January 22, 2021 - This Week at the Ninth

This Week in the Ninth: Rest Breaks and Workweeks

This week, we take a look at two Ninth Circuit decisions considering agencies’ interpretations of the federal laws governing the employment relationship.  In the first, the Court deferred to the Federal Motor Carrier Safety Administration’s decision to preempt California’s requirements for commercial drivers’ meal and rest breaks.  In the second, a divided panel rejected the Department of Labor’s interpretation of the Family and Medical Leave Act that would have afforded employees who work alternating weeks a right to take additional leave.

INTL BROTHERHOOD OF TEAMSTERS v. FMCSA
The Court holds that the Federal Motor Carrier Safety Administration permissibly preempted California’s rules governing meal and rest breaks for certain commercial drivers. 

Panel: Judges Nguyen, Hurwitz, and Bress, with Judge Bress writing the opinion. 

Key Highlight: “Because the agency’s decision reflects a permissible interpretation of the Motor Carrier Safety Act of 1984 and is not arbitrary or capricious, we deny the petitions for review.”

Background: California and the federal government both require employers to give commercial drivers meal and rest breaks.  The California rules generally require more breaks than the federal ones (though that was the subject of some dispute in the case).  But the federal government—specifically, the Federal Motor Carrier Safety Administration (FMCSA)—has statutory authority to prohibit a State from enforcing its law if the agency makes certain findings.  49 U.S.C. § 31141(a).

Employers have petitioned the FMCSA several times to preempt California’s meal-and-rest-break rules.  In 2008, the agency declined, finding the statutory prerequisites were not met.  In 2018, the agency changed course.  It declared California’s rules preempted as applied to certain commercial drivers:  namely, operators of property-carrying motor vehicles subject to federal hours-of-service regulations.  California, labor organizations, and some individuals filed petitions for review, challenging the agency’s preemption determination under the Administrative Procedure Act (APA). 

Result: The Ninth Circuit denied the petitions for review.  The Court held that each step of the agency’s analysis was consistent with the requirements of the APA. 

First was a question of statutory interpretation: Are the California meal-and-rest-break rules laws “on commercial motor vehicle safety,” as required for the FMCSA to exercise its preemption authority?  The agency answered yes, and the Court deferred to that conclusion under Chevron.  As a threshold matter, the petitioners had argued that Chevron deference is inapplicable, both because the agency was addressing preemption of state law and because the agency reversed its position from 2008.  The Court held that neither was a basis for rejecting deference.  The Court then concluded that even assuming the petitioners had identified any ambiguity in the statute, the government’s reading was reasonable at Chevron step two.  Petitioners stressed that California’s meal-and-rest-break rules govern more than just commercial vehicle safety; they extend beyond commercial vehicles to other industries, and beyond safety to employee health and working conditions.  But the Court deferred to the government’s reasoning that those rules, as applied here, are “on commercial motor vehicle safety” because they are within the FMCSA’s regulatory domain and overlap with federal regulation in the same area. 

Next, the Court reviewed the agency’s determination that the California rules are “additional to or more stringent than” the federal regulations—a statutory condition for preemption that the FMCSA invoked.  The petitioners challenged that determination as arbitrary and capricious.  But the Court considered the differences between the California and federal rules and concluded that the agency’s determination was reasonable.

Finally, the agency cleared one last hurdle: The statute permits preemption only if the agency finds that (1) the state law “has no safety benefit,” (2) the state law “is incompatible with the regulation prescribed by the Secretary,” or (3) “enforcement of the State law or regulation would cause an unreasonable burden on interstate commerce.”  The agency found the California rules meet all three criteria, and the petitioners challenged each finding as arbitrary and capricious.  The Court resolved the case on the third criterion alone, holding that the agency reasonably found that the rules resulted in cost, inefficiency, and administrative burden amounting to an unreasonable burden on interstate commerce. 

SCALIA v. ALASKA
The Court holds that the term “workweek,” as used in Family and Medical Leave Act, refers to any calendar week, not simply those weeks in which an employee would be scheduled to work. 

The panel: Judges Christen, Watford, and Bade, with Judge Watford writing for the majority and Judge Christen dissenting.

Key highlight: “If all employees receive a maximum of 12 consecutive weeks of continuous FMLA leave, the balance struck by Congress remains intact: Employees receive the time they need to bond with a new son or daughter, while employers experience relatively limited disruptions. But if rotational employees are entitled to 24 consecutive weeks of continuous FMLA leave, as the Secretary contends, the compromise Congress enacted falls apart. Employees with a ‘one week on, one week off’ schedule would receive the very benefit that Congress declined to provide: six months to bond with a new son or daughter. And the burden imposed on employers, particularly with respect to cost, would increase significantly.” 

Background: Some employees of the Alaska Marine Highway System work a “rotational” schedule: they work for seven consecutive days (for a total of 80 hours), and then have seven consecutive days off.  The Family and Medical Leave Act of 1993 (FMLA) guarantees eligible employees “a total of 12 workweeks of leave during any 12-month period.”  29 U.S.C. § 2612(a)(1).  Alaska required “rotational” employees who take FMLA leave on a “continuous” basis to return to work 12 weeks after they left.

In response, the Secretary of Labor brought suit, contending that these employees were instead entitled to return to work 24 weeks later.  The district court agreed, holding that the FMLA’s use of the term “workweek” means “time that an employee is actually required to be at work.”

Result: A divided Ninth Circuit panel reversed.  The majority began by explaining that while Congress had not defined the term “workweek” in the FMLA, Congress had previously used that term in a Fair Labor Standards Act (FLSA) provision governing overtime compensation.  In that context, the Department of Labor had interpreted the term to mean “a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods.”  The majority concluded that Congress would have intended to adopt this same definition in the FMLA.  The majority further emphasized that, in the parallel FMLA provisions governing civil service employees, Congress had used the term “administrative workweek,” which had the same well-established meaning, and contrasted with the term “regularly scheduled administrative workweek,” which was understood to refer to weeks in which a given employee was scheduled to work.  And, the majority concluded, that understanding was consistent with the purpose of the 12-week limit Congress had adopted, which was intended to balance the need for employees to take time off with the burdens imposed on employers.  Were certain employees able to effectively receive more than that 12-week period away from work, the majority reasoned, the balance struck by Congress would be upended and there would be “a seemingly unjustified disparity in treatment between traditional and rotational employees.”

The majority also declined to defer to the Secretary’s contrary interpretation.  As it explained, the Secretary had not promulgated any regulations defining “workweek,” so Chevron was unavailable.  Applying Skidmore deference, the majority concluded that none of the Secretary’s arguments justified the agency’s reading.  The majority reasoned that dictionary definitions of “workweek” did not support the Secretary’s contentions, nor did an FMLA regulation and its accompanying preamble, governing the circumstances where an employer’s operations have ceased.  Finally, the majority also rejected the Secretary’s reliance on a pair of opinion letters explaining how to calculate the amount of FMLA leave an employee has available when that leave is taken non-continuously.  As the majority explained, “[w]hile an employee’s own work schedule is relevant when calculating intermittent leave taken in less than full-week increments, it has little bearing in the continuous leave context.”

 Judge Christen dissented.  She diverged with the majority on four key points.  First, she emphasized the common understanding of the term “workweek,” asserting that while “[a] week is any seven-day period,” a “workweek is a seven-day period during which work occurs.”  Second, Judge Christen contended that the text of the FMLA—including its use of the word “leave,” which implies a time one would otherwise be working, and its provisions governing intermittent leave—supported this understanding.  Third, Judge Christen would have granted deference to the Secretary under Skidmore, given the Department of Labor’s thorough consideration of the issues, the consistency of its interpretation, and the persuasiveness of its reasoning.  Fourth, Judge Christen disagreed with the majority that the FMLA had necessarily incorporated the understanding of “workweek” established under the FLSA, which she did not believe was consistent with the majority’s interpretation in any event.