Consumer USA Inc.,

ee a es a evsicidaisacnindsdsalcaddondidaissiiausmeis 5
Higginbotham v. Army,

No. SF-0752-12-0769-I-1, 2012 WL 8203340
EE Es Bg ED tintcnscccnsvecictincisctenianbueteniaisiaia 12

ill

In re D.S., No. 07-934,

2007 WL 2848801 (Empl. Comp. App. Bd. Aug. 17,

EE ELLER a ee a 12
In re Panganiban,

13 I. & N. Dec. 581 (B.1.A. 1970).....................0000- 12
In re Springfield Electrotype Serv., Inc.,

Be HI CIO Pa cecccccccssoccscccccssccctncccssossccess 12

In re Stamatiades,
111. & N. Dec. 643 (B.1.A. 1966)... 12
In re VSP-F-II, LLC,
2017 WL 5654954 (DHS Admin. App. Office Oct.
ES NES 12

In re Womack,
Nos. 2013-LHC-01205 et al., 2014 WL 6482197
(Ben. Rev. Bd. June 30, 2014)... ccccccccceee 12

Johnson v. Wave Comm GR LLC,
4 F. Supp. 3d 423 (N.D.N.Y. 2014)...........0.00000000.. 12

Kasten v. Saint-Gobain Performance Plastics Corp.,
EEE 2

Loughrin v. United States,
ee 6

Millbrook v. United States,
dtc ccenactsccnsunsunecsnunesenancossees 5

Perry v. Merit Sys. Prot. Bd.,
eT 9

Powell v. U.S. Cartridge Co.,
EL 1, 2, 16

[Title Redacted by Agency],
Bd. Vet. App. 9318727, 1993 WL 13604663
oe 5 12

TVA v. Hill,
ee 9

iv

United States v. Darby,

eee 1, 16
United States v. Williams,

i sedaneinniiendsl 5
Utility Air Regulation Grp. v. EPA,

i allel 4
Warger v. Shauers,

1 eae 4
Statutes
I Oa ienieeenibaniineeteniantiaeiiodl 2
| ee 15
29 U.S.C. § BIBG)NK1O) (1970) ..........ccccccccccccccercecceceees 10
a ee ee a cersceveccnesensnnssssestansess passim
es I i iiacininciteninnmenieniemmnnnanians 10
Fair Labor Standard Amendments of 1961,

. OF FS | 8 ee 10
Fair Labor Standards Amendments of 1966,

Pub. L. No. 89-601, 80 Stat. 830.............................. 9
Fair Labor Standards Amendments of 1974,

Pub. L. No. 93-259, 88 Stat. 55..................0..... 10, 16
Other Authorities
ne NE iicccccnccsecesecnsscescnsnicnnsenseten 12
106 Cong. Rec. 15,195 (19G0) ..............cccccccceeeeeeeeeeees 13
106 Cong. Rec. 16,693 (19G0).................cccccceeeeeeeeeeees 14
Oe Ce Se iitenenccenccscesesnscsenesnessnss 15
112 Cong. Rec. 20,502-06 (1966) .................. 10, 11, 14
110 Come. Rec. 31,961 (10738)..........cccccccccccccscccseseecees 12
RDS Copmees, Biae. BEE CR TOD occcccencccccescsccccsccecssecsseses 12

124 Cong. Rec. 27,797 (1978) ....................0ccccssrsceseees .3

v

Fair Labor Standards Amendments of 1971:
Hearings Before the Subcomm. on Labor of the
Comm. on Labor and Pub. Welfare, 92d Cong.
RECESSES ERE ERE LONE ow SSS ean oe ee TE 11

H.R. Rep. No. 81-1797 (1951)..............cccceeeeeeeeeeeeeeeees 12

Harold Goldstein, The Early History of the
Occupational Outlook Handbook, Monthly Labor

Rev., May 1999, https://goo.gl/jdYrC6 ................... 11
IRS Chief Counsel Advisory 201349013,
2013 WL 6355756 (Dec. 6, 2013) .....................000- 12

Letter from Members of Congress to Richard M.
Brennan (Sept. 26, 2008), https://goo.gl/NhqhM«x. .1

Robert N. Willis, The Evolution of the Fair Labor
Standards Act, 26 U. Miami L. Rev. 607 (1972)...16

U.S. Dep’t of Labor, Occupational Outlook Handbook,
Bulletin No. 940 (1949 ed.) ...................ccceeeeeeeeeeeees 11

U.S. Dep’t of Labor, Occupational Outlook Handbook,
Bulletin No. 998 (1951 ed.) ................ccccceeeeeeeeeeeeees 11

U.S. Dep’t of Labor, Occupational Outlook Handbook,
Bulletin No. 1450 (1966-67 ed.) ...................... 13, 15

U.S. Dep’t of Labor, Occupational Outlook Handbook,
Bulletin No. 1785 (1974—75 ed.) ...................... 13, 15

INTEREST OF AMICI CURIAE

Amici are United States Senators Patty Murray
(Washington), Sherrod Brown (Ohio), and Jack Reed
(Rhode Island).'! They have a strong interest in ensur-
ing the Fair Labor Standards Act (FLSA) is inter-
preted correctly. Senator Murray is the ranking mem-
ber of the Senate Committee on Health, Education,
Labor, and Pensions (HELP), which has jurisdiction
over the FLSA. Senators Brown, Reed, and Murray,
along with other Members of Congress, submitted a
comment on the Department of Labor's 2008 proposed
rule regarding Section 13(b)(10)(A) of the FLSA. See
Letter from Members of Congress to Richard M. Bren-
nan at 7 (Sept. 26, 2008), https://goo.gl/NhqhMx.

Amici are intimately familiar with Congress’s in-
tent in creating the FLSA’s workplace protections and
crafting narrow exemptions from those protections.
They submit this brief to explain how Petitioner's ar-
guments are inconsistent with the FLSA’s text and
congressional intent.

INTRODUCTION AND
SUMMARY OF THE ARGUMENT

When Congress enacted the FLSA in 1938, it “set
up a comprehensive legislative scheme,” United States
v. Darby, 312 U.S. 100, 109 (1941), to protect Ameri-
can workers in “bold and sweeping terms,” Powell v.
U.S. Cartridge Co., 339 U.S. 497, 516—17 (1950). Con-
gress’s “basic objectives” were to “prohibit ‘labor con-

' Counsel for Petitioner and Respondents have filed blanket con-
sents to the filing of amicus briefs. No counsel for a party au-
thored this brief in whole or in part, and no person or entity other
than amici or their counsel made a monetary contribution to the
preparation or submission of this brief.

ditions detrimental to the maintenance of the mini-
mum standard of living necessary for health, effi-
ciency, and general well-being of workers” through
“substantive wage, hour, and overtime standards.”
Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1, 11 (2011) (quoting 29 U.S.C. § 202(a)).

The FLSA requires covered employers to pay one
and one-half times an employee’s regular rate of pay
for each hour the employee works beyond forty per
workweek. 29 U.S.C. § 207(a)(1). Section 13(b)(10)(A)
of the statute, however, exempts automobile dealer-
ships from the overtime provision as to three limited
occupations: “any salesman, partsman, or mechanic
primarily engaged in selling or servicing automo-
biles.” 29 U.S.C. § 213(b)(10)(A).

Because “[b]readth of coverage was vital to” the
FLSA’s “mission,” exemptions from its requirements
are “narrow and specific.” Powell, 339 U.S. at 516. The
exemption at issue here is no different. Yet Petitioner
proposes a fourth exempt occupation: service advisors.
Petitioner’s interpretation does violence to Section
13(b)(10)(A)’s text, distorts its history, and invites the
Court to override Congress’s policy judgments and
clear intent.

First, the text. To fall under Section 13(b)(10)(A)’s
exemption, a “salesman, partsman, or mechanic” must
either “sel[l]” automobiles or “servicfle]” them. No
other option is available. And service advisors neither
sell nor service automobiles. Instead, as Petitioner ad-
mits, at most they sell servicing performed by others.
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,
2121 (2016); Pet. Br. 1, 29. Section 13(b)(10)(A) does
not cover the selling of automobile servicing, so this
should be the end of the matter.

Petitioner nonetheless contends that the statutory
exemption should cover service advisors because, Pe-
titioner asserts, they are salesmen who are “integral
to the process of servicing vehicles” performed by oth-
ers. Pet. Br. 23. According to Petitioner, “it makes no
sense to hold that service advisors are non-exempt.”
Id. at 29. But it was for Congress to decide whether
such an exemption was warranted, not Petitioner or
the courts. Congress made that decision when it en-
acted the exemption, the plain terms of which do not
cover service advisors. The Court should respect Con-
gress’s policy choice.

If the text of Section 13(b)(10)(A) left any doubt
whether service advisors are exempt, statutory and
legislative history eliminate it. Section 13(b)(10)(A)
replaced an earlier exemption that covered all em-
ployees of automobile dealerships. As Congress con-
sidered which automobile dealership employees
should be exempted from overtime protections, legis-
lators discussed the responsibilities of salesmen, me-
chanics, and partsmen, and understood them to be dif-
ferent than those of service advisors. Indeed, a con-
temporaneous version of the Department of Labor's
Occupational Outlook Handbook, a dictionary that de-
fines occupations in particular industries, distin-
guished the job of service advisor from the jobs of
salesman, mechanic, and partsman. With this back-
ground understanding, Congress deliberately drafted
Section 13(b)(10)(A) to cover salesmen, mechanics,
and partsmen, but not service advisors.

Congress had good reasons to do so. It exempted
salesmen, mechanics, and partsmen because they reg-
ularly worked off-site during irregular hours, making
it hard for employers to calculate their overtime obli-
gations. Service advisors, in contrast, worked regular
hours on dealership grounds, so they did not present

the same concern. Petitioner’s alternative explana-
tions for the exemption lack support in the legislative
history and are inconsistent with the FLSA’s other
provisions.

The narrowing of the exemption in Section
13(b)(10)(A) is consistent with the FLSA’s evolution in
general. Over the years, Congress has expanded the
F LSA’s protections while limiting its exemptions. It is
this repeated and consistent statutory history that
justifies the Court’s practice of interpreting FLSA ex-
emptions narrowly. The Court should not disregard
the lines Congress has drawn by interpreting Section
13(b)(10)(A) more broadly than its text requires. The
Court should defer to Congress’s design and affirm the
decision of the Court of Appeals.

ARGUMENT

The Court construes a statute’s provisions “in their
context and with a view to their place in the overall
statutory scheme.” Utility Air Regulation Grp. v. EPA,
1348. Ct. 2427, 2441 (2014) (internal quotation marks
omitted). The Court should also analyze relevant stat-
utory and legislative history. See Warger v. Shauers,
135 S. Ct. 521, 527 (2014); CSX Transp., Inc. v.
McBride, 564 U.S. 685, 695 (2011).

Here, all indicia of congressional intent lead to the
same conclusion: Service advisors are not exempt from
the FLSA’s overtime protections.

I. Section 13(b)(10)(A), By Its Terms, Does Not
Cover Service Advisors.

1. Section 13(b)(10)(A) exempts from the FLSA’s
overtime protections “any salesman, partsman, or me-
chanic primarily engaged in selling or servicing auto-
mobiles.” 29 U.S.C. § 213(b)(10)(A). The parties spend
considerable time debating whether this text should

be read to pair “salesman” only with “selling,” or with
both “selling” and “servicing.”? As Respondents and
the Court of Appeals explain, the first reading is the
most natural and best honors ordinary usage. See
Resp. Br. 31—39; Pet. App. 16—19.

But even if the statute covers both salesmen who
sell and salesmen who service (which, as Respondents
explain, is a contradiction in terms), service advisors
are still not covered for a simple reason: Section
13(b)(10)(A) only exempts salesmen who are “primar-
ily engaged in selling or servicing automobiles,” and
service advisors are not “engaged in” either activity.
To “engage in” an activity is to personally participate
in it. Resp. Br. 24 (citing dictionary definitions). This
Court regularly uses the phrase “engaged in” to mean
personally taking part in certain conduct.® Applying
that ordinary understanding, what service advisors
are “engaged in” is, at most, selling services, not sell-
ing or servicing automobiles.

Petitioner concedes, as it must, that service advi-
sors do not sell automobiles. Pet. Br. 37—38. It also tac-

2 Respondents also point out that service advisors may not even
qualify as “salesmen.” Resp. Br. 14-16.

° For examples in just the last ten years, see Henson v. Santander
Consumer USA Inc., 137 S. Ct. 1718, 1723 (2017) (the Court is
“engaged in the business of interpreting statutes”); Millbrook v.
United States, 569 U.S. 50, 56 (2013) (aw enforcement officers
are “engaged in investigative or law enforcement activity” (inter-
nal quotation marks omitted)); FCC v. Fox Television Stations,
Inc., 567 U.S. 239, 244 (2012) (SEC is “not engaged in impermis-
sible censorship”); Giles v. California, 554 U.S. 353, 359 (2008)
(‘defendant engaged in conduct designed to prevent [a] witness
from testifying” (emphasis omitted)); United States v. Williams,
553 U.S. 285, 293 (2008) (“children engaged in sexually explicit
conduct’).

itly concedes that service advisors do not service auto-
mobiles in the ordinary sense of “maintaining” or “re-
pairing” them. Pet. App. 11—12; Resp. Br. 20. Indeed,
Petitioner admits that service advisors “are engaged
in the selling of the servicing” done by partsmen and
mechanics. Pet. Br. 29. That admission is fatal be-
cause Section 13(b)(10)(A) does not cover salesmen
who, if they sell anything, sell services for automo-
biles, but rather salesmen who sell automobiles them-
selves.

Petitioner argues, nevertheless, that the exemp-
tion covers service advisors because selling servicing
of automobiles is equivalent to “servicing” them. Ac-
cording to Petitioner, “engaged in . .. servicing auto-
mobiles” should be read to mean “engaged in ‘sales ac-
tivities’ that ‘are integral to the process of servicing
vehicles.” Pet. Br. 13, 26; see also Pet. Br. 42 (claiming
service advisors are integral to “the servicing pro-
cess”). This argument rewrites Section 13(b)(10)(A)’s
text, which does not include Petitioner’s proposed def-
inition of servicing to encompass selling.

The structure of the exemption confirms that Peti-
tioner’s interpretation is wrong. “Selling” and “servic-
ing” are, by virtue of being separated by the word “or,”
distinct categories. See Loughrin v. United States, 134
S. Ct. 2384, 2390 (2014) (“or” is “almost always dis-
junctive, that is, the words it connects are to be given
separate meanings” (internal quotation marks omit-
ted)). And what salesmen, partsmen, and mechanics
“sell” or “service” is “automobiles.” Petitioner wants
the statute to cover those who, they claim, sell servic-
ing of automobiles, Pet. Br. 29, but the text cannot
bear that meaning. “Sell” and “service” refer to “auto-
mobiles,” not to each other.

~“]

Petitioner's approach suffers from another inter-
pretive vice: it reads a dozen words out of the statute.
After all, every employee who is “employed by a non-
manufacturing establishment primarily engaged in
the business of selling” automobiles, 29 U.S.C.
§ 213(b)(10)(A), is on some level engaged in the “pro-
cess” of selling or servicing automobiles. Why else
would the car dealership have employed the individ-
ual in the first place? Petitioner’s approach thus emp-
ties of all meaning the statute’s prescription that, alt-
hough they may work for car dealerships, “salesm[e}n,
partsmfe]n, [and] mechanics” are exempt only if they
are “primarily engaged in selling or servicing automo-
biles.”

2. Petitioner asserts that it “makes no sense” to ex-
clude service advisors from Section 13(b)(10)(A). E.g.,
Pet. Br. 29, 34. But when Congress adopted that ex-
emption, it concluded otherwise. Petitioner proffers no
justification for departing from Congress’s judgment.

Petitioner's primary argument is that a service ad-
visor is “in some sense a hybrid” of a salesman and a
mechanic. Pet. Br. 34. But a hybrid of A and B is nei-
ther A nor B; a hypothetical statute that covered “lab-
radors or poodles” would not apply to labradoodles.
And Petitioner's argument does not address the re-
quirement that these supposed hybrids, which are nei-
ther salesmen, partsmen, nor mechanics, must still
sell or service automobiles.

Petitioner calls it “nonsensical to suggest that an
individual primarily engaged in selling the servicing
of automobiles is engaged in neither selling nor servic-
ing automobiles.” Pet. Br. 29. That is not nonsensical;
it is accurate. Selling servicing is a different activity
from either selling automobiles or servicing automo-

biles. For much the same reason, petitioner's asser-
tion that service advisors “are not engaged in selling
or servicing anything other than automobiles,” id., is
incorrect. Service advisors do not sell automobiles,
and they do not service anything at all.

At bottom, what Petitioner is really saying is that
service advisors perform tasks that are similar to
what salesmen and mechanics do, which should be
close enough. But Congress chose its words carefully
to enact a narrow carve-out from the FLSA’s broad
protections, which does not leave room for Petitioner’s
impressionistic method of statutory interpretation.
See also infra 16—17.

Petitioner also raises concerns that Congress’s
choice not to exempt service advisors will cause “divi-
sion” among dealerships’ employees and will “not ad-
vance the core policy goals of the FLSA.” Pet. Br. 33—
34. These arguments are wrong on the merits, but the
bigger problem is that Petitioner is directing them to
the wrong institution. When interpreting a statute,
the Court’s “appraisal of the wisdom or unwisdom of a
particular course consciously selected by the Congress

‘ Petitioner claims this approach renders Section 13(b)(10)(A)'s
reference to partsmen superfluous because (Petitioner says)
partsmen also do not service automobiles. Pet. Br. 40-41. The
Ninth Circuit explained that this is not true, Pet. App. 13—15, but
even if it were true, it would not matter. A “partsman” is exempt
oniy to the extent that he is “primarily engaged in .. . servicing
automobiles.” 29 U.S.C. § 213(b)(10)(A). Some partsmen may ser-
vice automobiles and be exempt, while others may not. That does
not render the statute’s inclusion of partsmen superfluous. See
Buehiman v. Ide Pontiac, Inc., No. 6:15-cv-6745(MAT), 2016 WL
6581757, at *3—4 (W.D.N_Y. Nov. 7, 2016) (holding that partsmen
who do not service automobiles are not exempt and rejecting ar-
gument that this renders the partsman exemption superfluous).

is to be put aside.” TVA v. Hill, 437 U.S. 153, 194
(1978).

If Petitioner believes Section 13(b)(10)(A) needs re-
vision, “there’s a constitutionally prescribed way to do
it. It’s called legislation.” Perry v. Merit Sys. Prot. Bd.,
137 S. Ct. 1975, 1990 (2017) (Gorsuch, J., dissenting).
Congress, through and with the HELP Committee, is
the appropriate body to assess Petitioner’s policy con-
cerns. The Court’s task is to honor Congress’s judg-
ments by enforcing the text it enacted. See Citicorp In-
dus. Credit, Inc. v. Brock, 483 U.S. 27, 34 (1987) (re-
fusing to expand FLSA exemptions based on policy);
Addison v. Holly Hill Fruit Prods., 322 U.S. 607, 618—
20 (1944) (same). That text does not exempt service
advisors.

II. Section 13(b)(10)(A)’s History Confirms That
Congress Intentionally Drafted The Exemp-
tion Narrowly To Exclude Service Advisors.

1. Congress’s omission of service advisors from Sec-
tion 13(b)(10)(A) was no accident. Today’s exemption
is the result of a lengthy process in which Congress
carefully narrowed a broader exemption for all auto-
mobile dealership employees. Congress considered the
responsibilities of various dealership employees and—
consistent with the contemporary public meaning of
the occupational terms—understood that the job of
service advisor was distinct from that of salesman,
partsman, and mechanic. Congress then wrote an ex-
emption that covered salesmen, partsmen, and me-
chanics, but not service advisors.

Section 13(b)(10)(A) began its life in the 1966
amendments to the FLSA. Fair Labor Standards
Amendments of 1966, Pub. L. No. 89-601 § 209(b), 80
Stat. 830, 836 (codified at 29 U.S.C. § 213(b)(10)
(1970)). Before 1966, the FLSA contained a blanket

10

exemption from its minimum-wage and overtime pro-
visions for “any employee of a retail or service estab-
lishment which is primarily engaged in the business
of selling automobiles, trucks, or farm implements.”
Fair Labor Standard Amendments of 1961, Pub. L.
No. 87-30 § 9, 75 Stat. 65, 71 (codified at 29 U.S.C.
§ 213(a)(19) (1964)).

The 1966 amendment narrowed that exemption in
two respects. First, it limited the exemption to the
FLSA’s overtime provisions. 29 U.S.C. § 213(b)(10)
(1970). Second, it reduced the scope of the exemption
from “any employee” to “any salesman, partsman, or
mechanic primarily engaged in selling or servicing au-
tomobiles, trailers, trucks, farm implements, or air-
craft.” Id.

Congress further tailored the exemption in 1974.
Fair Labor Standards Amendments of 1974, Pub. L.
No. 93-259 § 14, 88 Stat. 55, 65. It removed the exemp-
tion for trailer and aircraft partsmen and mechanics,
creating a new exemption for just “salesm[fe]n primar-
ily engaged in selling trailers, boats, or aircraft.” 29
U.S.C. § 213(6)(10)(B). It also enacted Section
13(b)(10)(A) in its current form.

Congress paid close attention to the nature of the
occupations it exempted from the FLSA’s overtime
protections. Legislators discussed the distinct respon-
sibilities of automobile salesmen, partsmen, and me-
chanics.° They were also aware of service advisors’ re-
sponsibilities, which differed from those of salesmen,

5 See 112 Cong. Rec. 20,502 (1966) (Sen. Bayh) (“The partsman
classifies, shelves and dispenses parts used by mechanics’); id.
at 20,503 (Sen. Hruska) (“[YJou can buy a new tractor from a
salesman{.}"); id. at 20,504 (Sen. Yarborough) (“[T]he salesman
... Can go out and sell an Oldsmobile, a Pontiac, or a Buick all
day long and all night.”); id. (Sen. Bayh) (partsmen “come down

11

partsmen, and mechanics as legislators understood
them.® These discussions show that Congress under-
stood service advisors to be distinct from salesmen,
partsmen, and mechanics—the “three occupations”
covered by the exemption. 112 Cong. Rec. 20,502.

2. Congress’s understanding that service advisors
were distinct from salesmen, partsmen, and mechan-
ics reflected the definitions of the relevant occupations
in the 1966—1967 and 1974-1975 editions of the De-
partment of Labor’s Occupational Outlook Handbook
(OOH).

Congress established the Occupational Outlook
Service within the Bureau of Labor Statistics (BLS) in
1940, in response to a Presidential Advisory Commit-
tee’s recommendation that BLS “make long-range
studies of. . . occupational outlook.” Harold Goldstein,
The Early History of the Occupational Outlook Hand-
book, Monthly Labor Rev., May 1999, at 3, available
at https://goo.gl/jdYrC6. BLS published the first OOH
in 1949. U.S. Dep’t of Labor, OOH, Bulletin No. 940
(1949 ed.). Since then, “every informed person in the
field of vocational guidance has come to regard it as
one of his indispensable tools.” U.S. Dep’t of Labor,
OOH, Bulletin No. 998, at II (1951 ed.).

Courts, Congress, and federal agencies also rely on
the OOH. Courts have recognized that the OOH is in-
structive in determining the common understanding

to the store to show [the mechanic] which part should be used”);
id. (Sen. Yarborough) (mechanics “repair .. . cars and tractors’).

® Fair Labor Standards Amendments of 1971: Hearings Before
the Subcomm. on Labor of the Comm. on Labor and Pub. Welfare,
92d Cong. 780-81 (1971) (service advisors “wait[] on the cus-
tomer,” “tell you what that repair job is going to cost on your au-
tomobile before the job is actually performed,” and “contact the
customer before any further work is done on the automobile”).

12

of occupational terms in the FLSA. E.g., Belt v. Em-
Care, Inc., 444 F.3d 403, 406, 416 (5th Cir. 2006);
Clark v. United Emergency Animal Clinic, Inc., 390
F.3d 1124, 1127 (9th Cir. 2004); Johnson v. Wave
Comm GR LLC, 4 F. Supp. 3d 423, 439 (N.D.NLY.
2014). Congress has cited the OOH as a “very im-
portant and widely used” source for up-to-date infor-
mation about jobs in the United States. H.R. Rep. No.
81-1797, at 91 (1951); see 96 Cong. Rec. 1912 (1950)
(citing the OOH); 119 Cong. Rec. 21,261 (1973) (same);
124 Cong. Rec. 21,060, 27,797 (1978) (same). And nu-
merous agencies rely on the OOH in administrative
decisions, including some contemporaneous with the
1966 and 1974 FLSA amendments. E.g., In re VSP-F-
i, LLC, 2017 WL 5654954, at *3 n.3 (DHS Admin.
App. Office Oct. 31, 2017) (deeming the OOH an “au-
thoritative source[] on the duties of the wide variety of
occupations that [it] address[es]”).’

In 1966 and 1974, the OOH gave separate defini-
tions for automobile salesmen, partsmen (or “parts
countermen”), mechanics, and service advisors. These
common-sense definitions accord with Respondents’
interpretation of Section 13(b)(10)(A). Automobile
salesmen, according to the OOH, sell automobiles.

" See In re Panganiban, 131. & N. Dec. 581, 582-83 (B.I.A. 1970)
(relying on the OOH); In re Springfield Electrotype Serv., Inc.,
166 N.L.R.B. 639, 642 n.16 (1967) (same); In re Stamatiades, 11
I. & N. Dec. 643, 644—45 (B.1.A. 1966) (same); accord In re Wom-
ack, Nos. 2013-LHC-01206 et al., 2014 WL 6482197, at *20 (Dep't
of Labor Ben. Rev. Bd. June 30, 2014); Higginbotham v. Army,
No. SF-0752-12-0769-I-1, 2012 WL 8203340 (MSPB Dec. 11,
2012); In re D.S., No. 07-934, 2007 WL 2848801, at *3 (Empl.
Comp. App. Bd. Aug. 17, 2007); [Title Redacted by Agency], Bd.
Vet. App. 9318727, 1993 WL 13604663, at *9 (Jan. 1, 1993): IRS
Chief Counsel Advisory 201349013, 2013 WL 6355756 (Dec. 6,
2013).

13

U.S. Dep’t of Labor, OOH, Bulletin No. 1450, at 309—
10 (1966-67 ed.) [hereinafter 1966 OOH]; U.S. Dep’t
of Labor, OOH, Bulletin No. 1785, at 220—21 (1974—75
ed.) [hereinafter 1974 OOH]. Partsmen identify, sell,
and repair the parts needed for automobile repairs.
1966 OOH at 312-13; 1974 OOH at 219—20. Mechan-
ics do “preventative maintenance, diagnose break-
downs, and make repairs.” 1966 OOH at 477—78; 1974
OOH at 417-18. Service advisors figure out what ser-
vices a customer needs, calculate their cost, send the
order to the mechanic, and deal with customer com-
plaints. 1966 OOH at 314—15; 1974 OOH at 222-23.

The OOH’s definitions reveal that the public un-
derstood in 1966 and 1974 (as today) that “service ad-
visor” is a different occupation than “se'esman,”
“partsman,” or “mechanic.” Importantly, tlie defini-
tions align with legislators’ understanding of the four
occupations’ distinct responsibilities. Supra n.5; see
also Encino, 136 S. Ct. at 2121—22 (similar definition).
That shows that Congress intended the terms “sales-
man,” “partsman,” and “mechanic” in Section
13(b)(10)(A) to carry the common meanings reflected
in the OOH, which do not encompass the separate—
and separately defined—occupation of service advisor.
And it confirms that if Congress had meant to exempt
service advisors, Congress would have done so by
naming them directly.

3. Section 13(b)(10)(A)’s purposes explain why
Congress chose to exempt salesmen, partsmen, and
mechanics, but not service advisors. When Congress
enacted the blanket exemption for dealership employ-
ees in 1961, it did so based on its judgment that deal-
ership employees work irregular hours, making over-
time too hard to calculate. See 106 Cong. Rec. 15,195
(1960) (Rep. Dent) (“[I}f a man happens to be in a type
of employment where his hours are uncontrollable, so

14

far as his earnings are concerned, he should not be put
... under a maximum hours law.”); id. at 16,693 (Sen.
Keating) (“[T]he difficulty . . . has been that they work
odd hours in order to get their work done.”).

After 1961, Congress realized the blanket exemp-
tion was overbroad, and it sought to identify only
those employees who actually worked irregular hours
or worked off of dealership grounds. In committee, leg-
islators considered facts about various occupations to
decide which had the necessary “vicissitudes and .. .
uncertainties” to justify the exemption. 112 Cong. Rec.
20,506 (Sen. Javits).

Legislators ultimately decided that automobile
salesmen, mechanics, and partsmen qualified. Sales-
men and mechanics “work . . . outside” and have “dif-
ficulty . .. keeping regular hours. Jd. at 20,504 (Sen.
Yarborough). Salesmen “go out at unusual hours,” id.
(Sen. Bayh), while mechanics “go[] out and answer|]
calls in the rural areas,” id. (Sen. Yarborough). There-
fore, “[i]t is difficult to keep their time records.” Jd. at
20,505 (Sen. Clark). Similarly, partsmen worked “on
an irregular schedule” for “longer hours or at other
than regular times.” Jd. at 20,502 (Sen. Bayh). As with
salesmen and mechanics, “it would not be easy to
place partsmen on a time-clock basis and to compute
overtime compensation in an equitable manner.” /d.

Legislators contrasted automobile salesmen,
partsmen, and mechanics with other employees who
work inside during regular hours, such as “retail
clerks,” “secretaries,” and “clerical workers.” Jd. at
20,504 (Sen. Yarborough). Those employees, legisla-
tors thought, should receive overtime pay. Jd. And, in
the ways that matter, service advisors are much more
like those nonexempt employees than they are like au-
tomobile salesmen, partsmen, or mechanics. Service

15

advisors work regular hours and interact with cus-
tomers at the dealership rather than traveling off-site.
1966 OOH at 314, 316; 1974 OOH at 222-24. It is sim-
ple for employers to calculate the overtime they owe
service advisors, even when such employees are paid
commissions. Law Profs. Br. 14-17. Exempting ser-
vice advisors, therefore, would not advance Section
13(b)(10)(A)’s purposes, even though these employees
(like other non-exempt clerical staff) further the deal-
ership’s commercial mission of selling and servicing
automobiles.

4. Denying the plain import of Section
13(b)(10)(A)’s history, Petitioner hypothesizes several
alternative purposes for the exemption. Besides being
ahistorical, those hypotheses misunderstand the
FLSA’s design. For example, Petitioner argues that
service advisors should be exempt because they are
paid commissions. Pet. Br. 32—33. But Congress did
not think the mere fact that some automobile sales-
men, partsmen, and mechanics receive commissions
was enough to justify the exemption. To the extent leg-
islators referred to those employees’ commissions, it
was only to explain that commission pay caused them
to work irregular hours. See 112 Cong. Rec. 11,289
(Rep. Andrews) (“It is impossible to successfully work
these employees on a schedule basis because their
ability to earn commissions depends on their availa-
bility when sales can be made or repairs are needed.”).
That is not true of service advisors.

And, in fact, the FLSA does not exempt all employ-
ees who earn commissions. Law Profs. Br. 12—14. It
exempts such employees only if they earn 1.5 times
the minimum wage and earn more than half of their
compensation from commissions. 29 U.S.C. § 207(i).
To exempt all service advisors based on their commis-
sions, even if they do not satisfy Section 207(i), would

16

upset Congress’s decision to exempt only some com-
missioned employees.

Petitioner also argues that service advisors should
be exempt because they are paid well, Pet. Br. 34, but
nothing in Section 13(b)(10)(A) turns on an employee's
compensation, Law Profs. Br. 8-10. If Congress had
wanted to restrict overtime protections to only those
dealership employees who earn less than a certain
amount, Congress would have—and easily could
have—done so explicitly when it narrowed the exemp-
tion in 1966. Congress simply chose not to do so.

5. The process by which Congress enacted Section
13(b)(10)(A)— progressively narrowing a broader ex-
emption to cover only a small number of carefully se-
lected occupations—tracks its general approach to the
FLSA. Congress passed the FLSA to create broad
wage and hour protections for American workers.
Powell, 339 U.S. at 516; Darby, 312 U.S. at 109. Since
then, it has continually expanded the FLSA’s protec-
tions. The 1966 amendments, for example, extended
the FLSA’s coverage to “over eight million additional
employees.” Robert N. Willis, The Evolution of the
Fair Labor Standards Act, 26 U. Miami L. Rev. 607,
625 (1972). Subsequent amendments broadened its
scope even further. E.g., Fair Labor Standards
Amendments of 1974 §§ 4, 6-8, 88 Stat. at 56-62.

At the same time, Congress has carefully tailored
the F LSA’s exemptions to cover only “narrow and spe-
cific” categories of employees. Powell, 339 U.S. at 517.
All employees are protected unless they are “expressly
exempted.” Brooklyn Sav. Bank v. O'Neil, 324 U.S.
697, 710 (1945). It is this fact, as well as the remedial
purpose of the statute, that justifies the Court’s
longstanding practice of interpreting FLSA exemp-

17

tions no more broadly than their text requires. Con-
trary to Petitioner’s contention, this practice reflects
the Court’s duty to interpret exemptions “fairly and
correctly,” Pet. Br. 50, and pays “due regard” to the
FLSA exemptions’ text and history by reading the ex-
emptions as the narrow carve-outs Congress intended
them to be, A.H. Phillips, Inc. v. Walling, 324 U.S.
490, 493 (1945). As the Court has explained, the “de-
tail” and “particularity” of FLSA exemptions “pre-
clude their enlargement by implication.” Addison, 322
U.S. at 617; Citicorp. Indus. Credit, 483 U.S. at 35
(quoting Addison).

* * o *

The FLSA’s text and history reveal that the “stat-
utory plan,” Dep’t of Revenue v. ACF Indus., Inc., 510
U.S. 332, 340 (1994), is to protect workers unless they
are clearly exempted. Petitioner would disrupt that
plan by expanding Section 13(b)(10)(A)’s plain text
through tortured textual analysis and appeals to pol-
icy. This Court has rejected similar attempts in the
past. Citicorp. Indus. Credit, 483 U.S. at 34—35; Addi-
son, 322 U.S. at 618-20. It should do so again. To
honor congressional intent and “the distinctive func-
tions of the legislative and judicial processes,” Addi-
son, 322 U.S. at 618, the Court should follow Section
13(b)(10)(A)’s text and history where they lead, and
hold that service advisors are not exempt from the
F LSA’s overtime protections.

18

CONCLUSION

The Court should affirm the judgment of the Court
of Appeals.

Respectfully submitted,

VINCENT LEVY
DANIEL M. SULLIVAN*
GREGORY DUBINSKY
MATTHEW V.H. NOLLER
HOLWELL SHUSTER &
GOLDBERG LLP
750 Seventh Avenue
New York, NY 10019
(646) 837-5132
dsullivan@hsgllp.com
*Counsel of Record

December 15, 2017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0747%3A13. Public record. Not legal advice.