The Justices should have a relaxing moment with Encino Motorcars v. Navarro, next week’s dispute under the Fair Labor Standards Act (FLSA), one of the simplest cases of the entire Term. The FLSA, as presumably all of you know, obligates employers to pay overtime pay to qualifying employees who work more than forty hours in a week, but has exceptions that take large swaths of the workforce out of its protection. Several of those exceptions govern salesmen of various kinds – no references to “salespersons” in this FDR-era statute! The relevant exception here covers any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.” The subject employees are service advisors at car dealers – who neither sell cars nor service automobiles, but sell the servicing of automobiles.
The most entertaining part of the dispute is the historical arc that brought the dispute to the Court. In its earliest form, the FLSA exempted car dealerships entirely. In the 1960s, though, Congress revised the statute (at least in part to bring coverage to janitorial and clerical staff at car dealerships) to include the quoted language, so that the exemption traced more accurately the employees’ particular functions. The Department of Labor (DOL) promptly adopted regulations under which the exemption would not reach service advisors – that is, they would be entitled to overtime pay. In that pre-Chevron milieu, numerous courts rejected those regulations, and the DOL eventually acquiesced in the exclusion of service advisors from the overtime requirement. Fast forward to 2008, and the inception of this controversy. In that year, DOL initiated a rulemaking proceeding to update the relevant regulations. After receiving notice and comment, it formally adopted a regulation returning to its initial view, bringing service advisors back within the overtime regime.
Against that history, the employee (respondent Hector Navarro) naturally contends that the language is sufficiently ambiguous to warrant Chevron deference to the DOL reading; the employer (petitioner Encino Motorcars) contends just as vigorously that the language is so plain that the courts owe no deference to the shifting views DOL has adopted through the years. In the end, then, the case centers on the statute’s simple reference to any “salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles.”
The arguments on that point are carefully drawn. The employer emphasizes the strange line-drawing that flows from the DOL view: all agree that employees selling cars are covered and that employees servicing cars are covered; it is strange to exclude those who sell the servicing of cars. As Paul Clement (counsel for the employer) quips, “it would be nonsensical to suggest that a salesman primarily engaged in the selling of automobile servicing is engaged in neither selling nor servicing automobiles.” Parsing the language, Clement contends that service advisors are covered because they are “primarily engaged in . . . servicing automobiles.”
On the other side, Stephanos Bibas and the Supreme Court Clinic at the University of PennsylvaniaLaw School’s Supreme Court Clinic, representing Hector Navarro and his fellow employees, tender a tour de force of close linguistic analysis. Rife with citations to Strunk & White, Black’s Law Dictionary, and of course Antonin Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts, they rest on the obscure interpretive canon “reddendo singula singulis” – literally “applying separate words to separate subjects.” Lest readers think ill of themselves if they are not familiar with the reddendo canon, I should point out that the Court has not applied the canon explicitly since 1918.
Generally, that canon calls for recognition of the frequency of “distributive” as opposed to “collective” phrasing. If that conveys little of clarity, I can offer the Scalia & Garner example used in the employee’s brief: a charter stating that “men and women are eligible to join fraternities and sororities” naturally permits men to join fraternities and women to join sororities, but it does not allow men to join sororities or women to join fraternities. In this context, that would mean that the twin references to “salesman” and “mechanics” should be paired, respectively, with the later references to “selling” and “servicing.” Under that reading, the statute covers “salesmen selling” and “mechanics servicing” automobiles; it does not, though, cover salesmen servicing automobiles or mechanics selling automobiles.
Who can say how interested the Justices of the latter-day Court will be in this kind of deterministic linguistic analysis? However fun it is to mull the application of obscure canons of statutory construction, it is clear that the application of this canon is entirely contextual. It explains the fraternity/sorority example only because it would be sufficiently unusual to intend the admission of women to fraternities and men to sororities that we would expect more direct expression of such an intent. In an area as necessarily dominated by arbitrary line-drawing as the exceptions from the FLSA, it is difficult to have any fixed expectation of what readings might seem natural.
I could not read the briefs without a smile as I imagined Justice Scalia’s joy at diving into this controversy and how he will be missed when the Justices sit to hear these arguments next week. The sentiment leaves an old song repeating ceaselessly in my head:
“Where have you gone, Joe Dimaggio
A Nation turns its lonely eyes to you
. . . Joltin’ Joe has left and gone away.”
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