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The Standard of Review; Episode 9

Posted by Ashley Woods | Nov 15, 2021 | 0 Comments

In this month's podcast episode, Corrie interviews fellow appellate attorney Pete Winebrake of Winebrake & Santillo to discuss In Re:, Inc., Fulfillment Center Fair Labor Standards Act and Wage and Hour Litigation (In Re: Amazon) in which SCOPA held that an employee's time spent on an employer's premises awaiting mandatory security screening constitutes compensable time for purposes of Pennsylvania's Minimum Wage Act, and that the maxim de minimum non curat lex, or, the law does not care for trivialities, does not apply to time worked for purposes of that Act.

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Please find a copy of the episode transcript below:

Intro  0:00  
The Supreme Court of Pennsylvania is the highest court in the Commonwealth and the oldest appellate court in the nation, an institution that shapes our practice our laws and our lives. This is a podcast by attorneys and for attorneys who argue before Pennsylvania's court of final appeal. Welcome to The Standard of Review by SCOPAblog.

Corrie Woods  0:26  
Hi, and welcome to The Standard of Review by SCOPAblog. I'm your host Corrie Woods, and today we'll be talking with Pete Winebrake of Winebrake and Santillo LLC. Pete recently won a major victory against quite literally the fourth biggest company in the world, Amazon, in the case of In Re: Inc, Fulfillment Center, Fair Labor Standards Act and Wage and Hour Litigation, let's just call it Amazon, in which the Court held that employees' time in post-shift security screenings constitutes time worked for purposes of Pennsylvania's minimum wage laws, and also rejected the idea that any amount of time worked under the law can be disregarded as a trifle. Pete's win has major implications for worker pay, not to mention Wage and Hour litigation in Pennsylvania. And his experience in the case, ironically, mirrors Amazon's slogan: Work Hard, Have Fun and Make History. Let's listen. 

Corrie Woods  1:22  
Our guest today is Pete Winebrake, Founder and Managing Partner of Winebrake and Santillo, LLC, located in Montgomery County. Pete has litigated hundreds of employment rights cases and recovered millions of dollars for clients in state and federal courts throughout the United States. In 2019, he testified before Congress on the subject of federal Wage and Hour law. Pete has a long career in both private practice and public service and devotes a substantial amount of his time to pro bono work as well. Pete, welcome to The Standard of Review.

Pete Winebrake  1:54  
Thanks very much. It's nice to be here.

Corrie Woods  1:56  
Pete, before we get into the the case itself, how did you decide to become an attorney? And how did you get into your practice area?

Pete Winebrake  2:04  
Well. That's a long, drawn out story but I decided to become a lawyer when I was in college, and I took a Introduction to Law course and went on to Temple University Law School and then did a clerkship and was involved in city government in both New York City and the city of Philadelphia. And I've always been a litigator primarily in the employment rights field. And when I worked in city government, I was primarily representing the defendant when the city of New York and the city of Philadelphia was sued. I was one of the lawyers that defended the cities, in those cases. I got introduced to class action litigation, probably about 20 years ago, and fell into the Fair Labor Standards Act- that something- as something that I was extremely interested in intellectually, but also philosophically as a progressive lawyer who believes in big government and a government that protects workers and that ensures that workers are paid fairly. The statute really spoke to me. And so I decided about 15 years ago to dedicate my practice, to wage and overtime rights entirely. And that's when I started my firm. And then Andy Santillo, joined the firm a year or so after that, and all that we really do is wage and overtime rights. So for me, this area of law is both fulfilling as a lawyer, but it's also- lines up well with my politics. And I think that's important for any lawyer, that they find a practice area that they not only care about intellectually, but they also care about sort of philosophically. So I've been fortunate in that way.

Corrie Woods  3:57  
Yeah, I think the phrase is doing well by doing good and it certainly applies in this area. Speaking of area, your practice seems to take you pretty far in terms of geographic area, you're admitted to the bar of numerous states and federal districts. How far have you- how far have you gone?

Pete Winebrake  4:16  
Well, we've had cases, I've had cases all over the country, Mississippi, Oklahoma, Nebraska, we've done cases all over. One of the things I always tell young lawyers, especially on the plaintiff side who are trying to build a class action practice is you have to be willing to travel. And you have to be willing to be inconvenienced in that way. I've spent many, many hours driving around the state of Pennsylvania, meeting with clients meeting with other lawyers and flying around the country. And that's just what you need. That's what I like to do. I know it's not for everyone, but I've traveled all over the country for these cases, but really the most satisfying aspect of my practice has really been traveling throughout the state of Pennsylvania. And I love to go into the towns in the small cities. I'm from the Scranton area. And I've been all over the state driving around- 1000s and 1000s of miles. So it's, it's nice. And I've just been kind of like the Johnny Cash song. You know, I've been everywhere, man.

Corrie Woods  5:28  
So we're here today to talk about In Re: Amazon, the actual name of the case is about 48 words long, but we'll just say In Re: Amazon, which has something of a winding history, how did it come in to your office? What were the facts as you knew them, then? And how did you decide on the allegations that you were going to make? 

Pete Winebrake  5:49  
Well, for about 10 years now, I've been very interested in trying to expand workers rights under the Pennsylvania Minimum Wage Act beyond the limitations of the Federal Fair Labor Standards Act. So as you may know, the federal wage and overtime laws called the Fair Labor Standards Act, enacted during the Depression era. And it's the law that gives workers the right to overtime pay and the right to a minimum wage. But that Act is really only meant to be a floor. And under con-, you know, under the under the statutory language, and really consistent with concepts of federalism, states are free to enact their own laws that are more expansive and more protective of workers than the Fair Labor Standards Act. For many years, there was just sort of an assumption that the PMWA, the Pennsylvania Minimum Wage Act would be read, sort of in conjunction with the Fair Labor Standards Act. And about 10 years ago, I started to challenge that concept, and three cases have worked their way up to the state Supreme Court, where the state Supreme Court has expressed an openness to the general concept that the PMWA needs to be interpreted independently of the FLSA. The first case is a case called Bayada Nurses. And in that case, the state Supreme Court said that, even though certain types of home health aides were not entitled to overtime under the federal Fair Labor Standards Act, they were entitled to overtime under the PMWA. And then about two years ago, in another case called Chevalier, the Supreme Court once again, addressed this basic issue, and held that the manner in which salaried employees entitled to overtime pay, the manner in which they're paid, is more generous than the manner in which overtime is calculated for salaried employees under the Fair Labor Standards Act. And I was involved in both of those cases. This case Heimbach, came to me, because I've always felt that the conception of hours worked under the state law could be interpreted more expansively than the federal law. So I was interested in that issue. And Mr. Heimbach was referred to me. And as I thought about it, I decided to file the case. Now, there had already been a lot of Fair Labor Standards Act litigation against Amazon, saying that mandatory security screenings are not, you know, the allegation was that Amazon's mandatory security screenings in their warehouses was compensable time under the Fair Labor Standards Act. I knew that those cases existed. However, I decided in Heimbach, to file a case that was strictly limited to the state law. And I filed that case in the Philadelphia Common Pleas Court, the case got removed by Amazon under the Class Action Fairness Act to the federal court for the Eastern District of Pennsylvania, and assigned to a judge out in Reading, Pennsylvania. All of the FLSA litigation challenging Amazon security screenings had been consolidated or coordinated, as they say, in the federal courthouse in Louisville, Kentucky, by the judicial panel on multi district litigation. My Heimbach case got transferred into all of those other cases.

Corrie Woods  9:45  
Just to interrupt for a second. Do you know why on earth this major national corporation- all the litigation about it is centered in Western Kentucky?

Pete Winebrake  9:52  
There were a bunch of Fair Labor Standards Act cases filed against Amazon alleging that time associated with this security screening process violates the FLSA. When similar cases get filed in different federal judicial districts, a party's allowed to go to the judicial panel on multi district litigation and request that all the cases get consolidated in a single forum. The judicial panel and multi district litigation meets around four times a year, it might be six times a year. And it's a panel of federal judges from throughout the country. I forget how many I think it's seven or nine or something like that. And they meet, and they hear all these petitions, where parties argue about whether or not cases should get coordinated in a single district. So I believe it was Amazon that filed a motion with the judicial panel on multi district litigation saying, "Hey, we're getting sued all over the country for our security screening practices under the FLSA. For efficiency sake, because these and because these cases are largely duplicative of each other, we want to be- we want all the cases to be coordinated and transferred to one judge." The panel agreed with that and sent all the cases to Louisville, Kentucky. Now, I- that was before I filed Heimbach. But anyway, once Heimbach got removed to the federal court in the Eastern District of Pennsylvania, it was then the question became, even though Heimbach only concerns claims of state law, should it still get shipped to Louisville, with all the federal law cases on grounds that it challenged the security screenings in the same way the federal cases did? And to tell you the truth, I don't remember whether I agreed to that, or whether I was forced to get transferred to Kentucky. But either way, my case ended up getting transferred from the Eastern District of Pennsylvania to the Western District of Kentucky, and coordinated with all the other cases.

Corrie Woods  12:11  
So could you talk a little bit about the sort of relative burdens that say a large corporate defendant has in going to Louisville versus a patchwork of numerous plaintiffs and their- their plaintiffs attorneys?

Pete Winebrake  12:25  
What generally happens, of course, the defendant is represented by one law firm, and it's very efficient for the defendant. On the plaintiff side, it's really interesting. Sometimes you don't want to see how the sausage is made, on the plaintiff side, you know, but when when all these cases get transferred to a single judicial district, all the plaintiffs lawyers have to sort of get together and see if they can agree upon some sort of leadership structure, whereby one or two or three firms kind of become the lead counsel, so to speak, and try to coordinate their efforts. Sometimes it works out sometimes it doesn't. Sometimes the judge has to decide which firm is going to play a leading role. In this case, the the plaintiff's counsel, I think, sort of just kind of agreed that we weren't going to have a lead counsel, but we'd all try to work together. Now remember, most of the cases concern claims under the Fair Labor Standards Act. So Heimbach was a little bit of a- little little odd in that it was a pure state law case. But you know, in the plaintiffs bar, many of us are friends, and we know each other, and we're able to work things out. So and that happened here. But whenever a lot of class actions get transferred to a single district, it does, it could create efficiencies for the plaintiff side, if the lawyers are able to make it so, but sometimes, it could actually be inefficient if the lawyers are very proprietary about their own individual case, and they're not willing to work together, sort of as a team. It's a complicated and messy situation. I don't know if I'm answering your question. 

Corrie Woods  14:13  
No, absolutely. 

Pete Winebrake  14:14  
It's always interesting when I talk to defense lawyers about these types of things, they really have no idea of how political and how much relationships matter on the plaintiff side, when you get into all of these kinds of situations. I do find that plaintiff's lawyers are generally more collaborative than defense lawyers who I think sometimes view each other as competitors, competing for clients, whereas plaintiff's lawyers, we generally do a pretty good job of getting along when we all have to work together.

Corrie Woods  14:45  
So what happens in Louisville? 

Pete Winebrake  14:47  
In Louisville- by the way, we haven't really said it yet. But what all of these cases challenges at Amazon's warehouses workers before they left for the day, were required to go through through mandatory security screenings to make sure they didn't steal anything. And what all of these cases that we've been discussing are about is whether time associated with those security screenings, which would include waiting in line going through the screening, etc. Whether it's compensable time under either the federal laws or the state laws. So we have all these cases. But the lead case that emerges is a case called Busk. And Busk, which- which I was not one of the lawyers in- Busk has Fair Labor Standards Act claims. And it also has claims under Arizona state law in Nevada state law. Anyway, Amazon moves for summary judgment, saying that under the FLSA, none of this time is compensable. And the reason that Amazon says that is because the FLSA was amended in 1947, with what's called the Portal-to-Portal Act Amendments. And what the Portal-to-Portal Act Amendments say, is that time that is preliminary and postliminary to a workers principal activities is not compensable. And the test that's emerged under FLSA jurisprudence is that if activities are integral and indispensable to the workers' primary activities, then they're not preliminary or postliminary, and they're compensable. But otherwise, they are preliminary or postliminary, and they're not compensable. So what the Court held in Busk is that under the Portal-to-Portal amendments to the FLSA, the time that workers spent in post-shift security screenings, was a postliminary activity that was not integral and indispensable to the actual work of being a warehouse worker, and therefore it wasn't compensable under the Fair Labor Standards Act. That opinion got appealed to the Sixth Circuit. And the Sixth Circuit, I think, affirmed. I can't remember if they affirmed or reversed, but anyway, the losing party at the Sixth Circuit appealed to the US Supreme Court, and the case went to the US Supreme Court. And at the US Supreme Court, in a case called Integrity Staffing vs. Busk, the US Supreme Court held that this time spent in post-shift security screenings was postliminary activities that was not integral and indispensable to the work of being an Amazon warehouse worker, and therefore, was not compensable under the FLSA. So with Integrity Staffing vs. Busk, all of the FLSA cases that had been transferred to the Western District of Kentucky, were now out of luck. And that eliminated almost all of the transferred cases.

Corrie Woods  18:13  
Well, just to touch base on another thing for a moment. That's not the only argument they made in I guess those cases, right? They also raised Anderson in this de minimis idea, right? 

Pete Winebrake  18:24  
Well, not yet, because we're now still talking about Fair Labor Standards Act. The de minimis argument was made, but it was never reached, it never had to be reached. Because when the Supreme Court held that the time simply was non compensable, we never had to get to the issue of whether it was de minimis or not. But the de minimis concepts were still hanging out there. 

Corrie Woods  18:49  
So you're back in Louisville, and there's a lot less plaintiffs on the team.

Pete Winebrake  18:53  
Yes. So I'm just sitting back watching all this happen. And this takes years, of course, and all the FLSA cases go by the wayside. So now we're left in Kentucky with my case, which has a claim under Pennsylvania law, there was the Busk case, which remember, had claims had those supplemental claims under Nevada and Arizona law, and there was a case called Vance, which had a claim under Kentucky law. There were a couple of cases that had claims under California law. I think that was it. So in the wake of Integrity Staffing vs. Busk, that's what was left in the Western District of Kentucky. By the way, the reason that the Supreme Court decision is called Integrity Staffing vs. Busk is because Integrity Staffing was a staffing agency that Amazon used at that particular warehouse, and so Integrity Staffing was a co-defendant, along with Amazon. So anyway, now the judge has to decide if he's going to apply the Fair Labor Standards Act principles to these different state laws. And what the judge does in every case, is he grants summary judgment in favor of Amazon in every case. And what he basically says is, "I find that all of these state statutes, even though they don't say anything about the Portal-to-Portal Act, and even though they were not amended in the way that the Fair Labor Standards Act was to include Portal-to-Portal language, I basically find that I'm going to read into that legislative silence the Portal-to-Portal Act principles. That's generally the ruling he makes in every case.

Corrie Woods  20:53  
You don't have to say this, but I think I can. If I'm a federal judge sitting in Kentucky, presumably familiar with Kentucky and federal law, I'm a little less inclined to apply, you know, Pennsylvania, Arizona, Nevada, Kentucky, California law, than may be the judges in those states.

Pete Winebrake  21:10  
Yeah. But you have to also remember that the Kentucky federal judge. In a lot of the southern states, especially, it really is the case that the state statutes are interpreted in a way that's identical to the Fair Labor Standards Act. Some of these states don't even have state wage and hour laws. But those that do, you know, it's not that uncommon. So this concept of state wage and hour laws being interpreted in a in a fashion that's more expansive than the FLSA- it's a relatively new concept. It's really picked up steam in the last 10 years. So I think that I hear what you're saying about the federal judge in Kentucky. But I think that he probably also felt like yeah, this is sort of a default position in these kinds of situations. So now, all of the individual state cases start to go up to the Sixth Circuit on appeal. The first one is Vance, which involved Kentucky state law. And the Sixth Circuit affirmed the District Court. The Sixth Circuit said, "Kentucky law is silent as to this Portal-to-Portal stuff. But we're going to read the Portal-to-Portal restriction into Kentucky state law." The next case that gets up to the Sixth Circuit has a different panel. And that's the Busk case. That's the Nevada and Arizona claims in the Busk case. And a different panel of the Sixth Circuit rules differently. This different panel says, we find that both Arizona and Nevada, the Arizona and Nevada legislature's silence regarding Portal-to-Portal principles means that those legislatures did not intend for Portal restrictions to apply to the state laws. If they wanted to do that, they could have just wrote in the Portal-to-Portal stuff into their state laws. And they didn't do that. And we're not going to assume that their silence demonstrates that- a willingness to incorporate the Portal principles. We think that if they wanted to incorporate Portal principles they would have explicitly said so. So the District Court gets reversed as to Arizona and Nevada law. There's the California cases. And those cases, the Sixth Circuit stays because similar issues were percolating at the California State Supreme Court. And the Sixth Circuit wanted to wait to see how the California State Supreme Court ruled on these types of issues. It would turn out that the California Supreme Court would say Portal-to-Portal principles do not apply. Anyway, Heimbach, my case, gets up to the Sixth Circuit. And I didn't want the Sixth Circuit deciding this issue, because I had come to the conclusion that it's just totally unpredictable. And I would always prefer to have Pennsylvania judges deciding these types of issues. I filed a motion asking the Sixth Circuit Court of Appeals to certify the question to the Pennsylvania Supreme Court. I actually asked the Sixth Circuit to certify two questions. The first question was, "Do the Portal-to-Portal restrictions that are incorporated into the FLSA apply to Pennsylvania law?" The second question I asked certification on is "Whether the de minimis doctrine exists under Pennsylvania state law?" The de minimis doctrine, by the way, is a doctrine that says well, even if time is compensable, if it's de minimis, if it's such a small amount of time, and it's really difficult to record, then employers don't have to pay for it. So don't- let's not worry about it.

Corrie Woods  25:12  
Which, you know, and we can get into this a little bit later. But if it's such a trifle, then why not just pay for it? Why are we all here? 

Pete Winebrake  25:22  
That that was our argument, which I think the Supreme Court never, our state Supreme Court didn't ultimately say that, but I think underlying the opinion was that notion exactly, which is, if it's such a small amount of time, then just pay him. It's funny, you know, I've been living with this case for many years, and I've talked to many non lawyers about it. And it's interesting, the reaction that you get. About half of the people you talk to will say what you just said, if it's such a small amount of time, why doesn't the company just pay for it? The other half will say, if it's such a small amount of time, why do the workers really care? And it's interesting, it really goes to people's attitudes, you know, they're, I don't know, if conservativism, or liberalism is the right word. But it's interesting to me how different people respond to that issue, knowing nothing about the law, just their gut reaction. It says a lot about that person's outlook and political outlook when it comes to workers rights and stuff like that.

Corrie Woods  26:33  
Well, I think the other issue is this even de minimis you know, I'm just pulling from the opinion, and this is about 8 to 10 minutes a day, let's say I work five days a week for 50 weeks a year. We're into the neighborhood of dozens of hours. It's hard to say that dozens of hours a year is of no consequence, but maybe my- my own FDR style, labor views are showing. So- So anyway, so the matter is, the Sixth Circuit applies for certification to the Supreme Court of Pennsylvania, the Supreme Court accepts that. Ostensibly then you and the folks for Amazon brief it. Was this a case that proceeded to oral argument, or was this submitted on the briefs?

Pete Winebrake  27:19  
Yes, it went to oral argument. The Pennsylvania Supreme Court accepted the questions as posed by the Sixth Circuit. You know, one of the one of the frustrating things is, as often happens, at the appellate courts, we moved to certify the questions and Amazon vigorously opposed that, and everything was fully briefed. And then the Sixth Circuit issued an opinion saying, "Yeah, this is a pretty tough issue, whether we should certify these questions. We think that we're gonna hold off on deciding whether to certify the questions until we see the party's merits briefs." So then we had to brief the merits at the Sixth Circuit, which was a lot of work. And then after all that was submitted, the Sixth Circuit decided, "You know what, we will certify the questions." So that took a long time. But anyway, we got to the Pennsylvania Supreme Court and we briefed everything again. And they- the Court did hear oral argument by I don't know what if it was Zoom, but it was by a remote oral argument, and then issued its decision.

Corrie Woods  28:31  
Did you find the virtual oral argument to be more or less difficult? Or what were the differences you saw on that versus, you know, times you had had done in person oral argument?

Pete Winebrake  28:43  
Yeah, I did not like it personally. It was difficult. It's just, you know, so much of this business is about body language. And it's just very difficult to connect, I think, and to read the room, so to speak, when it's being done by video. I think it's difficult for the Justices to read each other's body language. And it's just not a good situation. The one thing I would- the one word of advice I would give to anybody listening who might have an argument coming up that's going to be done remotely, is the mistake that I made. And I didn't do a very good job of making sure that my setup was perfect. And my audio was perfect. And the background and I really should have done a better job, I think of preparing for the technological aspect of doing the argument. And I really regretted that. Now, my adversary, a lawyer from the Morgan Lewis firm who specializes in appeals, had a excellent setup, had obviously done this many times. And really, really had his act together. And I did not. Just a word of advice, you know, take some time and really get yourself set up well and test everything out beforehand and be ready in that regard. So that was a little bit of a distraction. I don't think my audio was as clear as it could have been. And that that was weighing on my mind as I was arguing. So don't let that happen.

Corrie Woods  30:25  
Yeah, and just for folks who might be concerned about that, it's my understanding that the Superior Court, at least, I'm not sure about the Supreme Court, but they will have you log in at something like some ungodly hour of like seven o'clock in the morning to do a spot check on those things. I don't know if that's something that was adopted later in COVID. But I would encourage folks to definitely take advantage of that if they can, because you never know what's going to show up. I mean, the video of the attorney who showed up to court with a filter of himself as a cat, probably the biggest example of it, but definitely something that can be helpful to you.

Pete Winebrake  31:10  
One interesting thing that I think some lawyers don't really realize is, when you're arguing by video, you could have all kinds of aids out of vision of the camera. So you could have a poster board outlining some arguments that you might want to make. If you want to even read an argument, like me, you know, some lawyers like to read maybe their first couple minutes of an argument, you could actually have it written on a poster board, so that you're looking straight ahead at the camera while you read. So there's there's some things that if you're smart about it, you could do that are actually pretty interesting and can make your presentation better than it would be if you were doing it live.

Corrie Woods  31:59  
Yeah, that's like logging in for your collegiate English exam and you've got the- you've got the study guide behind the camera. So in any event, there is oral argument, and the Court takes the case under consideration. How long was the delay between submission and getting the opinion, if you remember?

Pete Winebrake  32:21  
I'm gonna say maybe nine months, eight months, something like that.

Corrie Woods  32:25  
That's pretty quick. 

Pete Winebrake  32:26  
Yeah, I thought so.

Corrie Woods  32:28  
So essentially, technological issues notwithstanding, you get kind of a home run from the Court.

Pete Winebrake  32:34  
Yes. So on the de minimis rule. We argued de minimis rule should not exist. We made the argument, essentially the same thing that you said earlier, Corrie, which is, if when time is de minimis, why should the employee suffer? If somebody has to suffer for de minimis time, given that the Pennsylvania Minimum Wage Act is a remedial statute that's meant to benefit workers, and that remedial statute should always be interpreted liberally, right? In favor of workers? Then, if time really is de minimis, why should the employee suffer? Should be the employer who suffers. So we argue, and the Court held that the de minimis rule simply doesn't exist under the PMWA. But we made a lot of alternative arguments too, where we said, assuming that the de minimis rule should exist, there should be substantial limitations placed on it. So for example, even if time is very short, if it can, if it can easily be captured and recorded, then it should be paid. We also argued that, even if time is very short, on a daily or even weekly basis, if it's not de minimis in the aggregate, it should be paid. And thirdly, we argued, the de minimis rule should not apply to class actions, because the whole point of class actions is to enable workers to- or consumers- to to aggregate small claims. So anyway, we made all those arguments. The court never got to our alternative arguments because it held that the de minimis rule simply has no place in the law, at least with respect to wage and hour law.

Corrie Woods  34:32  
Yep. And so the - I hate to read too much, but the text of the case says this is sort of the the big quote on the de minimis issue: "When the text of the PMWA is read consistent with its legislatively articulated purpose, which we have discussed at length above to maintain the economic well being of our Commonwealth's workforce by ensuring that each and every Pennsylvania worker is paid for all time. He or she is required to expand by an employer for its own purposes. We discerned no intent to allow a de minimis exception to the PMWA's irreducible requirements." And the big sentence is, "The PMWA plainly and unambiguously requires that payment for all hours worked signifying the legislature's intent that any portion of the hours worked by an employee does not constitute a mere trifle." 

Pete Winebrake  35:28  
Right. The point that I tried to convey on this issue is the concept that all work is valuable. And it's tied up in notions of the dignity of work. And I think that that played a big role in the decision. Concepts of Catholic social justice, that all work has dignity, that that work can't be considered a trifle. Those- those philosophical points and notions, I think, underlie the Court's opinion. They underlie my philosophy and why I'm in this business, and why many of my peers are in this business and all of the workers rights lawyers who work at public interest organizations. And I think that going back to some stuff we were talking about at the beginning of the interview, I think that it shows how, when you try to make arguments that you really believe in, philosophically, I think that that comes through. And I think that that's what was happening here. I'm not saying I should get credit for this decision, because the justices obviously felt strongly about this. And maybe they would have come to that conclusion no matter who the lawyer was. But I certainly in drafting the brief, I very openly discussed the dignity of work, and tried to position this de minimis issue as sort of an up-or-down vote on the dignity of work. And if one believes that all work is valuable, and no work is trivial, that that means that this rule has no place in the law. And so it was gratifying to me to see the Supreme Court issue its ruling. I think sometimes judges overthink things and make life too complicated. I think part of what was going on was the court saying, "If we were to allow a de minimis rule and then put all these subsidiary rules as to when it does or does not apply, it almost makes everything so complicated, that it's it's not worth it." I think there's some appeal to just the simplicity of saying there is no de minimis rule. So we don't have to worry about defining it. We don't have to worry about does it apply when time gets aggregated? Or does it apply to class actions? Or- does you know how much time is de minimis? One of the mistakes I think that if- I won't blame Amazon- but Amazon's amici, I forget the organization. It was there were a whole bunch of organizations that submitted an amicus brief. And in the de minimis section of that amicus brief, the lawyers for these corporate interests had a big section where they talked about all of these cases, where different amounts of time and different activities were found to be de minimis. And they said to the Court, "if you don't allow the de minimis rule, all the kinds of stuff that was found to be de minimis in these cases would have had to be paid under Pennsylvania law." But when you actually looked at the examples, there were examples where most people would read them and say, "Yeah, I think the workers should have gotten paid." So for example, I think one of the examples was cops, who had dogs in their cars, having to clean out the cars after the end of every shift. And it was like, yeah, well, yeah, they should get paid for that. I thought it was a good example of how sometimes some of these interest groups that think that they're helping, by filing an amicus brief actually hurt the cause if they're sort of out of touch with the Court.

Corrie Woods  39:32  
Yeah. I mean, not just the fact that they're now making very emotionally available to the Court, the kinds of people who are going to be sort of waylaid and the actual work that's going to be waylaid if they allow de minimis, but they're also putting a string cite together that if you add up all the hours and the time and the money sure seems like a lot of time and money.

Pete Winebrake  39:53  
Yeah, I mean, in fact, one of the examples- there were a line of federal cases mostly coming out of the Eighth Circuit that had kind of established this rule that said anything under 10 minutes a day is de minimis or is presumed to be de minimis. And that amici made a big deal out of that. And I was like, when I wrote my reply brief, I was like, this is great. I mean, 10 minutes is a lot of time. And I believe that the Justices of the Pennsylvania Supreme Court will agree. So I took that and I ran with it. And I was like, you know, the Chamber's amicus brief is really demonstrating how dangerous this de minimis doctrine is. They're citing to cases where workers who worked up to 10 minutes a day unpaid, just shouldn't be paid for the time under the de minimis rule. That doesn't reflect the values underlying the Pennsylvania Minimum Wage Act. That might reflect the values underlying some of these judicial decisions from the Eighth Circuit Court of Appeals, but it doesn't reflect our values here in Pennsylvania. So we really ran with that. It was like a gift that was given to me. You know how hard it can be to write reply briefs every now and then you just get a gift, and you just jump on it. And that's what I was able to do.

Corrie Woods  41:17  
I try to avoid doing too much math because I went to law school, but just back of the envelope- 10 minutes a day, five days a week, 50 weeks a year, turns out to about 41 hours. So an extra week of work. Hey, that's de minimis.

Pete Winebrake  41:33  
Yes. And you know that, as the Court noted in a footnote, in our case, the time adds up to 100s of 1000s of hours. When you aggregate it for all of the workers during the entire statutory period, it really adds up to a lot of time. So the de minimis stuff was really gratifying. As far as I know, there's now- Pennsylvania has now joined California, as the two courts that have pretty much rejected the de minimis rule. But I do expect that more state supreme courts are going to start rejecting the de minimis rule now that they have two respected Supreme Courts so holding.

Corrie Woods  42:17  
I do just want to touch very briefly on other issue, which is, "Hey, are we just gonna imply the Portal-to-Portal Act into Pennsylvania law, despite the fact that there's actually an interpretive regulation that says, kind of the opposite of the Portal-to-Portal law?"

Pete Winebrake  42:33  
Yeah, I mean, I've lectured on this to other Wage and Hour lawyers. To me, what this issue comes down to is how does one deal with legislative silence? When- when a state statute is silent as to a particular topic, and a parallel federal statute addresses that same topic, there's two ways a court can go. One is to say, if the state legislature wanted to incorporate the federal principles into the state law, it's easy to do that you just copy the federal law into the state statute. The other school of thought is, well, when the when a state legislature enacts a law that mirrors a federal law, they're really saying that subsequent amendments to the federal law are just automatically sort of incorporated into the state law. And that's the tension. And what all this and what so many have, not just this particular Portal-to-Portal issue but we're seeing it across the board, as we try to expand the parameters of state wage and hour law around the country to go beyond the FLSA. The recurring theme is, how do we deal with legislative silence? And so the tack that we took was we said, "Well, look, there's a whole bunch of amendments to the federal law that were in fact, incorporated into the state law. So that means that the state legislature knows how to do it and feels it's necessary to keep the state law up to date with the federal law." I think that that was an effective argument, but that that legislative silence issue is something that underlies a lot of these cases. And then the other thing that underlies this stuff is what I call the new federalism, which is, you know, traditionally, federalism and proponents of federalism have been politically conservative. So in defying federal civil rights legislation, state legislatures, especially in the south, would rely upon notions of federalism and say, Hey, we're we're allowed to make our own laws down here. We're allowed to enact state laws. Federalism, which says that states have a right- have autonomy and a right to conduct their own affairs as they see fit goes hand in hand with those types of arguments. What we're seeing now, especially during the Trump administration and the Bush administration, as the federal government is rolling back protections under federal law regulation, we're now seeing liberals like myself, try to use notions of federalism to say to their state courts, Hey, you don't have to follow all this federal stuff. We here in Pennsylvania can can chart our own course, under notions of federalism. So one of the interesting things I I see in this movement to expand workers, state workers rights laws, beyond the federal laws is liberals trying to use concepts of federalism, to expand to- in a way that expands workers rights, expands consumer rights, and makes the law more what one would normally consider more progressive. And I don't think those who were espousing concepts of federalism 50 years ago necessarily anticipated that federalism could be a tool of progressive lawyers, but that's what's happening. And it's not just in the labor and employment arena, it's happening in the consumer- consumer rights arena too. This idea, places like New York, Pennsylvania, the New England states, of course, California, hey, when you have liberal judges and liberal state legislatures, federalism is your friend. And so we're starting to embrace that.

Corrie Woods  46:54  
Yeah. And this Court has definitely been one that over the last five or six years has been inclined to distinguish Pennsylvania from its federal counterparts. One thing that I think I've seen in about 14 different constitutional decisions is, you know, Pennsylvania's constitution existed before the United States Constitution. And so it's the inspiration, not the other way around, guys. And from that, we get a lot of opinions about everything from Criminal Procedure rights, to, for example, the 2018 gerrymandering case, where Pennsylvania was willing to sort of step up to the bat and take that swing. Whereas the US Supreme Court thought, we're not, we're not, we're not doing this. So interestingly, you know, on that legislative silence issue, you know, maybe this is confessional to some degree, but I have always been of the view that interpreting legislative silence is kind of often a fool's game, right? Because it's, it's what Sherlock Holmes book says, you know, you're searching around for the meaning of the dog that didn't bark. And this is a great example of that, right? Because there's about 15 different ways you can interpret the legislature who, you know, let's let's keep in mind does not act with one body and really only speaks through affirmative act. There's about 15 different ways to interpret what they've said. But for me, at least, it's always been well, if you want to change the words, you have to use your words. 

Pete Winebrake  48:34  
And I think that in in reading the Court's Pennsylvania Minimum Wage Act jurisprudence, what I see, and I've seen it in- I'm not as schooled in the Supreme Court, the state Supreme Court's general jurisprudence in the same way that you are, but I see a Court that's very, that's very much influenced by the public policy underlying these statutes, and- and reading the statutory language in a way that furthers the public policy behind the laws. And I just see that I see that in the Bayada Nurses decision, the Chevalier decision and the Heimbach decision, but I think that you probably would see it in in other arenas too. And I think the- I think for practitioners, what it really means is you do have to spend some time in your briefs, talking about public policy talking about why were these laws passed to begin with. And it pays off when you do that because it's- it's when the- when the court turns to the regulatory text or the statutory text, it seems very inclined to interpret the words in the context of that public policy.

Corrie Woods  50:11  
Where's the case going now? Are you headed back to Louisville?

Pete Winebrake  50:14  
After a state Supreme Court answers a question certified by a federal appellate court, the case goes back to the federal appellate court. And then the federal appellate court actually has to decide whether it's going to follow the answer that the state Supreme Court has given. So in this case, the Sixth Circuit did recently say, in light of this Pennsylvania Supreme Court's decision, we are vacating the District Court's summary judgment ruling, and remanding. And then, more recently, the case got formally sent back to the judge in Louisville. And because so much time has passed, since the discovery deadline, we have to now reopen discovery and get evidence about what's been going on with respect to the security screenings in the Breiningsville warehouse for the last, you know, five or six years. And all that discovery has to be taken and we'll see where this all goes. So we're back in Louisville, at some point, when cases get transferred by the judicial panel on multi district litigation, they are supposed to eventually make their way back to their home jurisdictions, for trial when and if I decide to petition the Louisville judge to ship this back. That's a complicated process. I don't know whether I'm going to do that or when I'm going to do it. But theoretically, that's a possibility too.

Corrie Woods  51:53  
So someday, you may end up back in Philadelphia, federal or common pleas court. Until then, enjoy the jazz and the barbecue of West 'Tuckey.

Pete Winebrake  52:02  
Yeah, well, thank you. And my son moved to Louisville, Kentucky in the meantime. So that's good.

Corrie Woods  52:08  
Oh, wow. That's great. So Pete, thank you so much for joining us today on The Standard of Review.

Pete Winebrake  52:15  
Okay, thank you.

Corrie Woods  52:18  
That's all for this episode of The Standard of Review. If you like what you've heard, and you want to hear more, you can subscribe for new episodes in your pod catcher of choice. If you'd like to reach out with a topic or a guest for a new episode, you can find us on the web at or just search for Woods Law Offices on Facebook, Twitter, or LinkedIn. Thanks so much for listening, and we'll see you next time on The Standard of Review.

Outro  52:43  
Thanks for listening to The Standard of Review by SCOPAblog. This episode has been brought to you by Woods Law Offices, Raising the Bar for Pennsylvania Appeals. Check them out at

About the Author

Ashley Woods

Ashley is our managing attorney, and focuses her practice primarily in business, estate planning, and property law. Ashley is also the President of Larkspur Land Group LLC and Larkspur Oil & Gas Land Services LLC, which provide abstracting, leasing, and curative land services to energy companies ...


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