Important issues of federalism and administrative law almost always boil down to one simple yet fundamental question: Who decides? The Arizona Supreme Court’s opinion in Roberts v. State of Arizona proved no exception. There, the court had to clarify how the intertwined relationship of state and federal law applied to an overtime-compensation dispute. Yet, far from being a routine case of statutory interpretation, the case also teed up a b­edrock question of constitutional structure: Is the power to define compensable “work” a policy prerogative that an agency can take for itself?

The underlying facts of Roberts are straightforward. The Arizona Department of Corrections, Rehabilitation & Reentry denied overtime compensation to a class of corrections officers who were forced to go through multiple security screenings before entering prison facilities. The officers alleged that these mandatory screenings added about thirty minutes of unpaid time to their shift. Their resulting lawsuit hinged on the interpretation of A.R.S. § 23-392(A), an Arizona law requiring overtime compensation for “[a]ny person engaged in law enforcement activities” beyond forty hours a week “if by the person’s job classification overtime compensation is mandated by federal law.”[1]

According to the state, this language essentially incorporated the entirety of federal law governing overtime compensation. That includes the Federal Labor Standards Act, as amended by the Portal-to-Portal Act, along with all the federal regulations implementing those laws. On this reading, the state argued, the corrections officers were not entitled to overtime compensation because federal law precludes time spent doing “preliminary” activities—language that arguably covered pre-shift security screenings.[2]

But a unanimous Arizona Supreme Court, in an opinion by Justice Clint Bolick, rejected this argument.[3] “That is a great deal of freight to load upon such a tiny statutory vessel,” the court observed. What the reference to federal law in § 23-392(A) actually does, the court explained, is incorporate “the slice of federal law” found in 29 U.S.C § 207(k), which merely “addresses job classifications for which overtime compensation is mandated under the FLSA.”[4] Thus, the court concluded, the threshold question whether the corrections officers’ pre-shift security screenings qualify as “work” is a matter of state law, not federal.[5]

Crucial to the court’s holding here were “seminal” principles of statutory interpretation.[6] It would not “inflate, expand, stretch or extend a statute to matters not falling within its expressed provisions.”[7] Nor would it “lightly divine legislative intent to displace state law with sweeping and prescriptive federal statutory law and administrative regulations.”[8] “In our system of federalism,” the court stressed, “we do not start with federal law and apply it unless the legislature manifests a contrary intent; rather, we presume that state law prevails unless we find a manifest intent to adopt federal law.”[9] And that state-law presumption prevailed here.

The importance of the court’s opinion, however, did not stop at its application of federalism-flavored principles of interpretation to a complex statutory scheme. There was also a weighty constitutional issue that followed close behind. It arose from the Arizona Department of Administration’s rules that purported to incorporate all the federal law that the court just determined did not apply through § 23-392(A). The question, then, was this: If the Arizona Legislature did not incorporate federal overtime law through legislation, can the Department of Administration do it through regulation?

Answer: No. “Absent explicit authorization by the legislature,” the court said, the Department cannot. Without the legislature’s textual blessing, a Department rule to that effect would, in the court’s view, “violate our constitution’s separation of powers.”[10] Finding “no express delegation of power” in § 23-392, the court thought it “highly unlikely that the legislature would choose to bestow sweeping regulatory authority upon an agency in such an oblique and indirect fashion.”[11] For this holding, the court found support in the U.S. Supreme Court’s recent decision in West Virginia v. EPA,[12] reasoning that “[t]he decision to incorporate the Portal Act into Arizona law for law enforcement officers—thereby determining whether time spent on certain activities is compensable—is the very definition of the type of major policy question that the legislature alone may determine.”[13]

Unlike the U.S. Constitution, the Arizona Constitution makes the separation of powers explicit.[14] The court found that compelling: “Our constitution’s framers devoted an entire article to separation of power,” so any “excursion by an administrative body beyond the legislative guidelines is treated as a usurpation of constitutional powers vested only in the major branch of government.”[15] Applied here, the Department usurped the legislature’s prerogative by taking for itself the power to define “work” for purposes of overtime compensation.

The court later summed up its holdings in one sentence: “All we decide today is that the definition of work is a matter of state law, that § 23-392 does not incorporate the Portal Act for law enforcement officers, and that [the Arizona Department of Administration] is not authorized to do so.”[16] The simplicity with which the court described its holding, however, belies its significance. Going forward, Arizona agencies are on notice that, when it comes to pivotal policy questions, they’ll need to comport themselves with the court’s hearty understanding of the separation of powers.

* * *

“Big things come in small packages” is a worn-out idiom. But it seems to have special force in administrative law. It can repackage a dispute about overtime compensation for pre-shift security screenings into one about constitutional limitations on administrative power. Who decides whether the corrections officers’ time in security checkpoints qualifies as work? Who is constitutionally charged with deciding the major policy questions of the day? To answer the second question, the court suggests, is to answer the first.

[1] Roberts v. State, No. CV-21-0077-PR, 2022 WL 2560002, at *3 (Ariz. July 8, 2022).

[2] Id. at *4 (quoting 29 U.S.C. § 254(a)(2)). The court noted, however, that “[f]ederal and state courts applying the Portal Act to security screenings have reached different conclusions concerning whether the screenings are ‘integral and indispensable’ to jobs covered by the act.” Id. (citations omitted).

[3] Chief Justice Brutinel was recused from this case. Justice John Pelander (Ret.) sat in his place.

[4] Roberts, 2022 WL 2560002, at *5.

[5] Id. at *4; see Prendergast v. City of Tempe, 143 Ariz. 14, 20–21 (App. 1984) (observing that § 23-392(A) did not define “work” and that the FLSA “is irrelevant where the issue is the proper definition of work time”).

[6] Roberts, 2022 WL 2560002, at *4.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at *12.

[11] Id. at *13.

[12] 597 U.S. __ (2022), No. 20-1530, slip op. at 18 (“Extraordinary grants of regulatory authority are rarely accomplished through modest words, vague terms, or subtle devices.”) (internal quotations omitted).

[13] Roberts, 2022 WL 2560002, at *14.

[14] Ariz. Const. art. III, (“The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and . . . no one of such departments shall exercise the powers properly belonging to either of the others.”).

[15] Roberts, 2022 WL 2560002, at **11–13.

[16] Id. at *15.

 

 

 

 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].