The minimum requirements for employers paying overtime pay are dictated by the Fair Labor Standards Act. The FLSA requires overtime pay for certain classes of employees and exempts others, including “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements.”
But what about “service advisors”? Those car dealership employees, who, according to Supreme Court Justice Ruth Bader Ginsburg, “neither sell automobiles nor service (i.e., repair or maintain) vehicles … Rather, they ‘meet and greet [car] owners’; ‘solicit and sugges[t]’ repair services ‘to remedy the [owner’s] complaints’; ‘solicit and suggest … supplemental [vehicle] service[s]’; and provide owners with cost estimates”? Do they get overtime pay?
Sales and Service
Hector Navarro and a group of current and former service advisors at a Mercedes-Benz dealership in California, not seeing “service advisors” as an exempted class under the FLSA believed they were entitled to overtime pay and Encino Motorcars in 2012. The suit was twice dismissed by federal judges, twice reinstated but the Ninth Circuit, and this was the Supreme Court’s second crack at it.
The case presents a classic case of statutory interpretation. The job title of “service advisor” is clearly not among those exempted from overtime compensation under the FLSA. But they question remained: Should they be?
The Exact Nature of Words (and the Lack Thereof)
Justice Ginsburg, in her dissent, clearly thought not. “Because service advisors neither sell nor repair automobiles,” she contended, “they should remain outside the exemption and within the act’s coverage.” Charles Pierce described the role thusly: “The service advisor is the guy who greets you when you show up for new brake pads, tells you what brake pads are available for your particular vehicle, and then shows you where the vending machines are while you wait.” A service advisor doesn’t sell you the car, nor does he or shed the actual servicing, the argument goes, so that employee should be paid overtime wages for overtime work.
But Justice Clarence Thomas, writing for the majority, disagreed. “The ordinary meaning of ‘salesman’,” he wrote, “is someone who sells goods or services … Service advisors do precisely that. As this court previously explained, service advisors ‘sell [customers] services for their vehicles.'” (This despite a 2011 Department of Labor rule which interpreted “salesman” to exclude service advisors.) In the apparent absence of specificity from the FLSA’s text, Justice Thomas found a zen-like repose: “If the text is clear, it needs no repetition in the legislative history; and if the text is ambiguous, silence in the legislative history cannot lend any clarity.”
“If you ask the average customer who services his car,” Justice Thomas rhetorically posed, “the primary, and perhaps only, person he is likely to identify is his service advisor.” Thus, Navarro and other service advisors are left to wonder why a customer’s misconception about who is actually working under the hood of their car should be a determining reason why they don’t get paid for OT.