RENDERED: MARCH 23, 2023

TO BE PUBLISHED

Supreme Court of Kentucky

2021-SC-0444-DG

MARION HUGHES; JAMES A. CRUME; 

PHILLIP L. WESTERN; RAYMOND S. 

BATTS; AND TERRI A. ROGERS

APPELLANTS

ON REVIEW FROM COURT OF APPEALS

V. NO. 2019-CA-1457

JEFFERSON CIRCUIT COURT NO. 07-CI-009996

UPS SUPPLY CHAIN SOLUTIONS, INC.; 

UNITED PARCEL SERVICE, INC.

APPELLEES

OPINION OF THE COURT BY CHIEF JUSTICE VANMETER

AFFIRMING

In matters of statutory construction, courts have the duty to ascertain 

and give meaning to the intent of the legislature. In this case, our task is to 

determine whether KRS1 Chapter 337 encompasses the federal Portal-to-Portal 

provisions such that preliminary and postliminary activities, such as 

undergoing security screens, are non-compensable. Under customary rules of 

statutory construction, we hold that such activities are non-compensable and 

therefore affirm the Court of Appeals and the Jefferson Circuit Court.

1 Kentucky Revised Statutes.
2

I. Factual and Procedural Background.

This action was filed back in 2007 as a wage-and-hour class action by 

Marion Hughes2 against UPS Supply Chain Solutions and United Parcel 

Service, Inc.3 The complaint alleged that UPS violated KRS Chapter 337 by 

failing to compensate Class Members for time spent complying with mandatory 

security procedures upon entering/exiting UPS facilities. The allegations were 

that Class Members expended work time on (i) entering after complying with 

mandatory entry security procedures and before being permitted to clock-in

and (ii) exiting after being required to clock-out and then complying with 

mandatory exit security procedures. The Class Members refer to this 

uncompensated time as “security time.”

The long procedural history of this case is not particularly germane to 

the issue before us, since, as noted, that issue is one of statutory construction. 

Suffice to say that this case spent some time in the federal courts on UPS’s 

attempt to remove it there,4 and then back in state court on whether it would 

2 By First Amended Complaint and Second Amended Complaint, James A. 

Crume, Phillip L. Western, Raymond S. Batts, and Terri A. Rogers were added as 

plaintiffs. We refer to the named plaintiffs and other members of the class as “Class 

Members.”

3 We refer to the defendants jointly as “UPS.”

4 Hughes v. UPS Supply Chain Sols., Inc., No. 3:07-CV-605-S, 2008 WL 3456217 

(W.D. Ky. Aug. 8, 2008) (denying federal diversity jurisdiction), denying permission to 

appeal, In re UPS Supply Chain Sols., Inc., No. 08-0513, 2008 WL 4767817 (6th Cir. 

Oct. 27, 2008); Hughes v. UPS Supply Chain Sols., Inc., No. 3:09-CV-576-S, 2010 WL 

1257724 (W.D. Ky. Mar. 26, 2010) (denying second attempt at removal for federal 

diversity jurisdiction); Hughes v. UPS Supply Chain Sols., Inc., 815 F. Supp.2d 993 

(W.D. Ky. 2011) (granting employees’ motion to remand to state court for employer’s 

waiver of Labor Management Relations Act’s claims).
3

proceed as a class action.5 Ultimately, the Court of Appeals affirmed the trial 

court’s order certifying the class. UPS Supply Chain Sols., Inc. v. Hughes, No.

2014-CA-1496-ME, 2018 WL 3602262 (Ky. App. July 27, 2018).

Following the Court of Appeals’ opinion affirming the trial court’s class 

certification, UPS moved for judgment on the pleadings, arguing that “the time 

for which the Class was seeking compensation – time spent waiting for and 

undergoing security screenings – was not compensable under Kentucky law[]” 

based on the Portal-to-Portal Act, 29 U.S.C.6 §§ 251-262, and federal and 

Kentucky case law interpreting the federal Fair Labor Standards Act, 29 U.S.C. 

§§ 201- 219, the Portal-to-Portal Act and KRS Chapter 337. The Class 

Members’ response was that because KRS Chapter 337 did not include 

language tracking the provisions of the Portal-to-Portal Act, specifically 29 

U.S.C. § 254,7 our legislature had elected not to include those provisions and 

5 Hughes v. UPS Supply Chain Sols., Inc., No. 2012-CA-001353-ME, 2013 WL 

4779746 (Ky. App. Sept. 6, 2013) (reversing denial of class certification and remanding 

for additional consideration under Kentucky Rules of Civil Procedure (“CR”) 23). 

Under CR 23.06, “[a]n order granting or denying class action certification is 

appealable[.]”

6 United States Code.

7 29 U.S.C. § 254(a) sets forth general exemptions from compensable time:

(a) Activities not compensable

Except as provided in subsection (b), no employer shall be subject 

to any liability or punishment under the Fair Labor Standards Act of 

1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, on 

account of the failure of such employer to pay an employee minimum 

wages, or to pay an employee overtime compensation, for or on account 

of any of the following activities of such employee engaged in on or after 

May 14, 1947--
4

therefore they were inapplicable. The trial court granted UPS’s motion and the 

Court of Appeals affirmed. We granted the Class Members’ motion for 

discretionary review.

II. Standard of Review.

In this case, the trial court granted UPS’s motion for partial judgment on 

the pleadings. CR 12.03. A motion for judgment on the pleadings “should be 

granted if it appears beyond doubt that the nonmoving party cannot prove any 

set of facts that would entitle him/her to relief.” Mosley v. Arch Specialty Ins. 

Co., 626 S.W.3d 579, 585 (Ky. 2021); City of Pioneer Vill. v. Bullitt Cnty. ex rel. 

Bullitt Fiscal Ct., 104 S.W.3d 757, 759 (Ky. 2003). Such motions are “based 

purely on whether the plaintiff has stated a cause of action as a matter of law 

and do not require or permit the trial court to make any findings of fact.” 

Mosley, 626 S.W.3d at 585 (footnote omitted). Because a trial court's ruling on 

a motion for judgment on the pleadings is a question of law, appellate review of 

(1) walking, riding, or traveling to and from the actual place of 

performance of the principal activity or activities which such employee is 

employed to perform, and

(2) activities which are preliminary to or postliminary to said 

principal activity or activities,

which occur either prior to the time on any particular workday at which 

such employee commences, or subsequent to the time on any particular 

workday at which he ceases, such principal activity or activities. For 

purposes of this subsection, the use of an employer's vehicle for travel by 

an employee and activities performed by an employee which are 

incidental to the use of such vehicle for commuting shall not be 

considered part of the employee's principal activities if the use of such 

vehicle for travel is within the normal commuting area for the employer's 

business or establishment and the use of the employer's vehicle is 

subject to an agreement on the part of the employer and the employee or 

representative of such employee.
5

a judgment on the pleadings is de novo. Id. (footnote omitted). Thus, we afford 

no deference to the lower court’s opinions or rulings. Id. Similarly, we 

interpret statutes without deferring to lower courts’ interpretations. Wheeler & 

Clevenger Oil Co. v. Washburn, 127 S.W.3d 609, 612 (Ky. 2004).

III. Analysis.

The issue presented is one of statutory construction, i.e., whether the 

Portal-to-Portal exceptions are contained within Kentucky’s wage and hour 

provisions. 

In matters of statutory construction, “our goal, of course, is to give effect 

to the intent of the [legislature].” Shawnee Telecom Res., Inc. v. Brown, 354 

S.W.3d 542, 551 (Ky. 2011). To derive that intent, we look first to the statute’s 

language, “giving the words their plain and ordinary meaning.” Pleasant 

Unions, LLC v. Ky. Tax Co., 615 S.W.3d 39, 45 (Ky. 2021); see Shawnee 

Telecom, 354 S.W.3d at 551 (holding that intent is derived “from the language 

the [legislature] chose, either as defined by the [legislature] or as generally 

understood in the context of the matter under consideration[]”). “All words and 

phrases shall be construed according to the common and approved usage of 

language, but technical words and phrases, and such others as may have 

acquired a peculiar and appropriate meaning in the law, shall be construed 

according to such meaning.” KRS 446.080(4). If the statutory language is 

plain and unambiguous, the legislature's intent is deduced from the language 

used. W. Ky. Coal Co. v. Nall & Bailey, 228 Ky. 76, 80, 14 S.W.2d 400, 401–02 

(1929). On the other hand, if the language is ambiguous, we resort to rules of 
6

interpretation to guide our determination of the legislature’s intent. Pleasant 

Unions, 615 S.W.3d at 45; MPM Fin. Group, LLC v. Morton, 289 S.W.3d 193, 198 

(Ky. 2009).

In this case, KRS Chapter 337 is ambiguous in that it does not define 

“work,” and contains no provision which addresses, either way, whether 

preliminary or postliminary activities constitute compensable work or time on 

the job. We acknowledge that KRS Chapter 337 “protects employees from the 

unlawful wage and hour practices of their employer.” Mouanda v. Jani-King 

Int'l, No. 2021-SC-0089-DG, 653 S.W.3d 65, 2022 WL 3641175, at *3 (Ky. Aug. 

18, 2022). KRS 337.010(1)(c)1 defines “wages” to include “any compensation 

due to an employee by reason of his or her employment, including salaries, 

commissions, vested vacation pay, overtime pay, severance or dismissal pay, 

earned bonuses, and any other similar advantages agreed upon by the 

employer and the employee or provided to employees as an established policy.” 

An “employee,” with exceptions not applicable to this case, is defined as “any 

person employed by or suffered or permitted to work for an employer[.]” KRS 

337.010(1)(e). KRS 337.275 defines “minimum wage,” but that provision does 

not specifically help our interpretation in this case. And, finally, and perhaps 

most pertinently, “any employer who pays any employee less than wages and 

overtime compensation to which such employee is entitled under or by virtue of 
7

KRS 337.020 to 337.285 shall be liable to such employee affected for the full 

amount of such wages and overtime compensation[.]” KRS 337.385(1).

8 

To resolve this ambiguity, we are guided by both state administrative 

interpretation and federal case law. We discuss each in turn.

A. State Administrative Interpretation of KRS Chapter 337.

The legislature has empowered the Kentucky Labor Cabinet, specifically 

the Kentucky Department of Workplace Standards, to issue administrative 

regulations “defining and governing” KRS Chapter 337. See KRS 337.295. 

Those agencies enjoy “wide discretion” in interpreting Kentucky law. Ky. Mun. 

League v. Commonwealth Dep't of Labor, 530 S.W.2d 198, 201–02 (Ky. App. 

1975) (citing Butler v. United Cerebral Palsy of N. Ky., Inc., 352 S.W.2d 203 (Ky. 

1961)). And the Department of Workplace Standard’s administrative 

interpretation of Kentucky law serves as a basis for the application of Kentucky 

statutes. See City of Louisville, Div. of Fire v. Fire Serv. Managers Ass’n ex rel. 

Kaelin, 212 S.W.3d 89, 92–93, 96 (Ky. 2006).

For nearly half a century, the Kentucky Department of Workplace 

Standards has concluded that the Portal-to-Portal Act’s compensation limits 

are part of the KRS Chapter 337 framework.9 See 803 KAR 1:065 (LAB-12; 1 

Ky. R. 253; eff. 1-8-75; TAM eff. 8-9-2007; expired 3-1-2020). For instance, 

8 This lack of specificity is underscored by the Class Members’ second amended 

complaint which cites no specific statute or regulation, but merely alleges “UPS has 

violated Kentucky’s wage and hour laws and regulations.”

9 Kentucky’s current regulation regarding hours worked is codified at 803 Ky. 

Admin. Regs. (“KAR”) 1:067 (48 Ky. R. 2336, 2980; eff. 8-30-2022). 
8

Kentucky’s longstanding administrative regulation regarding “Travel Time” 

stated:

(1) General. The principles which apply in determining 

whether or not time spent in travel is working time depend upon 

the kind of travel involved.

(2) Home to work. An employe[e] who travels from home 

before his regular workday and returns to his home at the end of 

the workday is engaged in ordinary home to work travel which is a 

normal incident of employment. This is true whether he works at a 

fixed location or at different job sites. Normal travel from home to 

work is not worktime.

(3) Travel that is worktime. Time spent by an employe[e] 

in travel as part of his principal activity, such as travel from job site 

to job site during the workday, must be counted as hours worked.

Where an employe[e] is required to report at a meeting place to 

receive instructions or to perform other work there, the travel from 

the designated place to the work place is part of the day’s work, 

and must be counted as hours worked.

803 KAR 1:065 (emphasis added).

And although the earlier regulation, 803 KAR 1:065, expired in 2020, 

Kentucky’s current regulation regarding “Hours Worked” expressly 

incorporates federal standards into the definition of “Travel Time,” stating, 

“Travel Time. The requirements for travel time applicable to KRS 337.275 and 

337.285 shall be as established in 29 C.F.R.10 785.33, 785.35, 785.38, and 

785.39.” 803 KAR 1:067(7).11 

10 Code of Federal Regulations.

11 The language in 29 C.F.R. 785.38, which is incorporated by reference in 803 

KAR 1:067(7), is identical to the relevant language in Kentucky’s previous regulation 

regarding travel time. Compare 803 KAR 1:065 (1975) (“[t]ime spent by an employe[e] 

in travel as part of his principle activity, such as travel from job site to job site during 

the workday, must be counted as hours worked[]”), with 29 C.F.R. 785.38 (“[t]ime 

spent by an employee in travel as part of his principal activity, such as travel from job 

site to job site during the workday, must be counted as hours worked[]”).
9

“Both the phrase and concept of a ‘principal activity’ are taken from the 

text of the Portal-to-Portal Act.” Vance v. Amazon.com, Inc. (In re Amazon.com, 

Inc., Fulfillment Ctr. Fair Lab. Standards Act (FLSA) & Wage & Hour Litig.), 852 

F.3d 601, 613 (6th Cir. 2017) (citing 29 U.S.C. § 254(a)). Inclusion of the 

“principal activity” language in Kentucky’s administrative regulations 

strengthens the connection between KRS Chapter 337 and the Portal-to-Portal 

Act, “which has employer liability for ‘walking, riding [and] traveling to and 

from the actual place of performance’ squarely at its focus.” Id. (quoting 29 

U.S.C. § 254(a)(1)).

Furthermore, Kentucky’s wait-time regulation, 803 KAR 1:063,12 imports 

the Portal-to-Portal Act rule and is drawn from federal regulations, see 29 

C.F.R. §§ 785.14–16. Id. “Both sets of regulations explain that ‘waiting is an 

integral part of the job’ only when the employee is ‘engaged to wait’—meaning 

his workday has begun and he is anticipating some further principal activity, 

such as a stenographer waiting to take dictation or a firefighter waiting for a 

call.” Id. (citing 803 KAR 1:065(3)(2) and 29 C.F.R. § 785.15).

The longstanding similarities between KRS Chapter 337’s administrative 

regulations and their federal counterparts bolsters the conclusion that the 

Portal-to-Portal Act’s exemptions apply to KRS Chapter 337. Under Kentucky 

law, administrative regulations have the full force and effect of law when duly 

enacted and consistent with enabling legislation. Centre College v. Trzop, 127 

12 Although the previous version of 803 KAR 1:063 has expired, similar 

language has been recodified at 803 KAR 1:064.
10

S.W.3d 562, 566 (Ky. 2003). As a result, even considering legislative silence on 

the issue, the Portal-to-Portal Act’s exemptions have been Kentucky law by way 

of administrative regulation since 1975.

Moreover, legislative inaction here supports the conclusion that KRS 

Chapter 337 imports the Portal-to-Portal Act’s exemptions. The legislature has 

convened in regular session over thirty times since the Kentucky Department of 

Workplace Standards first incorporated the Portal-to-Portal Act’s exemptions 

into KRS Chapter 337.13 As will be discussed in more detail infra, the 

legislature has not been shy about amending other parts of KRS Chapter 337. 

Legislative inaction under these circumstances demonstrates that the 

legislature has ratified, or at the very least has acquiesced, in the Department 

of Workplace Standard’s inclusion of the Portal-to-Portal Act’s exemptions in 

the KWHA framework. 

B. Federal Court Interpretation of KRS Chapter 337.

In Kaelin, we described KRS Chapter 337 as “Kentucky's analogue to the 

Fair Labor Standards Act, 29 U.S.C. §§ 201–219 [(“FLSA”)].” 212 S.W.3d at 92. 

As such, “[w]e first look to Kentucky jurisprudence and find nothing other than 

the statutes themselves to aid in interpreting the issue which is presented 

before us today. In the absence of any Kentucky cases on point, we next look 

to federal cases interpreting the FLSA.” Id. at 95.

13 Before 2000, the Kentucky General Assembly met in regular sessions in evennumbered years. In 2000, Kentucky established annual regular sessions through 

constitutional amendment. See Ky. Const. § 36 (2000). 
11

Two federal cases directly aid our interpretation. First, the United States 

Supreme Court held, in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 

(2014), that security screenings are noncompensable activities under the FLSA 

since such screenings were not the principal activity or activities which the 

employee is to perform, id. at 35 (citing 29 U.S.C. § 254(a)(1)), and were not 

“‘integral and indispensable’ to the employees’ duties as warehouse workers.” 

Id. The Court noted that “[t]he screenings were not an intrinsic element of 

retrieving products from warehouse shelves or packaging them for shipment. 

And [the employer] could have eliminated the screenings altogether without 

impairing the employees' ability to complete their work.” Id.

Following this decision, the Sixth Circuit Court of Appeals applied the 

Integrity Staffing rationale to a case involving a similar requirement for workers 

to pass through lengthy anti-theft security screenings after clocking out 

without compensation for that time. Vance, 852 F.3d 601. In Vance, the 

court, following a thorough analysis of the history of FLSA, the Portal-to-Portal 

Act, KRS Chapter 337 and applicable federal and state regulations, concluded 

that KRS Chapter 337 incorporates “the Portal-to-Portal Act's compensation 

limits on preliminary and postliminary activities. Integrity Staffing is therefore 

on point.” 852 F.3d at 615.

The Class members argue that this Court, and not the federal courts, are 

the final arbiters of Kentucky law. While that assertion is true, the Class 

Members forget that we are not interpreting statutes for our benefit. Rather, 
12

our goal, as stated previously, is to ascertain and give effect to the legislature’s 

intention. See KRS 446.080(1).

While we agree with the Sixth Circuit’s analysis as to the Portal-to-Portal 

Act’s applicability to KRS Chapter 337, another consideration mandates its 

application. We have often cited the rule of statutory interpretation that “the 

failure of the legislature to change a known judicial interpretation of a statute 

is extremely persuasive evidence of the true legislative intent.” Bloyer v. 

Commonwealth, 647 S.W.3d 219, 225 (Ky. 2022); Kindred Healthcare v. Harper, 

642 S.W.3d 672, 684 (Ky. 2022); Toyota Motor Mfg., Ky., Inc. v. Prichard, 532 

S.W.3d 633, 636 (Ky. 2017); Hughes v. Commonwealth, 87 S.W.3d 850, 856 

(Ky. 2002); Rye v. Weasel, 934 S.W.2d 257, 262 (Ky. 1996). In other words, “a 

strong implication [is created] that the legislature agrees with a prior court 

interpretation of its statute when it does not amend the statute interpreted.” 

Kindred, 642 S.W.3d at 684; Toyota, 532 S.W.3d at 636; Rye, 934 S.W.2d at 

262. This rule of statutory interpretation equally applies when a federal court 

exercising diversity jurisdiction interprets state statutes. See Democratic Party 

v. Graham, 976 S.W.2d 423, 428-29 (Ky. 1998) (holding, in light of a prior 

federal decision interpreting KRS Chapter 121 and subsequent legislative 

reenactment, “the legislature is well aware of the interpretation of the existing 

statute and has adopted that interpretation unless the new law contains 

language to the contrary. . . . If the legislators intended to depart from the 

existing statutory interpretation, it is incumbent that they use ‘plain and 

unmistakable language[.]’”) (internal citations omitted).
13

In this case, after the Sixth Circuit’s 2017 decision in Vance, the 

Kentucky General Assembly has convened five times. It has passed statutory 

amendments to KRS Chapter 337 in 2018, 2019, 2020 and 2021.14 Admittedly 

some of these amendments do not implicate any of the sections at issue in this 

case. But these amendments indicate that the legislature has been proactive

in amending KRS Chapter 337. Furthermore, notwithstanding that some of 

the issues in this case arose more than fifteen years ago, the legislature may

make legislation retroactive, if it so desires. See KRS 446.080(3) (providing 

that “[n]o statute shall be construed to be retroactive, unless expressly so 

declared[]”); Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 36 (Ky. 1991) (holding 

that remedial statutes may have retroactive application).

IV. Conclusion.

At bottom, the Portal-to-Portal Act’s exemptions were incorporated into 

Kentucky law in 1975, when the Department of Workplace Standards applied 

the Portal-to-Portal Act’s exemptions to KRS Chapter 337. Nearly a half 

century of legislative inaction clearly demonstrates that the legislature has 

acquiesced to the Department’s administrative interpretation. In addition, a 

federal case, Vance, addressed a virtually identical factual situation and 

14 Act of Apr. 20, 2022, ch. 236 § 115, 2022 Ky. Acts 2216 (amending KRS 

337.010); Id. ch. 236 § 176 (amending KRS 337.065); Id. ch. 236 § 116 (amending 

KRS 337.075); Act of Apr. 8, 2022, ch. 94 § 3, 2022 Ky. Acts 566 (amending KRS 

337.100); Act of Apr. 12, 2022, ch. 191 § 9, 2022 Ky. Acts 1117 (amending KRS 

337.285); Act of Mar. 29, 2021, ch. 153 § 1, 2021 Ky. Acts 883 (amending KRS 

337.010); Act of Mar. 23, 2021, ch. 76 § 1, 2021 Ky. Acts 412 (amending KRS 

337.015); Act of Feb. 11, 2020, ch. 2 § 1, 2020 Ky. Acts 5 (amending KRS 337.010); 

Act of Apr. 26, 2018, ch. 195 § 1, 2018 Ky. Acts 1671 (amending KRS 337.285).
14

applied the Portal-to-Portal Act’s exemptions to KRS Chapter 337. A contrary 

interpretation would be squarely inconsistent with well-settled law concerning 

the legal force of properly enacted administrative regulations, this Court’s 

precedent regarding the proper application of legislative inaction, and accepted 

principles of statutory interpretation. For these reasons, the decisions of the 

Court of Appeals and the Jefferson Circuit Court holding that preliminary and 

postliminary security screenings required by UPS are not compensable under 

KRS Chapter 337 are affirmed. 

All sitting. VanMeter, C.J.; Bisig, Conley, and Nickell, JJ., concur.

Thompson, J., dissents by separate opinion in which Keller and Lambert, JJ., 

join. 

THOMPSON, J., DISSENTING: This protracted class action litigation 

currently concerns whether Kentucky will adopt the federal law contained in 29 

United States Code (U.S.C.) § 254, known as Section 4 of the Portal-to-Portal 

Act (the Federal Law), and engraft it into our Wage and Hour law. The Federal 

Law exempts from compensation “walking, riding, or traveling to and from the 

actual place of performance of the principal activity or activities which such 

employee is employed to perform, and . . . activities which are preliminary to or 

postliminary to said principal activity or activities,” if they occur prior or 

subsequent to the performance of the employee’s “principal activity or 

activities.” 29 U.S.C. § 254(a).15 If we adopt the Federal Law, the question then 

15 The relevant portion of the Federal Law is contained in 29 U.S.C. § 254(a) 

which explains that the following activities are not compensable:
15

becomes what impact this will have on UPS workers in the class who must 

undergo extensive and potentially lengthy security screenings at the beginning 

and end of their shifts as mandated by federal laws applicable to package 

shipping companies. 

The majority opinion declares that the Federal Law has already been 

incorporated into our Wage and Hour regulations, and determines that as a 

matter of law, it creates a bright-line rule prohibiting compensation for any

type of security screenings. Accordingly, the majority opinion declares that 

such workers must be summarily denied any compensation for the time they 

spend passing through security. The majority opinion thereby concludes that 

under any set of facts, no matter how onerous and time-consuming such 

screenings are or why they are required, employees are required to bear this 

cost of business themselves. 

I vehemently disagree with such an approach. I respectfully dissent from 

the majority opinion as I cannot agree with its reasoning that UPS’s motion for 

(1) walking, riding, or traveling to and from the actual place 

of performance of the principal activity or activities 

which such employee is employed to perform, and

(2) activities which are preliminary to or postliminary to 

said principal activity or activities,

which occur either prior to the time on any particular workday at which 

such employee commences, or subsequent to the time on any particular 

workday at which he ceases, such principal activity or activities . . . .

29 U.S.C. § 254(b) provides enumerated exceptions based on contract and 

custom to the 29 U.S.C. § 254(a) restrictions to compensation, limited by 29 U.S.C. § 

254(c), but I do not discuss these exceptions as they are inapplicable to the facts 

before us. 
16

partial judgment on the pleadings16 was properly granted pursuant to the 

Kentucky Rules of Civil Procedure (CR) 12.03, given the incomplete record 

available and the absence of adequate discovery. Additionally, I believe the 

majority opinion is wrongfully legislating from the bench by engrafting the 

Federal Law into Kentucky’s Wage and Hour laws and then interpreting this 

law expansively to resolve a question that it is premature to address. 

I conclude that under Kentucky’s own standards or the Federal Law that this 

case should have survived the motion for judgment on the pleadings and 

should be reversed and remanded for development of the record. It is well past 

time for this matter, which was originally filed in 2007, to be decided on the 

merits.

I. FACTUAL AND PROCEDURAL BACKGROUND

The class is composed of UPS workers employed at the Worldport, 

Elizabethtown, and Louisville Technical & Logistics Center (LTLC) facilities as 

they were determined to have security procedures and methods in common.

Hughes v. UPS Supply Chain Sols., Inc., 2012-CA-001353-ME, 2013 WL 

4779746, at *5-7 (Ky. App. Sept. 6, 2013).

 The class members generally alleged that they were not being 

appropriately compensated for mandatory worktime which consisted of 

entering and exiting through a security checkpoint, as they could not clock in 

16 The partial summary judgment on the pleadings fully dismissed the class’s 

claims for unpaid wages for all time worked; it did not address the class’s claims for 

illegal disability leave policies, which are apparently still pending.
17

until after entering through a security checkpoint and then had to clock out 

before exiting through a security checkpoint. They alleged that the time spent 

going through the security checkpoints was for the benefit of UPS and was 

uncompensated worktime, which was not de minimis, explaining that “Plaintiffs 

were not free to effectively use the time expended between complying with 

security and clocking-in or out for their own purposes.” Accordingly, they 

generally alleged that UPS violated Kentucky’s Wage and Hour laws and 

regulations.

I focus my discussion on the security screening processes that take place 

for the portion of the class that works at UPS’s Worldport facility. Some 

pertinent information is needed to understand the size and scale of the 

Worldport facility to put into perspective the limited information we have as to 

what its security screening process entails:

UPS WORLDPORT17

17 The data contained in this chart was gleaned from the following sources: 

Louisville Regional Airport Authority, Aviation Statistics: December 2022, 

https://www.flylouisville.com/wp-content/uploads/2023/02/Aviation-Stats-2022-12-

revised-3.pdf; UPS, UPS Air Operation Facts (Revised Jun. 30, 2022), https://about.

ups.com/content/dam/upsstories/assets/fact-sheets/airlines-fact-sheets/AirOperations-Facts-063022.pdf; AeroSavvy, Inside Louisville’s UPS Worldport, https://

aerosavvy.com/ups-worldport/ (last visited Feb. 28, 2023) (Inside Worldport);

Louisville Regional Airport Authority, SDF History, https://www.flylouisville.com/

corporate/sdf-history/ (last visited Feb. 23, 2023); Louisville Regional Airport 

Authority, Economic Impact: Fueling the Regional Economy, https://www.flylouisville.

com/wp content/uploads/2020/10/LRAA-CY2018-Economic-and-Fiscal-Impact-2-

Pager.pdf (last visited Feb. 23, 2023); UPS, UPS Welcomes New Developments in 

Healthcare and Aviation (Nov. 18, 2022), https://about.ups.com/us/en/ourstories/customer-first/ups-breaks-ground-on-louisville-expansions.html. I recognize 

that Worldport has expanded greatly since the class filed suit, so this data is not 

necessarily accurate for the time period at issue, but I provide it nevertheless as our 

decision will affect how employees at Worldport are compensated going forward.
18

Size • 5.2 million square feet (the size of 90 football fields)

• 7.2 miles around its perimeter 

• Larger than Minneapolis’s Mall of America

• ramp size of 300 acres 

Capacity • 125 aircraft parking spots 

• 70 self-parking docks

• 387 in/outbound flights per day 

• Peak capacity of one aircraft arriving each minute

Volume • 416,000 packages/documents per hour

• 2 million packages a day (up to 4 million during the 

Christmas season)

Relative 

Importance

• UPS’s largest facility and company’s main air hub

• second busiest cargo airport in North America 

• fourth busiest cargo airport in the world

Workers • 12,000+ employees work there per day

Statistics for 

2022

• 3+ billion pounds of cargo enplaned and deplaned 

(3,443,107,204 lbs enplaned; 3,249,700,296 lbs 

deplaned)

• 47,365 planes landed
19

This publicly available information shows that this is a massive facility 

with a population and footprint that is equivalent to some smaller Kentucky 

cities.18 A workplace at such a scale is difficult to imagine. 

At this juncture of the litigation, our knowledge about the security 

screening process at Worldport and the other facilities is limited.19 However, 

considering this and my general knowledge that Worldport is at the airport and 

that its employees are working in a facility that has package distribution that is 

loaded and unloaded from airplanes, the security screening process appears to 

be closely analogous to the airport security screenings that passengers undergo 

18 For comparison, the number of employees present every day, about 12,000, 

makes Worldport’s “population” slightly smaller than Kentucky’s 33rd largest city, 

Bardstown, which has a population of 14,028, but around the same size as Kentucky’s 

36th largest city, Somerset, which has a population of 12,143. World Population 

Review, Cities in Kentucky by Population, https://worldpopulationreview.com/states/

cities/kentucky (last visited Feb. 28, 2023).

19 Hughes, 2013 WL 4779746, at *5 briefly recounts this process for the 

Worldport, LTLC and Elizabethtown facilities for purposes of determining if they met 

the requirements of commonality and typicality:

Upon entering the Elizabethtown facility, employees removed personal 

items, passed through a metal detector, and presented any bags for 

search by security personnel. Upon exiting the Elizabethtown facility, 

employees again passed through a metal detector. Upon entering the 

LTLC facility, employees removed personal items, passed through a metal 

detector, and presented any bags for search by security personnel. Upon 

exiting the LTLC facility, employees again passed through a metal 

detector. Upon entering the Worldport facility, employees were required 

to pass through a metal detector and remove all personal belongings. If 

an audible alert sounded, the employee again passed through a metal 

detector and could be wanded by security personnel if another alert 

sounded. The employees at Worldport followed the exact same security 

procedure upon exiting the facility.

This summary appears to be derived from the May 4, 2012, affidavit of Domenic 

DiMauro, Jr., UPS’s Air District Security Manager (DiMauro Affidavit) and the May 3, 

2012, affidavit of Steve Hamm, UPS’s North American Security Director (Hamm 

Affidavit).
20

before they can board commercial flights. There are even a similar number of 

employees and passengers being screened each day.20 The main difference 

appears to be that Worldport employees must undergo this process on both 

ends of their shifts and they have a much farther distance to traverse than

passengers.21

As our passenger screening time varies, I imagine theirs must as well. 

Just as passengers plan ahead for screening time and often arrive far earlier 

than is actually needed to pass through security so that they will not risk (or 

worry about risking) failing to make it to the gate on time, such employees 

likely also need to arrive substantially ahead of time to ensure they can clock 

in on time so as to avoid workplace discipline. 

II. THE JUDGMENT ON THE PLEADINGS SHOULD NOT HAVE BEEN 

GRANTED

From the pleadings, and the class certification process, it appears that 

the security screenings at Worldport differ substantially from those security 

20 Publicly available statistics are that the Louisville Muhammad Ali 

International Airport had more than 3.88 million passengers in 2022, which when 

divided by 365 days, provides an average of about 10,630 passengers per day. 

Louisville Muhammad Ali International Airport, Louisville Muhammad Ali International 

Airport Marks Third Best Year in 2022 (Feb. 7, 2023), https://www .flylouisville.com

/louisville-muhammad-ali-international-airport-marks-third-best-year-in-2022/. 

Thus, there are fewer daily passengers than Worldport’s 12,000 daily employees.

21 The passenger terminals are comprised of just 360,000 square feet. 

Louisville Muhammad Ali International Airport, Louisville Muhammad Ali International 

Airport (SDF), https://www.flylouisville.com/corporate/louisville-muhammad-aliinternational-airport-sdf/ (last visited Feb. 28, 2023). This makes the passenger 

terminals appear tiny next to Worldport. Inside Worldport. According to the DiMauro 

Affidavit, the Worldport employees enter through one of four security entrances or 

through the hanger. How much entering through these entrances may divert 

employees from proceeding directly to their assigned workstations is unclear.
21

screenings that have been deemed non-compensable under the Federal Law. 

Therefore, whether or not the Federal Law applies, disputed issues of fact 

should have precluded granting judgment to UPS on the pleadings. 

Under Kentucky Civil Rule 12.03, “[a]fter the pleadings are closed 

but within such time as not to delay the trial, any party may move 

for judgment on the pleadings.” The moving party “admits for the 

purposes of his motion not only the truth of all his adversary's 

well-pleaded allegations of fact and fair inferences therefrom, but 

also the untruth of all his own allegations which have been denied 

by his adversary.” Pioneer Vill. v. Bullitt Cnty., 104 S.W.3d 757, 

759 (Ky. 2003) (citing Archer, 365 S.W.2d 727). Importantly, a 

motion for judgment on the pleadings should never be granted 

unless “it appears beyond doubt that the nonmoving party cannot 

prove any set of facts that would entitle him/her to relief.” Id.

(citing Spencer v. Woods, 282 S.W.2d 851 (Ky. 1955)). 

Furthermore, as our predecessor Court stated, if “the pleadings 

raise any issue of material fact,” then a judgment on the pleadings 

“should be denied.” La Vielle v. Seay, 412 S.W.2d 587, 590 (Ky. 

1966).

Russell v. Johnson & Johnson, Inc., 610 S.W.3d 233, 240 (Ky. 2020). Joined to 

this basic premise is that fact that under notice pleading, claims need not be 

stated with precision and must be liberally construed. Id. at 241. 

The entitlement to compensation is necessarily fact specific. However, 

very few of the facts have yet been established. While we generally know what 

type of security screening the employees go through, we do not have much 

information about how this process works in practice and how different 

employees are affected by it. We do not know how many employees are lined 

up to go through such screenings before or after their shifts begin, how many 

screening stations there are at each entrance, how long the wait time is to pass 

through such screenings, and how much this may vary between different 
22

shifts, days and other factors.22 We do not know if the length of the delay in 

reaching a workstation is caused by the diverted path needed to pass through 

a screening station, compared to the wait to pass through the screening 

process. 

The information we have about why employees are required to be 

subjected to these particular kinds of screenings is provided in affidavits from 

UPS’s North America Security Director Hamm and UPS’s Air District Security 

Manager DiMauro. They indicate these screenings are mandated for UPS to 

comply with federal regulations from the Transportation Security 

Administration (TSA), which must approve its security program, the Drug 

Enforcement Administration (DEA), and the Food and Drug Administration 

(FDA).23 Hamm Affidavit; DiMauro Affidavit. Additionally, UPS has chosen to 

22 The DiMauro Affidavit indicates that at the Worldport facility “[i]t takes most 

employees only a few seconds to pass through this security screening process.” 

DiMauro does not clarify whether this means that employees essentially walk through 

security gates unimpeded and complete the entire security process in this length of 

time, or if they have to wait to be screened, but each individual screening is typically 

completed within a few seconds. He also does not clarify how long a security 

screening may take if the metal detector alerts or a bag requires closer inspection and 

how that impacts employees waiting to be screened. The Hamm Affidavit, which 

addresses security at LTLC and Elizabethtown, indicates that security processing at 

LTLC and Elizabethtown typically only takes seconds, but that wait times to pass 

through security at LTLC can take up to two minutes (with those times varying by 

building), and that at Elizabethtown wait times can be up to four minutes during peak 

morning rush. The employees alleged that their wait times were not de minimis but 

did not provide any affidavits about their individual experiences with wait times. I 

note that these are all factual questions to be resolved below but whether such time 

must be compensated does not hinge on how long an activity takes.

23 UPS is required by federal regulations to implement security protocols 

mandated by the TSA at its Worldport facility because UPS has entered into an 

agreement with the Louisville International Airport, making it responsible for the areas 

under its exclusive control. DiMauro Affidavit. Certain UPS facilities must also

comply with DEA and FDA regulations to guard against theft and diversion of 

controlled substances. Hamm Affidavit. However, it is unclear from these affidavits 
23

participate in the Customs-Trade Partnership Against Terrorism (C-TPAT), “a 

joint government-business initiative” which “requires member businesses 

involved with the import process to work with the U.S. Customs and Border 

Patrol (CBP) to assess, develop, and implement procedures that ensure tighter 

cargo and supply chain security,” to be C-TPAT certified and validated. 

DiMauro Affidavit. Obtaining such status greatly benefits UPS as “[i]n return 

for implementing [the C-TPAT] security guidelines, C-TPAT partners receive 

expedited processing of their cargo into the United States.” Hamm Affidavit; 

DiMauro Affidavit. Additionally, some of UPS’s customers require certain levels 

of security as part of their contractual agreements with UPS. Hamm Affidavit. 

Without further development of the record, it is unclear which of the

Kentucky Department of Workplace Standards (KDWS) regulations most aptly 

apply to the security screenings at issue. It is also unclear whether such 

regulations would provide compensation for security time, or not. 

Kentucky’s Wage and Hour laws do not squarely address whether going 

through security checkpoints should be considered compensable worktime. 

The most that can be said at this juncture is, “it depends” as such inquiries are 

highly fact dependent. While our Court can interpret what our regulations say, 

we cannot say how these regulations apply to undetermined facts.

whether the Worldport, LTLC, and Elizabethtown facilities are governed by DEA and 

FDA regulations. 
24

III. THE FEDERAL LAW DOES NOT APPLY

The Federal Law exempts from wages “preliminary” and “postliminary”

activities that are not the “principal activity or activities” of the employment. 

Kentucky’s Wage and Hour laws and administrative regulations have never 

used the phrase “portal-to-portal” or used the terms “preliminary” and 

“postliminary” in relation to determining whether something is compensable 

work time. See generally 803 Kentucky Administrative Regulations (KAR) 

1:065; 803 KAR 1:067. These terms are also unknown when it comes to 

employment law in Kentucky unless a claim is being made under the Federal 

Law. 

The KDWS has not explicitly adopted the Federal Law in any form, and I 

firmly believe that the KDWS has not implicitly adopted it either. The only 

significant language our regulations, past and present, share with the Federal 

Law is the use of the term “principal activity.” This term is only used once in 

all of 803 KAR 1:065, in Section 7(3), in the following sentence: “Time spent by

an employee in travel as part of his principal activity, such as travel from job

site to job site during the workday, must be counted as hours worked.” Our 

current administrative regulation pertaining to hours worked, 803 KAR 1:067, 

which was adopted in 2022 and incorporates specific sections of 29 C.F.R. 785

by reference, also only uses the term “principal activity” once, in 29 C.F.R. 

785.38, stating “[t]ime spent by an employee in travel as part of 

his principal activity, such as travel from job site to job site during the 

workday, must be counted as hours worked.” For both regulations then, this 
25

language is used to make such time compensable, rather than to exclude it 

from compensation as the term does in the Federal Law.

The sections of the federal regulations that the KDWS chose to adopt and 

failed to adopt through 803 KAR 1:067, also support my reasoning. The KDWS 

failed to adopt any section of 29 C.F.R. 785 which either clearly references the 

Federal Law, see 29 C.F.R. 785.9, 785.24 and 785.50 (extensively quoting from 

and interpreting the applicability of the Portal-to-Portal Act), or any provisions 

that reference it more discretely. See 29 C.F.R. 785.7, 785.26 and 785.34. The 

only C.F.R. section 803 KAR 1:067 adopts which even makes mention of the 

Federal Law, 29 C.F.R. 785.33, only does so in referring to another (unadopted) 

regulation, 29 C.F.R. 785.34.24 803 KAR 1:067 § 7 specifically declined to 

adopt 29 C.F.R. 785.34, while adopting the adjoining regulations of 29 C.F.R. 

785.33, 785.35, 785.38, and 785.39. I believe such action indicates that there 

was never any prior intent to adopt or follow the Federal Law.

Accordingly, I strongly disagree with the majority opinion that our 

regulations, past and present, which contain the singular use of the term 

“principal activity” as detailed, supra, should be interpreted as an implicit 

adoption of the Federal Law with its concomitant elimination of time subject to 

compensation, as the Sixth Circuit did in Vance v. Amazon.com, Inc. (In re 

24 29 C.F.R. 785.33 is a general regulation on travel time which states in full: 

The principles which apply in determining whether or not time spent in 

travel is working time depend upon the kind of travel involved. The 

subject is discussed in §§ 785.35 to 785.41, which are preceded by a 

brief discussion in § 785.34 of the Portal-to-Portal Act as it applies to 

travel time.
26

Amazon.com, Inc., Fulfillment Ctr. Fair Lab. Standards Act (FLSA) & Wage & 

Hour Litg.), 852 F.3d 601, 613 (6th Cir. 2017). I additionally disagree with the 

majority opinion’s assertion, which goes beyond the reasoning in Vance, that 

“[f]or nearly half a century, the Kentucky Department of Workplace Standards 

has concluded that the Portal-to-Portal Act’s compensation limits are part of 

the KRS Chapter 337 framework.” 

The majority opinion’s reliance on Vance for this proposition is 

misplaced. The Sixth Circuit in Vance specifically acknowledged that the 

litigants agreed that the question of whether the Kentucky Wage and Hours Act

incorporates the Federal Law was unsettled; it implicitly agreed but chose not 

to certify such a question to our Court based on the advanced state of the 

litigation. Vance, 852 F.3d at 607-08. Therefore, Vance does not provide any 

authority for the majority’s conclusion that the Federal Law has clearly been 

incorporated into our regulations. 

Additionally, this federal opinion is not binding on us and not 

particularly persuasive. It is hardly surprising that a federal court might wish 

to apply the Federal Law and the case law interpreting it where Kentucky has 

not yet interpreted its own regulations. 

I am further unmoved by the majority’s conclusion that “legislative 

inaction here supports the conclusion that KRS Chapter 337 imports the 

Portal-to-Portal Acts exemptions” because the legislature has not acted in the 

more than thirty times it has convened in regular session to overrule the KDWS 

since it first incorporated the Federal Law into our statutes. As noted in 
27

Shawnee Telecom Res., Inc. v. Brown, 354 S.W.3d 542, 560 (Ky. 2011), 

“legislative inaction is a weak reed upon which to lean, and a poor beacon to 

follow in construing a statute.” I believe this observation to be even more apt 

when it comes to construing a regulation in a manner in which it has never 

been interpreted before. 

Finally, even were I in error in my conclusion that the KDWS has never 

implicitly incorporated the Federal Law via regulations, the KDWS has certainly 

not incorporated the Federal Law in such a clear manner that the General 

Assembly should be on notice that such an incorporation took place. 

Furthermore, there have been no Kentucky cases prior to this one to alert the 

General Assembly that this is how these regulations are being construed by 

Kentucky’s appellate courts.

IV. KENTUCKY’S APPLICABLE WAGE AND HOUR REGULATIONS, WHEN 

APPLIED TO THE RELEVENT FACTS, MAY WARRANT RELIEF

So, what do our applicable regulations require? 803 KAR 1:065, which 

expired in 2020 but was in effect at the time the litigation commenced, 

contains definitions relating to worktime and is applicable to this litigation and 

the timeframe at issue. However, for simplicity, I focus my discussion on the 

current regulations for hours worked, as they are very similar to our former 

regulations and use nearly identical pertinent phrasing, but I also quote from 

the former regulations in footnotes.

803 KAR 1:067 Section 3, concerning waiting time, adopts 29 C.F.R. 

785.13 through 785.17. 29 C.F.R. 785.14 notes that it is a fact specific inquiry 
28

as to whether an employee was engaged to wait or waited to be engaged.25 29 

C.F.R. 785.15 explains an employee is on duty and working while waiting for 

the next task if the periods of inactivity are “unpredictable” and “are usually of 

short duration.” Key to such times is that “the employee is unable to use the 

time effectively for his own purposes. It belongs to and is controlled by the 

employer. In all of these cases waiting is an integral part of the job. The 

employee is engaged to wait.” Id.26 

In defining “off duty” in 29 C.F.R. 785.16, the regulation contrasts hours 

not worked as those “[p]eriods during which an employee is completely relieved 

from duty and which are long enough to enable him to use the time effectively 

for his own purposes” with hours worked when such employee “is not 

completely relieved from duty and cannot use the time effectively for his own 

purposes[.]”27 29 C.F.R. 785.16(b) explains that a truck driver who has to wait 

25 Similarly, 803 KAR 1:065 § 3(1), regarding waiting time states in relevant 

part:

Whether waiting time is worked under the act depends 

upon particular circumstances. . . . Facts may show that 

the employee was engaged to wait, or they show that he 

waited to be engaged. Such questions must be determined 

in accordance with common sense and the general concept 

of work or employment.

26 This is consistent with 803 KAR 1:065 § 3(2) which provides examples of 

when an employee is “on duty” while waiting during a period of inactivity, such as 

when employees engage in personal activities while waiting an unpredictable amount 

of time for an assignment or for machinery to be repaired. Importantly, this section 

notes during these periods “the employee is unable to use the time effectively for his 

own purpose. It belongs to and is controlled by the employer. In all of these cases 

waiting is an integral part of the job. The employee is engaged to wait.” Id.

27 Similarly, in 803 KAR 1:065 § 3(3)(a), “off duty periods” are times “during 

which an employee is completely relieved from duty and which are long enough to 
29

at or near the job site for goods to be loaded and at the final destination to take 

care of the employer’s property before a return trip is working as such 

employee is engaged to wait.28 This contrast, between being able to use time 

effectively for the employee’s own purposes as compared with the employer’s 

purposes, is raised again as to whether in 29 C.F.R. 785.17 on-call time is 

work. 

803 KAR 1:067 section 7, which contains the current travel time 

regulation, adopts 29 C.F.R. 785.33, 785.35, 785.38 and 785.39. 29 C.F.R. 

785.35 explains that the ordinary commute from home to work and back again 

is not worktime.29 29 C.F.R. 785.38 explains that in contrast “[t]ime spent by 

an employee in travel as part of his principal activity, such as travel from job 

site to job site during the workday, must be counted as hours worked.”30 29 

enable him to use the time effectively for his own purposes are not hours worked.” 

This section clarifies:

[An employee] is not completely relieved from duty and cannot use the 

time effectively for his own purposes unless he is definitely told in 

advance that he may leave the job and that he will not have to commence 

work until a definitely specified hour has arrived. Whether the time is 

long enough to enable him to use the time effectively for his own 

purposes depends upon all of the facts and circumstances of the case.

28 803 KAR 1:065 § 3(3)(b) provides a similar trucker scenario.

29 Similarly, 803 KAR 1:065 § 7(2) explains that “[n]ormal travel from home to 

work is not worktime.” 

30 803 KAR 1:065 § 7(3) explains “travel that is worktime” as follows:

Time spent by an employee in travel as part of his principal activity,

such as travel from job site to job site during the workday, must be

counted as hours worked. Where an employee is required to report at 

a meeting place to receive instructions or to perform other work there, 

the travel from the designated place to the work place is part of the 

day’s work, and must be counted as hours worked.
30

C.F.R. 785.38 provides examples of when travel time is work time as including 

when “an employee is required to report at a meeting place to receive 

instructions . . . or to pick up and to carry tools[.]” 

803 KAR 1:067 section 6, while at first blush is not directly applicable, 

as it establishes the requirements for lectures, meetings and training programs 

by incorporating 29 C.F.R. 785.27 through 785.32, also provides additional 

clarity in the difference between work and non-work hours. The basic 

distinction between work and non-work hours is that when attendance is 

involuntary because it is required, these are work hours, 29 C.F.R. 785.28, 

while if attendance is voluntary and the employee engages in such activity that 

is not directly related to the job and does not take place during work hours,

such time is not compensable as work, 29 C.F.R. 785.29.31

As should be evident from this review, going through security 

checkpoints does not perfectly fit into these categories but the purpose of this 

security time and what employees can or cannot do during this time, and the 

fact that this process is required by the employer, is highly relevant to 

The wording of both 29 C.F.R. 785.38 and 803 KAR 1:065 § 7(3) raises the question as 

to whether a security checkpoint is one job site which must be traveled from to reach 

another job site, where the employee commences work, or if the security checkpoint 

could be considered part of a larger job site, with going through security being part of 

the principal activity.

31 803 KAR 1:065 § 6(1) provides four specific criteria that must be met for 

attendance at lectures, meetings and trainings to not be considered “working time.” 

Among these are that attendance is voluntary. In defining “involuntary attendance,” 

803 KAR 1:065 § 6(1) explains: “Attendance is not voluntary if it is required by the 

employer. It is not voluntary if the employee is given to understand or led to believe 

that his present working conditions or the continuance of his employment would be 

adversely affected by nonattendance.”
31

determining whether it is compensable. I believe under the KDWS regulations

that the employees’ allegations are more than sufficient to maintain this action 

for unpaid wages for the time they mandatorily must spend passing through 

security for UPS’s benefit. However, whether this time is definitively

compensable cannot be resolved at this juncture. 

V. EVEN IF THE FEDERAL LAW APPLIES, REVERSAL FOR FURTHER 

FINDINGS IS STILL WARRANTED

Even assuming that the majority opinion is correct that our legislature or 

the KDWS have sub silentio adopted the Federal Law generally (a conclusion 

that I strongly disagree with), the majority opinion errs in its application of it at 

this juncture with the limited record before us. The United States Supreme 

Court concluded in Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27, 37, (2014), 

that anti-theft security screenings upon leaving work are not “integral and 

indispensable to the principal activities that an employee is employed to 

perform” as such screenings are not “an intrinsic element of those activities 

and one with which the employee cannot dispense if he is to perform his 

principal activities.” Vance followed this reasoning, also, for Amazon’s antitheft security screenings. 

However, even if these cases were to apply, strong distinguishing factors 

here are that the limited evidence we have is that UPS’s screenings at its 

Worldport facility were not principally for anti-theft purposes and that these 

screening processes took place at both ends of the workday. Vance specifically 

disclaimed that the security screening which only occurred after the employees 
32

completed their work, could be characterized as either travel from job site to 

job site or as wait time, “because [the employees] do not perform or anticipate 

performing other principal job activities after the screening.” 852 F.3d at 615. 

These distinguishing factors alone, should have compelled a reversal.

More apt of a comparison to the situation at hand can be found in 

Steiner v. Mitchell, 350 U.S. 247, 247, (1956), a “case which raise[d] the issue of 

coverage under the Fair Labor Standards Act, as Amended by the Portal-toPortal Act . . . with respect to work performed before or after the direct or 

productive labor for which the worker is primarily paid.” 

The precise question [in Steiner] [was] whether workers in a battery 

plant must be paid as a part of their ‘principal’ activities for the 

time incident to changing clothes at the beginning of the shift and 

showering at the end, where they must make extensive use of 

dangerously caustic and toxic materials, and are compelled by 

circumstances, including vital considerations of health hygiene, to 

change clothes and to shower in facilities which state law requires 

their employer to provide, or whether these activities are 

‘preliminary’ or ‘postliminary’ within the meaning of the Portal-toPortal Act and, therefore, not to be included in measuring the work 

time for which compensation is required under the Fair Labor 

Standards Act.

Id. The specific hazards employees faced in Steiner was exposure to lead in 

various forms and sulphuric acid. Id. at 249-50.

Relevant considerations for the Supreme Court included that showering 

and changing clothes was mandated by state law, was also a requirement of 

the employer being able to obtain workers compensation insurance, and that 

such practices were needed for the employees’ health. The Supreme Court 

recounted that the “[s]afe operation [of the battery plant] . . . requires the 

removal of clothing and showering at the end of the work period. This has 
33

become a recognized part of industrial hygiene programs in the industry, and 

the state law of Tennessee requires facilities for this purpose.” Id. at 250, 

(emphasis added). The Supreme Court noted that the employer’s requirement 

that the workers change clothing and shower was also needed so the employer 

could obtain the legally mandated workers compensation insurance which 

covered lead poisoning as a compensable occupational disease because “the 

insurance carrier would not accept the insurance risk if defendants refused to 

have showering and clothes-changing facilities for their employees.” Id. at 251. 

Finally, the Supreme Court recounted that “the employees testified and the 

foreman declared in a signed statement that ‘In the afternoon the men are 

required by the company to take a bath because lead oxide might be absorbed 

into the blood stream. It protects the company and the employee both.’” Id. at

251.

Given this evidence, the Supreme Court concluded that changing clothes 

before and showering after a shift under these circumstances was “an integral 

and indispensable part of the principal activities for which covered workmen 

are employed and are not specifically excluded by Section 4(a) (1) [of the Portalto-Portal Act][,]” reasoning “it would be difficult to conjure up an instance 

where changing clothes and showering are more clearly an integral and 

indispensable part of the principal activity of the employment than in the case 

of these employees.” Id. at 256. 

Another illustrative case is that of Mitchell v. King Packing Co., 350 U.S. 

260 (1956). In Mitchell, knifemen at a meatpacking plant were required to 
34

sharpen their knives outside of their work shifts so that the knives would be 

sharp enough to perform butchering tasks. Id. at 262. The Supreme Court 

ruled:

We believe the facts clearly demonstrate that the knife-sharpening 

activities of these workmen are an integral part of and 

indispensable to the various butchering activities for which they 

were principally employed, and that they must be compensated for 

by respondent in compliance with the Fair Labor Standards Act, as 

amended by the Portal-to-Portal Act, and as construed by us today 

in Steiner v. Mitchell.

Id. at 263. 

Similarly, I believe that any employee in the class who must pass 

through security screenings so that UPS can (1) comply with mandatory TSA, 

DEA and FDA regulations, (2) satisfy C-TPAT screening requirements (thus 

gaining expedited customs processing for the packages it imports, resulting in 

the rapid delivery customers have come to expect), and (3) honor whatever 

additional screening requirements for which its shipping partners have 

contracted, may be entitled to compensation for this time. If these 

requirements apply to the security screenings the workers in the class are 

required to complete, then if the employees did not pass through such security,

UPS could not lawfully, expeditiously, or contractually conduct its shipping

business. By going through such screenings, employees facilitate and make 

possible the performance of UPS’s packaging shipping business in general and, 

thus, this time may be characterized as integral and indispensable to the 
35

employee’s principal activities for UPS even under the rigorous standards of the 

Federal Law.32 

VI. CONCLUSION

I disagree with the majority opinion’s conclusion that the grant of partial 

judgment on the pleadings was appropriate. I believe I have amply established 

that there are potential facts that the workers could prove that would entitle 

them to relief. Just as the battery plant workers could not assemble batteries 

without changing their clothing and showering, and the knifemen could not 

butcher without sharpening their knives, the as yet undetermined facts may 

establish that UPS could not ship its packages without its employees going 

through such security screenings. Accordingly, I would reverse and remand for 

further factual findings and proceedings. 

Keller and Lambert, JJ., join.

COUNSEL FOR APPELLANTS:

Andrew Michael Grabhorn

Michael Douglas Grabhorn

Grabhorn Law

Andrew John Horne

Horne Law Office

32 Of course, not all of these requirements may be necessary for such 

screenings to still be integral and indispensable to the employee’s principal activities.
36

COUNSEL FOR APPELLEES:

Samuel Benjamin Goldstein

Joseph Russell Palmore

Morrison & Foerster, LLP

Kyle Donald Johnson

Charles Laurence Woods, III

Frost Brown Todd, LLC

John Choate Roach

Ransdell Roach & Royce, PLLC

COUNSEL FOR AMICUS, AIRLINES

FOR AMERICA:

James Burton Lind

Vorys, Sater, Seymour & Pease, LLP

COUNSEL FOR AMICUS, CHAMBER

OF COMMERCE OF THE UNITED 

STATES OF AMERICA:

Philip Williamson

Taft Stettinius & Hollister, LLP

COUNSEL FOR AMICUS, INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL UNION 369:

Benjamin Sequoyah Basil

Schulz Messex Dermody, PLLC

COUNSEL FOR AMICUS, INTERNATIONAL

BROTHERHOOD OF TEAMSTERS LOCAL 783:

Jerome Park Prather

Garmer & Prather, PLLC
37

COUNSEL FOR AMICUS, KENTUCKY CHAMBER

OF COMMERCE:

Philip Williamson

Taft Stettinius & Hollister, LLP

COUNSEL FOR AMICUS, KENTUCKY EQUAL

JUSTICE CENTER:

John Saoirse Friend

Friend Law, PSC

COUNSEL FOR AMICUS, KENTUCKY 

JUSTICE ASSOCIATION:

Michele Diane Henry

Craig Henry, PLC

COUNSEL FOR AMICUS, KENTUCKY RETAIL

FEDERATION:

Philip Williamson

Taft Stettinius & Hollister, LLP

COUNSEL FOR AMICUS, NATIONAL 

RETAIL FEDERATION:

Philip Williamson

Taft Stettinius & Hollister, LLP