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The Bogus Jurisprudence of This Supreme Court Majority: A Look at Encino Motorcars v. Navarro

On April 3, 2018 the Supreme Court issued decision, rendered by Thomas, with, of course, the three lady justices and Justice Breyer dissenting in opinion by Ginsburg, in Encino Motorcars, LLC v. Navarro, reversing the Ninth Circuit’s decision in a case in which SCOTUS had previously vacated and remanded due to the 9th Circuit’s alleged reliance on a “procedurally defective” 2011 rule of the U.S. Department of Labor (DOL).[1]  The majority held in Encino Motorcars that the Fair Labor Standards Act (FLSA) exemption at 29 U.S.C. Section 213(b)(10)(A) for any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” at a covered dealership applies to “service advisors.”

The majority opinion recounts how the DOL initially interpreted the exemption to exclude service advisors, then, following federal court rejection of that view, later issued an “opinion letter” explaining that, in most cases, service advisors are exempt, leading to a long period of DOL acquiescence in, and industry reliance upon, supposition of applicability of the exemption.  The majority decision notes that DOL then “reversed course” in issuing a contrary rule at 29 CFR Section 779.372(c).

Of course, you and I have direct experience with service advisors. They are the ones who

“meet customers; listen to their concerns about their cars; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as the services are performed (for instance, if new problems are discovered); and explain the repair and maintenance work when customers return for their vehicles.”

Yet, from our routine dealings with car dealership service advisors, I sincerely doubt that any of us genuinely perceive the primary nature of these positions as “sales,” “mechanical,” or “parts”; rather, by nature, service advisors function more as “facilitators” of communications among sales, parts and mechanical employees and the customers.  The majority (sans the more honest lady justices of the Court), repeatedly pronounces:

“A service advisor is ‘obviously a ‘salesman.’”

Similarly, later in the opinion,

“And the ordinary meaning of ‘salesman’ plainly includes service advisors.”

The majority “finesses” this result via diktat that because “service advisors are integral to the servicing process,” ergo, a service advisor is a mechanic.

Of necessity, the majority concedes that, as you and I both know, “service advisors do not spend most of their time physically repairing automobiles,” apparently overlooking that the predominant focus and concern of the FLSA are work activities and protection of workers, the deciders remarkably find that “the statutory language is not so constrained” as to mean what it says or to be consistent with statutory purpose.

While seasoned employment attorneys and scholars would deem it “elemental” that “exceptions” to labor-protective statutes be construed narrowly to serve the public policies underlying such legislation, the current 5-member team of deciders, citing, of course, works by the venerable A. Scalia, as well as a very recent decision by “mini-Scalia” Gorsuch, “rejects” this foundational legal precept. In verbiage astoundingly violative of basic, hornbook law, the majority writes:

“…[The] exemptions [in the FLSA] are as much a part of the FLSA’s purpose as the overtime-pay requirement. [ citation to Gorsuch 6/12/17 slip opinion in Henson v. Santander Consumer USA Inc., 173 S.Ct.1718] (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage.”)”[2]

Once again marching in dissent, along with Justice Breyer, Lady Justices Ginsburg, Sotomayor and Kagan strongly disagree with both the conclusion as to applicability of the exemption and also the Court’s abrupt departure from its own precedent to the effect that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” [citation to 1960 SCOTUS precedent omitted].[3]

Honing in on the majority’s expansive utilization of the hook, “integral,” the dissent warns,

“By expansively reading the exemption to encompass all salesmen, partsmen and mechanics who are ‘integral to the servicing process…the Court risks restoring much of what Congress intended the 1966 amendment to terminate, i.e., the blanket exemption of all dealership employees from overtime-pay requirements.”[4]

Only the dissent concerns itself, properly, with public policy-related details of the work performed by service advisors, as distinguished from corresponding details of work performed by the clearly exempt job classifications and contrasting, noting that, unlike the salesmen, partsmen and mechanics, the service advisors work ordinary, fixed schedules, on site.

Lastly, the dissent aptly notes that the “alarm” expressed by the majority, that, as urged by the car dealership, affirmance of the Ninth Circuit decision “would yield an ‘unjustified windfall’ to service advisors,is unwarranted due to redundancy of protections afforded such dealerships by the express “reliance defense” afforded under the FLSA, as well as the distinct overtime exemption for primarily commission-based employees.

 

 

[1] SCOTUS had held that the regulation was “procedurally defective” because it “undermined significant reliance interests in the automobile industry by changing the treatment of service advisors without a sufficiently reasoned explanation.”

[2] In Henson, a case concerned with definition of “debt collectors” under the Fair Debt Collection Practices Act, with effusive eloquence, “Grinch” Gorsuch righteously disregards the Congressional “policy” goal of deterring untoward debt collection practices.

 

[3] The dissenters also cite SCOTUS decisions from 1944 and 1950, holding that the “particularity” of FLSA exemptions “precludes their enlargement by implication.”  The dissenters call attention to the majority’s “unabashedness” in rejecting such longstanding principle- in a single paragraph- “without even acknowledging that it unsettles more than half a century of our precedent.”

 

[4] The dissenters cite to the Ninth Circuit’s apt analytic analogy, that the matter that the work of a receptionist/scheduler at a dental office is “integral” to the patient’s obtaining of dental services does not mean that the receptionist/scheduler is “’primarily engaged’ in cleaning teeth or installing crowns.”

THE BOGUS JURISPRUDENCE OF THE

CURRENT SUPREME COURT MAJORITY:

A Look at Encino Motorcars v. Navarro

On April 3, 2018 the Supreme Court issued decision, rendered by Thomas, with, of course, the three lady justices and Justice Breyer dissenting in opinion by Ginsburg, in Encino Motorcars, LLC v. Navarro, reversing the Ninth Circuit’s decision in a case in which SCOTUS had previously vacated and remanded due to the 9th Circuit’s alleged reliance on a “procedurally defective” 2011 rule of the U.S. Department of Labor (DOL).[1]  The majority held in Encino Motorcars that the Fair Labor Standards Act (FLSA) exemption at 29 U.S.C. Section 213(b)(10)(A) for any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” at a covered dealership applies to “service advisors.”

The majority opinion recounts how the DOL initially interpreted the exemption to exclude service advisors, then, following federal court rejection of that view, later issued an “opinion letter” explaining that, in most cases, service advisors are exempt, leading to a long period of DOL acquiescence in, and industry reliance upon, supposition of applicability of the exemption.  The majority decision notes that DOL then “reversed course” in issuing a contrary rule at 29 CFR Section 779.372(c).

Of course, you and I have direct experience with service advisors.

They are the ones who

“meet customers; listen to their concerns about their cars; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as the services are performed (for instance, if new problems are discovered); and explain the repair and maintenance work when customers return for their vehicles.”

Yet, from our routine dealings with car dealership service advisors, I sincerely doubt that any of us genuinely perceive the primary nature of these positions as “sales,” “mechanical,” or “parts”; rather, by nature, service advisors function more as “facilitators” of communications among sales, parts and mechanical employees and the customers.  The majority (sans the more honest lady justices of the Court), repeatedly pronounces:

“A service advisor is ‘obviously a ‘salesman.’”

Similarly, later in the opinion,

“And the ordinary meaning of ‘salesman’ plainly includes service advisors.”

The majority “finesses” this result via diktat that because “service advisors are integral to the servicing process,” ergo, a service advisor is a mechanic.

Of necessity, the majority concedes that, as you and I both know, “service advisors do not spend most of their time physically repairing automobiles,” apparently overlooking that the predominant focus and concern of the FLSA are work activities and protection of workers, the deciders remarkably find that “the statutory language is not so constrained” as to mean what it says or to be consistent with statutory purpose.

While seasoned employment attorneys and scholars would deem it “elemental” that “exceptions” to labor-protective statutes be construed narrowly to serve the public policies underlying such legislation, the current 5-member team of deciders, citing, of course, works by the venerable A. Scalia, as well as a very recent decision by “mini-Scalia” Gorsuch, “rejects” this foundational legal precept. In verbiage astoundingly violative of basic, hornbook law, the majority writes:

“…[The] exemptions [in the FLSA] are as much a part of the FLSA’s purpose as the overtime-pay requirement. [ citation to Gorsuch 6/12/17 slip opinion in Henson v. Santander Consumer USA Inc., 173 S.Ct.1718] (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage.”)”[2]

Once again marching in dissent, along with Justice Breyer, Justices Ginsburg, Sotomayor and Kagan strongly disagree with both the conclusion as to applicability of the exemption and also the Court’s abrupt departure from its own precedent to the effect that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” [citation to 1960 SCOTUS precedent omitted].[3]

Honing in on the majority’s expansive utilization of the hook, “integral,” the dissent warns,

“By expansively reading the exemption to encompass all salesmen, partsmen and mechanics who are ‘integral to the servicing process…the Court risks restoring much of what Congress intended the 1966 amendment to terminate, i.e., the blanket exemption of all dealership employees from overtime-pay requirements.”[4]

Only the dissent concerns itself, properly, with public policy-related details of the work performed by service advisors, as distinguished from corresponding details of work performed by the clearly exempt job classifications and contrasting, noting that, unlike the salesmen, partsmen and mechanics, the service advisors work ordinary, fixed schedules, on site.

Lastly, the dissent aptly notes that the “alarm” expressed by the majority, that, as urged by the car dealership, affirmance of the Ninth Circuit decision “would yield an ‘unjustified windfall’ to service advisors,is unwarranted due to redundancy of protections afforded such dealerships by the express “reliance defense” afforded under the FLSA, as well as the distinct overtime exemption for primarily commission-based employees.

 

 

[1] SCOTUS had held that the regulation was “procedurally defective” because it “undermined significant reliance interests in the automobile industry by changing the treatment of service advisors without a sufficiently reasoned explanation.”

[2] In Henson, a case concerned with definition of “debt collectors” under the Fair Debt Collection Practices Act, with effusive eloquence, “Grinch” Gorsuch righteously disregards the Congressional “policy” goal of deterring untoward debt collection practices.

 

[3] The dissenters also cite SCOTUS decisions from 1944 and 1950, holding that the “particularity” of FLSA exemptions “precludes their enlargement by implication.”  The dissenters call attention to the majority’s “unabashedness” in rejecting such longstanding principle- in a single paragraph- “without even acknowledging that it unsettles more than half a century of our precedent.”

 

[4] The dissenters cite to the Ninth Circuit’s apt analytic analogy, that the matter that the work of a receptionist/scheduler at a dental office is “integral” to the patient’s obtaining of dental services does not mean that the receptionist/scheduler is “’primarily engaged’ in cleaning teeth or installing crowns.”

THE BOGUS JURISPRUDENCE OF THE

CURRENT SUPREME COURT MAJORITY:

A Look at Encino Motorcars v. Navarro

On April 3, 2018 the Supreme Court issued decision, rendered by Thomas, with, of course, the three lady justices and Justice Breyer dissenting in opinion by Ginsburg, in Encino Motorcars, LLC v. Navarro, reversing the Ninth Circuit’s decision in a case in which SCOTUS had previously vacated and remanded due to the 9th Circuit’s alleged reliance on a “procedurally defective” 2011 rule of the U.S. Department of Labor (DOL).[1]  The majority held in Encino Motorcars that the Fair Labor Standards Act (FLSA) exemption at 29 U.S.C. Section 213(b)(10)(A) for any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” at a covered dealership applies to “service advisors.”

The majority opinion recounts how the DOL initially interpreted the exemption to exclude service advisors, then, following federal court rejection of that view, later issued an “opinion letter” explaining that, in most cases, service advisors are exempt, leading to a long period of DOL acquiescence in, and industry reliance upon, supposition of applicability of the exemption.  The majority decision notes that DOL then “reversed course” in issuing a contrary rule at 29 CFR Section 779.372(c).

Of course, you and I have direct experience with service advisors.

They are the ones who

“meet customers; listen to their concerns about their cars; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as the services are performed (for instance, if new problems are discovered); and explain the repair and maintenance work when customers return for their vehicles.”

Yet, from our routine dealings with car dealership service advisors, I sincerely doubt that any of us genuinely perceive the primary nature of these positions as “sales,” “mechanical,” or “parts”; rather, by nature, service advisors function more as “facilitators” of communications among sales, parts and mechanical employees and the customers.  The majority (sans the more honest lady justices of the Court), repeatedly pronounces:

“A service advisor is ‘obviously a ‘salesman.’”

Similarly, later in the opinion,

“And the ordinary meaning of ‘salesman’ plainly includes service advisors.”

The majority “finesses” this result via diktat that because “service advisors are integral to the servicing process,” ergo, a service advisor is a mechanic.

Of necessity, the majority concedes that, as you and I both know, “service advisors do not spend most of their time physically repairing automobiles,” apparently overlooking that the predominant focus and concern of the FLSA are work activities and protection of workers, the deciders remarkably find that “the statutory language is not so constrained” as to mean what it says or to be consistent with statutory purpose.

While seasoned employment attorneys and scholars would deem it “elemental” that “exceptions” to labor-protective statutes be construed narrowly to serve the public policies underlying such legislation, the current 5-member team of deciders, citing, of course, works by the venerable A. Scalia, as well as a very recent decision by “mini-Scalia” Gorsuch, “rejects” this foundational legal precept. In verbiage astoundingly violative of basic, hornbook law, the majority writes:

“…[The] exemptions [in the FLSA] are as much a part of the FLSA’s purpose as the overtime-pay requirement. [ citation to Gorsuch 6/12/17 slip opinion in Henson v. Santander Consumer USA Inc., 173 S.Ct.1718] (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage.”)”[2]

Once again marching in dissent, along with Justice Breyer, Justices Ginsburg, Sotomayor and Kagan strongly disagree with both the conclusion as to applicability of the exemption and also the Court’s abrupt departure from its own precedent to the effect that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” [citation to 1960 SCOTUS precedent omitted].[3]

Honing in on the majority’s expansive utilization of the hook, “integral,” the dissent warns,

“By expansively reading the exemption to encompass all salesmen, partsmen and mechanics who are ‘integral to the servicing process…the Court risks restoring much of what Congress intended the 1966 amendment to terminate, i.e., the blanket exemption of all dealership employees from overtime-pay requirements.”[4]

Only the dissent concerns itself, properly, with public policy-related details of the work performed by service advisors, as distinguished from corresponding details of work performed by the clearly exempt job classifications and contrasting, noting that, unlike the salesmen, partsmen and mechanics, the service advisors work ordinary, fixed schedules, on site.

Lastly, the dissent aptly notes that the “alarm” expressed by the majority, that, as urged by the car dealership, affirmance of the Ninth Circuit decision “would yield an ‘unjustified windfall’ to service advisors,is unwarranted due to redundancy of protections afforded such dealerships by the express “reliance defense” afforded under the FLSA, as well as the distinct overtime exemption for primarily commission-based employees.

 

 

[1] SCOTUS had held that the regulation was “procedurally defective” because it “undermined significant reliance interests in the automobile industry by changing the treatment of service advisors without a sufficiently reasoned explanation.”

[2] In Henson, a case concerned with definition of “debt collectors” under the Fair Debt Collection Practices Act, with effusive eloquence, “Grinch” Gorsuch righteously disregards the Congressional “policy” goal of deterring untoward debt collection practices.

 

[3] The dissenters also cite SCOTUS decisions from 1944 and 1950, holding that the “particularity” of FLSA exemptions “precludes their enlargement by implication.”  The dissenters call attention to the majority’s “unabashedness” in rejecting such longstanding principle- in a single paragraph- “without even acknowledging that it unsettles more than half a century of our precedent.”

 

[4] The dissenters cite to the Ninth Circuit’s apt analytic analogy, that the matter that the work of a receptionist/scheduler at a dental office is “integral” to the patient’s obtaining of dental services does not mean that the receptionist/scheduler is “’primarily engaged’ in cleaning teeth or installing crowns.”

THE BOGUS JURISPRUDENCE OF THE

CURRENT SUPREME COURT MAJORITY:

A Look at Encino Motorcars v. Navarro

On April 3, 2018 the Supreme Court issued decision, rendered by Thomas, with, of course, the three lady justices and Justice Breyer dissenting in opinion by Ginsburg, in Encino Motorcars, LLC v. Navarro, reversing the Ninth Circuit’s decision in a case in which SCOTUS had previously vacated and remanded due to the 9th Circuit’s alleged reliance on a “procedurally defective” 2011 rule of the U.S. Department of Labor (DOL).[1]  The majority held in Encino Motorcars that the Fair Labor Standards Act (FLSA) exemption at 29 U.S.C. Section 213(b)(10)(A) for any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” at a covered dealership applies to “service advisors.”

The majority opinion recounts how the DOL initially interpreted the exemption to exclude service advisors, then, following federal court rejection of that view, later issued an “opinion letter” explaining that, in most cases, service advisors are exempt, leading to a long period of DOL acquiescence in, and industry reliance upon, supposition of applicability of the exemption.  The majority decision notes that DOL then “reversed course” in issuing a contrary rule at 29 CFR Section 779.372(c).

Of course, you and I have direct experience with service advisors.

They are the ones who

“meet customers; listen to their concerns about their cars; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as the services are performed (for instance, if new problems are discovered); and explain the repair and maintenance work when customers return for their vehicles.”

Yet, from our routine dealings with car dealership service advisors, I sincerely doubt that any of us genuinely perceive the primary nature of these positions as “sales,” “mechanical,” or “parts”; rather, by nature, service advisors function more as “facilitators” of communications among sales, parts and mechanical employees and the customers.  The majority (sans the more honest lady justices of the Court), repeatedly pronounces:

“A service advisor is ‘obviously a ‘salesman.’”

Similarly, later in the opinion,

“And the ordinary meaning of ‘salesman’ plainly includes service advisors.”

The majority “finesses” this result via diktat that because “service advisors are integral to the servicing process,” ergo, a service advisor is a mechanic.

Of necessity, the majority concedes that, as you and I both know, “service advisors do not spend most of their time physically repairing automobiles,” apparently overlooking that the predominant focus and concern of the FLSA are work activities and protection of workers, the deciders remarkably find that “the statutory language is not so constrained” as to mean what it says or to be consistent with statutory purpose.

While seasoned employment attorneys and scholars would deem it “elemental” that “exceptions” to labor-protective statutes be construed narrowly to serve the public policies underlying such legislation, the current 5-member team of deciders, citing, of course, works by the venerable A. Scalia, as well as a very recent decision by “mini-Scalia” Gorsuch, “rejects” this foundational legal precept. In verbiage astoundingly violative of basic, hornbook law, the majority writes:

“…[The] exemptions [in the FLSA] are as much a part of the FLSA’s purpose as the overtime-pay requirement. [ citation to Gorsuch 6/12/17 slip opinion in Henson v. Santander Consumer USA Inc., 173 S.Ct.1718] (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage.”)”[2]

Once again marching in dissent, along with Justice Breyer, Justices Ginsburg, Sotomayor and Kagan strongly disagree with both the conclusion as to applicability of the exemption and also the Court’s abrupt departure from its own precedent to the effect that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” [citation to 1960 SCOTUS precedent omitted].[3]

Honing in on the majority’s expansive utilization of the hook, “integral,” the dissent warns,

“By expansively reading the exemption to encompass all salesmen, partsmen and mechanics who are ‘integral to the servicing process…the Court risks restoring much of what Congress intended the 1966 amendment to terminate, i.e., the blanket exemption of all dealership employees from overtime-pay requirements.”[4]

Only the dissent concerns itself, properly, with public policy-related details of the work performed by service advisors, as distinguished from corresponding details of work performed by the clearly exempt job classifications and contrasting, noting that, unlike the salesmen, partsmen and mechanics, the service advisors work ordinary, fixed schedules, on site.

Lastly, the dissent aptly notes that the “alarm” expressed by the majority, that, as urged by the car dealership, affirmance of the Ninth Circuit decision “would yield an ‘unjustified windfall’ to service advisors,is unwarranted due to redundancy of protections afforded such dealerships by the express “reliance defense” afforded under the FLSA, as well as the distinct overtime exemption for primarily commission-based employees.

 

 

[1] SCOTUS had held that the regulation was “procedurally defective” because it “undermined significant reliance interests in the automobile industry by changing the treatment of service advisors without a sufficiently reasoned explanation.”

[2] In Henson, a case concerned with definition of “debt collectors” under the Fair Debt Collection Practices Act, with effusive eloquence, “Grinch” Gorsuch righteously disregards the Congressional “policy” goal of deterring untoward debt collection practices.

 

[3] The dissenters also cite SCOTUS decisions from 1944 and 1950, holding that the “particularity” of FLSA exemptions “precludes their enlargement by implication.”  The dissenters call attention to the majority’s “unabashedness” in rejecting such longstanding principle- in a single paragraph- “without even acknowledging that it unsettles more than half a century of our precedent.”

 

[4] The dissenters cite to the Ninth Circuit’s apt analytic analogy, that the matter that the work of a receptionist/scheduler at a dental office is “integral” to the patient’s obtaining of dental services does not mean that the receptionist/scheduler is “’primarily engaged’ in cleaning teeth or installing crowns.”

THE BOGUS JURISPRUDENCE OF THE

CURRENT SUPREME COURT MAJORITY:

A Look at Encino Motorcars v. Navarro

On April 3, 2018 the Supreme Court issued decision, rendered by Thomas, with, of course, the three lady justices and Justice Breyer dissenting in opinion by Ginsburg, in Encino Motorcars, LLC v. Navarro, reversing the Ninth Circuit’s decision in a case in which SCOTUS had previously vacated and remanded due to the 9th Circuit’s alleged reliance on a “procedurally defective” 2011 rule of the U.S. Department of Labor (DOL).[1]  The majority held in Encino Motorcars that the Fair Labor Standards Act (FLSA) exemption at 29 U.S.C. Section 213(b)(10)(A) for any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” at a covered dealership applies to “service advisors.”

The majority opinion recounts how the DOL initially interpreted the exemption to exclude service advisors, then, following federal court rejection of that view, later issued an “opinion letter” explaining that, in most cases, service advisors are exempt, leading to a long period of DOL acquiescence in, and industry reliance upon, supposition of applicability of the exemption.  The majority decision notes that DOL then “reversed course” in issuing a contrary rule at 29 CFR Section 779.372(c).

Of course, you and I have direct experience with service advisors.

They are the ones who

“meet customers; listen to their concerns about their cars; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as the services are performed (for instance, if new problems are discovered); and explain the repair and maintenance work when customers return for their vehicles.”

Yet, from our routine dealings with car dealership service advisors, I sincerely doubt that any of us genuinely perceive the primary nature of these positions as “sales,” “mechanical,” or “parts”; rather, by nature, service advisors function more as “facilitators” of communications among sales, parts and mechanical employees and the customers.  The majority (sans the more honest lady justices of the Court), repeatedly pronounces:

“A service advisor is ‘obviously a ‘salesman.’”

Similarly, later in the opinion,

“And the ordinary meaning of ‘salesman’ plainly includes service advisors.”

The majority “finesses” this result via diktat that because “service advisors are integral to the servicing process,” ergo, a service advisor is a mechanic.

Of necessity, the majority concedes that, as you and I both know, “service advisors do not spend most of their time physically repairing automobiles,” apparently overlooking that the predominant focus and concern of the FLSA are work activities and protection of workers, the deciders remarkably find that “the statutory language is not so constrained” as to mean what it says or to be consistent with statutory purpose.

While seasoned employment attorneys and scholars would deem it “elemental” that “exceptions” to labor-protective statutes be construed narrowly to serve the public policies underlying such legislation, the current 5-member team of deciders, citing, of course, works by the venerable A. Scalia, as well as a very recent decision by “mini-Scalia” Gorsuch, “rejects” this foundational legal precept. In verbiage astoundingly violative of basic, hornbook law, the majority writes:

“…[The] exemptions [in the FLSA] are as much a part of the FLSA’s purpose as the overtime-pay requirement. [ citation to Gorsuch 6/12/17 slip opinion in Henson v. Santander Consumer USA Inc., 173 S.Ct.1718] (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage.”)”[2]

Once again marching in dissent, along with Justice Breyer, Justices Ginsburg, Sotomayor and Kagan strongly disagree with both the conclusion as to applicability of the exemption and also the Court’s abrupt departure from its own precedent to the effect that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” [citation to 1960 SCOTUS precedent omitted].[3]

Honing in on the majority’s expansive utilization of the hook, “integral,” the dissent warns,

“By expansively reading the exemption to encompass all salesmen, partsmen and mechanics who are ‘integral to the servicing process…the Court risks restoring much of what Congress intended the 1966 amendment to terminate, i.e., the blanket exemption of all dealership employees from overtime-pay requirements.”[4]

Only the dissent concerns itself, properly, with public policy-related details of the work performed by service advisors, as distinguished from corresponding details of work performed by the clearly exempt job classifications and contrasting, noting that, unlike the salesmen, partsmen and mechanics, the service advisors work ordinary, fixed schedules, on site.

Lastly, the dissent aptly notes that the “alarm” expressed by the majority, that, as urged by the car dealership, affirmance of the Ninth Circuit decision “would yield an ‘unjustified windfall’ to service advisors,is unwarranted due to redundancy of protections afforded such dealerships by the express “reliance defense” afforded under the FLSA, as well as the distinct overtime exemption for primarily commission-based employees.

 

 

[1] SCOTUS had held that the regulation was “procedurally defective” because it “undermined significant reliance interests in the automobile industry by changing the treatment of service advisors without a sufficiently reasoned explanation.”

[2] In Henson, a case concerned with definition of “debt collectors” under the Fair Debt Collection Practices Act, with effusive eloquence, “Grinch” Gorsuch righteously disregards the Congressional “policy” goal of deterring untoward debt collection practices.

 

[3] The dissenters also cite SCOTUS decisions from 1944 and 1950, holding that the “particularity” of FLSA exemptions “precludes their enlargement by implication.”  The dissenters call attention to the majority’s “unabashedness” in rejecting such longstanding principle- in a single paragraph- “without even acknowledging that it unsettles more than half a century of our precedent.”

 

[4] The dissenters cite to the Ninth Circuit’s apt analytic analogy, that the matter that the work of a receptionist/scheduler at a dental office is “integral” to the patient’s obtaining of dental services does not mean that the receptionist/scheduler is “’primarily engaged’ in cleaning teeth or installing crowns.”

THE BOGUS JURISPRUDENCE OF THE

CURRENT SUPREME COURT MAJORITY:

A Look at Encino Motorcars v. Navarro

On April 3, 2018 the Supreme Court issued decision, rendered by Thomas, with, of course, the three lady justices and Justice Breyer dissenting in opinion by Ginsburg, in Encino Motorcars, LLC v. Navarro, reversing the Ninth Circuit’s decision in a case in which SCOTUS had previously vacated and remanded due to the 9th Circuit’s alleged reliance on a “procedurally defective” 2011 rule of the U.S. Department of Labor (DOL).[1]  The majority held in Encino Motorcars that the Fair Labor Standards Act (FLSA) exemption at 29 U.S.C. Section 213(b)(10)(A) for any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” at a covered dealership applies to “service advisors.”

The majority opinion recounts how the DOL initially interpreted the exemption to exclude service advisors, then, following federal court rejection of that view, later issued an “opinion letter” explaining that, in most cases, service advisors are exempt, leading to a long period of DOL acquiescence in, and industry reliance upon, supposition of applicability of the exemption.  The majority decision notes that DOL then “reversed course” in issuing a contrary rule at 29 CFR Section 779.372(c).

Of course, you and I have direct experience with service advisors.

They are the ones who

“meet customers; listen to their concerns about their cars; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as the services are performed (for instance, if new problems are discovered); and explain the repair and maintenance work when customers return for their vehicles.”

Yet, from our routine dealings with car dealership service advisors, I sincerely doubt that any of us genuinely perceive the primary nature of these positions as “sales,” “mechanical,” or “parts”; rather, by nature, service advisors function more as “facilitators” of communications among sales, parts and mechanical employees and the customers.  The majority (sans the more honest lady justices of the Court), repeatedly pronounces:

“A service advisor is ‘obviously a ‘salesman.’”

Similarly, later in the opinion,

“And the ordinary meaning of ‘salesman’ plainly includes service advisors.”

The majority “finesses” this result via diktat that because “service advisors are integral to the servicing process,” ergo, a service advisor is a mechanic.

Of necessity, the majority concedes that, as you and I both know, “service advisors do not spend most of their time physically repairing automobiles,” apparently overlooking that the predominant focus and concern of the FLSA are work activities and protection of workers, the deciders remarkably find that “the statutory language is not so constrained” as to mean what it says or to be consistent with statutory purpose.

While seasoned employment attorneys and scholars would deem it “elemental” that “exceptions” to labor-protective statutes be construed narrowly to serve the public policies underlying such legislation, the current 5-member team of deciders, citing, of course, works by the venerable A. Scalia, as well as a very recent decision by “mini-Scalia” Gorsuch, “rejects” this foundational legal precept. In verbiage astoundingly violative of basic, hornbook law, the majority writes:

“…[The] exemptions [in the FLSA] are as much a part of the FLSA’s purpose as the overtime-pay requirement. [ citation to Gorsuch 6/12/17 slip opinion in Henson v. Santander Consumer USA Inc., 173 S.Ct.1718] (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage.”)”[2]

Once again marching in dissent, along with Justice Breyer, Justices Ginsburg, Sotomayor and Kagan strongly disagree with both the conclusion as to applicability of the exemption and also the Court’s abrupt departure from its own precedent to the effect that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” [citation to 1960 SCOTUS precedent omitted].[3]

Honing in on the majority’s expansive utilization of the hook, “integral,” the dissent warns,

“By expansively reading the exemption to encompass all salesmen, partsmen and mechanics who are ‘integral to the servicing process…the Court risks restoring much of what Congress intended the 1966 amendment to terminate, i.e., the blanket exemption of all dealership employees from overtime-pay requirements.”[4]

Only the dissent concerns itself, properly, with public policy-related details of the work performed by service advisors, as distinguished from corresponding details of work performed by the clearly exempt job classifications and contrasting, noting that, unlike the salesmen, partsmen and mechanics, the service advisors work ordinary, fixed schedules, on site.

Lastly, the dissent aptly notes that the “alarm” expressed by the majority, that, as urged by the car dealership, affirmance of the Ninth Circuit decision “would yield an ‘unjustified windfall’ to service advisors,is unwarranted due to redundancy of protections afforded such dealerships by the express “reliance defense” afforded under the FLSA, as well as the distinct overtime exemption for primarily commission-based employees.

 

 

[1] SCOTUS had held that the regulation was “procedurally defective” because it “undermined significant reliance interests in the automobile industry by changing the treatment of service advisors without a sufficiently reasoned explanation.”

[2] In Henson, a case concerned with definition of “debt collectors” under the Fair Debt Collection Practices Act, with effusive eloquence, “Grinch” Gorsuch righteously disregards the Congressional “policy” goal of deterring untoward debt collection practices.

 

[3] The dissenters also cite SCOTUS decisions from 1944 and 1950, holding that the “particularity” of FLSA exemptions “precludes their enlargement by implication.”  The dissenters call attention to the majority’s “unabashedness” in rejecting such longstanding principle- in a single paragraph- “without even acknowledging that it unsettles more than half a century of our precedent.”

 

[4] The dissenters cite to the Ninth Circuit’s apt analytic analogy, that the matter that the work of a receptionist/scheduler at a dental office is “integral” to the patient’s obtaining of dental services does not mean that the receptionist/scheduler is “’primarily engaged’ in cleaning teeth or installing crowns.”

THE BOGUS JURISPRUDENCE OF THE

CURRENT SUPREME COURT MAJORITY:

A Look at Encino Motorcars v. Navarro

On April 3, 2018 the Supreme Court issued decision, rendered by Thomas, with, of course, the three lady justices and Justice Breyer dissenting in opinion by Ginsburg, in Encino Motorcars, LLC v. Navarro, reversing the Ninth Circuit’s decision in a case in which SCOTUS had previously vacated and remanded due to the 9th Circuit’s alleged reliance on a “procedurally defective” 2011 rule of the U.S. Department of Labor (DOL).[1]  The majority held in Encino Motorcars that the Fair Labor Standards Act (FLSA) exemption at 29 U.S.C. Section 213(b)(10)(A) for any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” at a covered dealership applies to “service advisors.”

The majority opinion recounts how the DOL initially interpreted the exemption to exclude service advisors, then, following federal court rejection of that view, later issued an “opinion letter” explaining that, in most cases, service advisors are exempt, leading to a long period of DOL acquiescence in, and industry reliance upon, supposition of applicability of the exemption.  The majority decision notes that DOL then “reversed course” in issuing a contrary rule at 29 CFR Section 779.372(c).

Of course, you and I have direct experience with service advisors.

They are the ones who

“meet customers; listen to their concerns about their cars; suggest repair and maintenance services; sell new accessories or replacement parts; record service orders; follow up with customers as the services are performed (for instance, if new problems are discovered); and explain the repair and maintenance work when customers return for their vehicles.”

Yet, from our routine dealings with car dealership service advisors, I sincerely doubt that any of us genuinely perceive the primary nature of these positions as “sales,” “mechanical,” or “parts”; rather, by nature, service advisors function more as “facilitators” of communications among sales, parts and mechanical employees and the customers.  The majority (sans the more honest lady justices of the Court), repeatedly pronounces:

“A service advisor is ‘obviously a ‘salesman.’”

Similarly, later in the opinion,

“And the ordinary meaning of ‘salesman’ plainly includes service advisors.”

The majority “finesses” this result via diktat that because “service advisors are integral to the servicing process,” ergo, a service advisor is a mechanic.

Of necessity, the majority concedes that, as you and I both know, “service advisors do not spend most of their time physically repairing automobiles,” apparently overlooking that the predominant focus and concern of the FLSA are work activities and protection of workers, the deciders remarkably find that “the statutory language is not so constrained” as to mean what it says or to be consistent with statutory purpose.

While seasoned employment attorneys and scholars would deem it “elemental” that “exceptions” to labor-protective statutes be construed narrowly to serve the public policies underlying such legislation, the current 5-member team of deciders, citing, of course, works by the venerable A. Scalia, as well as a very recent decision by “mini-Scalia” Gorsuch, “rejects” this foundational legal precept. In verbiage astoundingly violative of basic, hornbook law, the majority writes:

“…[The] exemptions [in the FLSA] are as much a part of the FLSA’s purpose as the overtime-pay requirement. [ citation to Gorsuch 6/12/17 slip opinion in Henson v. Santander Consumer USA Inc., 173 S.Ct.1718] (“Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage.”)”[2]

Once again marching in dissent, along with Justice Breyer, Justices Ginsburg, Sotomayor and Kagan strongly disagree with both the conclusion as to applicability of the exemption and also the Court’s abrupt departure from its own precedent to the effect that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” [citation to 1960 SCOTUS precedent omitted].[3]

Honing in on the majority’s expansive utilization of the hook, “integral,” the dissent warns,

“By expansively reading the exemption to encompass all salesmen, partsmen and mechanics who are ‘integral to the servicing process…the Court risks restoring much of what Congress intended the 1966 amendment to terminate, i.e., the blanket exemption of all dealership employees from overtime-pay requirements.”[4]

Only the dissent concerns itself, properly, with public policy-related details of the work performed by service advisors, as distinguished from corresponding details of work performed by the clearly exempt job classifications and contrasting, noting that, unlike the salesmen, partsmen and mechanics, the service advisors work ordinary, fixed schedules, on site.

Lastly, the dissent aptly notes that the “alarm” expressed by the majority, that, as urged by the car dealership, affirmance of the Ninth Circuit decision “would yield an ‘unjustified windfall’ to service advisors,is unwarranted due to redundancy of protections afforded such dealerships by the express “reliance defense” afforded under the FLSA, as well as the distinct overtime exemption for primarily commission-based employees.

 

 

[1] SCOTUS had held that the regulation was “procedurally defective” because it “undermined significant reliance interests in the automobile industry by changing the treatment of service advisors without a sufficiently reasoned explanation.”

[2] In Henson, a case concerned with definition of “debt collectors” under the Fair Debt Collection Practices Act, with effusive eloquence, “Grinch” Gorsuch righteously disregards the Congressional “policy” goal of deterring untoward debt collection practices.

 

[3] The dissenters also cite SCOTUS decisions from 1944 and 1950, holding that the “particularity” of FLSA exemptions “precludes their enlargement by implication.”  The dissenters call attention to the majority’s “unabashedness” in rejecting such longstanding principle- in a single paragraph- “without even acknowledging that it unsettles more than half a century of our precedent.”

 

[4] The dissenters cite to the Ninth Circuit’s apt analytic analogy, that the matter that the work of a receptionist/scheduler at a dental office is “integral” to the patient’s obtaining of dental services does not mean that the receptionist/scheduler is “’primarily engaged’ in cleaning teeth or installing crowns.”