Several suits by Amazon workers seeking pay for time spent in security screening have been consolidated in a multidistrict litigation in the Western District of Kentucky. In one of the putative state-law class actions, Pennsylvania-based workers argue that under the Pennsylvania Minimum Wage Act, Amazon owes them for the several minutes per shift they spend in screening.

The district court dismissed the claim, citing the Supreme Court’s decision in Integrity Staffing Solutions, Inc. v. Busk, which held that such “screening is a noncompensable postliminary activity under the Fair Labor Standards Act.”

But the workers—in the fourth appeal (so far) to reach the Sixth Circuit from this MDL—contend that Busk does not apply to the PMWA. On Monday, a Sixth Circuit panel (Griffin writing; Merritt and Daughtrey joining) granted their motion to certify this question to Pennsylvania’s highest court.

Judge Griffin’s opinion reminded the bar that certification is a discretionary determination that is “most appropriate when the question is new and state law is unsettled.” Interestingly, the Sixth Circuit previously declined to certify a similar question to the Kentucky Supreme Court, but distinguished that decision on the ground (among others) that Kentucky law was “in-circuit” and therefore more familiar. Less familiar and more “distant” Pennsylvania law militated in favor of certification. Apparently, it was a prime day for judicial federalism.

In addition to the question whether screening time is compensable under the PMWA, the Pennsylvania Supreme Court also faces a second certified question: whether time spent in screening is a “split-second absurdit[y]” that should be disregarded as de minimis.

Co-Authored by Barrett Block