Encino Motorcars, LLC v. Navarro

(Slip Opinion)              OCTOBER TERM, 2017                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

      ENCINO MOTORCARS, LLC v. NAVARRO ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE NINTH CIRCUIT

    No. 16–1362. Argued January 17, 2018—Decided April 2, 2018
Respondents, current and former service advisors for petitioner Encino
  Motorcars, LLC, sued petitioner for backpay, alleging that petitioner
  violated the Fair Labor Standards Act (FLSA) by failing to pay them
  overtime. Petitioner moved to dismiss, arguing that service advisors
  are exempt from the FLSA’s overtime-pay requirement under 29
  U. S. C. §213(b)(10)(A), which applies to “any salesman, partsman, or
  mechanic primarily engaged in selling or servicing automobiles,
  trucks, or farm implements.” The District Court agreed and dis-
  missed the suit. The Court of Appeals for the Ninth Circuit reversed.
  It found the statute ambiguous and the legislative history inconclu-
  sive, and it deferred to a 2011 Department of Labor rule that inter-
  preted “salesman” to exclude service advisors. This Court vacated
  the Ninth Circuit’s judgment, holding that courts could not defer to
  the procedurally defective 2011 rule, Encino Motorcars, LLC v. Na-
  varro, 579 U. S. ___, ___–___ (Encino I), but not deciding whether the
  exemption covers service advisors, id., at ___. On remand, the Ninth
  Circuit again held that the exemption does not include service advi-
  sors.
Held: Because service advisors are “salesm[e]n . . . primarily engaged in
 . . . servicing automobiles,” they are exempt from the FLSA’s over-
 time-pay requirement. Pp. 5–11.
     (a) A service advisor is obviously a “salesman.” The ordinary
 meaning of “salesman” is someone who sells goods or services, and
 service advisors “sell [customers] services for their vehicles,” Encino
 I, supra, at ___. P. 6.
     (b) Service advisors are also “primarily engaged in . . . servicing au-
 tomobiles.” “Servicing” can mean either “the action of maintaining or
 repairing a motor vehicle” or “[t]he action of providing a service.” 15
2               ENCINO MOTORCARS, LLC v. NAVARRO

                                  Syllabus

    Oxford English Dictionary 39. Service advisors satisfy both defini-
    tions because they are integral to the servicing process. They “mee[t]
    customers; liste[n] to their concerns about their cars; sugges[t] repair
    and maintenance services; sel[l] new accessories or replacement
    parts; recor[d] service orders; follo[w] up with customers as the ser-
    vices are performed (for instance, if new problems are discovered);
    and explai[n] the repair and maintenance work when customers re-
    turn for their vehicles.” Encino I, supra, at ___. While service advi-
    sors do not spend most of their time physically repairing automobiles,
    neither do partsmen, who the parties agree are “primarily engaged in
    . . . servicing automobiles.” Pp. 6–7.
        (c) The Ninth Circuit invoked the distributive canon—matching
    “salesman” with “selling” and “partsman [and] mechanic” with “[ser-
    vicing]”—to conclude that the exemption simply does not apply to
    “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” But
    the word “or,” which connects all of the exemption’s nouns and ger-
    unds, is “almost always disjunctive.” United States v. Woods, 571
    U. S. 31, 45. Using “or” to join “selling” and “servicing” thus suggests
    that the exemption covers a salesman primarily engaged in either ac-
    tivity.
         Statutory context supports this reading. First, the distributive
    canon has the most force when one-to-one matching is present, but
    here, the statute would require matching some of three nouns with
    one of two gerunds. Second, the distributive canon has the most force
    when an ordinary, disjunctive reading is linguistically impossible.
    But here, “salesman . . . primarily engaged in . . . servicing automo-
    biles” is an apt description of a service advisor. Third, a narrow dis-
    tributive phrasing is an unnatural fit here because the entire exemp-
    tion bespeaks breadth, starting with “any” and using the disjunctive
    “or” three times. Pp. 7–9.
        (d) The Ninth Circuit also invoked the principle that exemptions to
    the FLSA should be construed narrowly. But the Court rejects this
    principle as a guide to interpreting the FLSA. Because the FLSA
    gives no textual indication that its exemptions should be construed
    narrowly, they should be given a fair reading. P. 9.
        (e) Finally, the Ninth Circuit’s reliance on two extraneous sources
    to support its interpretation—the 1966–1967 Occupational Outlook
    Handbook and the FLSA’s legislative history—is unavailing. Pp. 9–
    11.
845 F. 3d 925, reversed and remanded.

  THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, ALITO, and GORSUCH, JJ., joined. GINSBURG, J., filed a dis-
senting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
                       Cite as: 584 U. S. ____ (2018)                              1

                            Opinion of the Court

    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash­
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                  _________________

                                  No. 16–1362
                                  _________________


     ENCINO MOTORCARS, LLC, PETITIONER v.

           HECTOR NAVARRO, ET AL. 

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

            APPEALS FOR THE NINTH CIRCUIT

                                [April 2, 2018]


  JUSTICE THOMAS delivered the opinion of the Court.
  The Fair Labor Standards Act (FLSA), 52 Stat. 1060, as
amended, 29 U. S. C. §201 et seq., requires employers to
pay overtime compensation to covered employees. The
FLSA exempts from the overtime-pay requirement “any
salesman, partsman, or mechanic primarily engaged in
selling or servicing automobiles” at a covered dealership.
§213(b)(10)(A). We granted certiorari to decide whether
this exemption applies to service advisors—employees at
car dealerships who consult with customers about their
servicing needs and sell them servicing solutions. We
conclude that service advisors are exempt.
                            I

                            A

  Enacted in 1938, the FLSA requires employers to pay
overtime to covered employees who work more than 40
hours in a week. 29 U. S. C. §207(a). But the FLSA ex­
empts many categories of employees from this require­
ment. See §213. Employees at car dealerships have long
been among those exempted.
  Congress initially exempted all employees at car dealer­
2          ENCINO MOTORCARS, LLC v. NAVARRO

                     Opinion of the Court

ships from the overtime-pay requirement. See Fair Labor
Standards Amendments of 1961, §9, 75 Stat. 73. Congress
then narrowed that exemption to cover “any salesman,
partsman, or mechanic primarily engaged in selling or
servicing automobiles, trailers, trucks, farm implements,
or aircraft.” Fair Labor Standards Amendments of 1966,
§209, 80 Stat. 836. In 1974, Congress enacted the version
of the exemption at issue here. It provides that the
FLSA’s overtime-pay requirement does not apply to “any
salesman, partsman, or mechanic primarily engaged in
selling or servicing automobiles, trucks, or farm imple­
ments, if he is employed by a nonmanufacturing estab­
lishment primarily engaged in the business of selling such
vehicles or implements to ultimate purchasers.”
§213(b)(10)(A).
   This language has long been understood to cover service
advisors. Although the Department of Labor initially
interpreted it to exclude them, 35 Fed. Reg. 5896 (1970)
(codified at 29 CFR §779.372(c)(4) (1971)), the federal
courts rejected that view, see Brennan v. Deel Motors, Inc.,
475 F. 2d 1095 (CA5 1973); Brennan v. North Bros. Ford,
Inc., 76 CCH LC ¶33, 247 (ED Mich. 1975), aff ’d sub nom.
Dunlop v. North Bros. Ford, Inc., 529 F. 2d 524 (CA6 1976)
(table). After these decisions, the Department issued an
opinion letter in 1978, explaining that service advisors are
exempt in most cases. See Dept. of Labor, Wage & Hour
Div., Opinion Letter No. 1520 (WH–467) (1978), [1978–
1981 Transfer Binder] CCH Wages–Hours Administrative
Rulings ¶31,207. From 1978 to 2011, Congress made no
changes to the exemption, despite amending §213 nearly a
dozen times. The Department also continued to acquiesce
in the view that service advisors are exempt. See Dept. of
Labor, Wage & Hour Div., Field Operations Handbook,
Insert No. 1757, 24L04(k) (Oct. 20, 1987), online at
https://perma.cc/5GHD-KCJJ (as last visited Mar. 28,
2018).
                  Cite as: 584 U. S. ____ (2018)             3

                      Opinion of the Court

   In 2011, however, the Department reversed course. It
issued a rule that interpreted “salesman” to exclude ser­
vice advisors. 76 Fed. Reg. 18832, 18859 (2011) (codified
at 29 CFR §779.372(c)). That regulation prompted this
litigation.
                               B
   Petitioner Encino Motorcars, LLC, is a Mercedes-Benz
dealership in California. Respondents are current and
former service advisors for petitioner. Service advisors
“interact with customers and sell them services for their
vehicles.” Encino Motorcars, LLC v. Navarro, 579 U. S.
___, ___ (2016) (Encino I) (slip op., at 2). They “mee[t]
customers; liste[n] to their concerns about their cars;
sugges[t] repair and maintenance services; sel[l] new
accessories or replacement parts; recor[d] service orders;
follo[w] up with customers as the services are performed
(for instance, if new problems are discovered); and ex­
plai[n] the repair and maintenance work when customers
return for their vehicles.” Ibid.
   In 2012, respondents sued petitioner for backpay. Rely­
ing on the Department’s 2011 regulation, respondents
alleged that petitioner had violated the FLSA by failing to
pay them overtime. Petitioner moved to dismiss, arguing
that service advisors are exempt under §213(b)(10)(A).
The District Court agreed with petitioner and dismissed
the complaint, but the Court of Appeals for the Ninth
Circuit reversed. Finding the text ambiguous and the
legislative history “inconclusive,” the Ninth Circuit de­
ferred to the Department’s 2011 rule under Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U. S. 837 (1984). Encino, 780 F. 3d 1267, 1275 (2015).
   We granted certiorari and vacated the Ninth Circuit’s
judgment. We explained that courts cannot defer to the
2011 rule because it is procedurally defective. See Encino
I, 579 U. S., at ___–___ (slip op., at 8–12). Specifically, the
4           ENCINO MOTORCARS, LLC v. NAVARRO

                      Opinion of the Court

regulation undermined significant reliance interests in the
automobile industry by changing the treatment of service
advisors without a sufficiently reasoned explanation. Id.,
at ___ (slip op., at 10). But we did not decide whether,
without administrative deference, the exemption covers
service advisors. Id., at ___ (slip op., at 12). We remanded
that issue for the Ninth Circuit to address in the first
instance. Ibid.
                               C
  On remand, the Ninth Circuit again held that the ex­
emption does not include service advisors. The Court of
Appeals agreed that a service advisor is a “ ‘salesman’ ” in
a “generic sense,” 845 F. 3d 925, 930 (2017), and is “ ‘pri­
marily engaged in . . . servicing automobiles’ ” in a “general
sense,” id., at 931. Nonetheless, it concluded that “Con­
gress did not intend to exempt service advisors.” Id., at
929.
  The Ninth Circuit began by noting that the Depart­
ment’s 1966–1967 Occupational Outlook Handbook listed
12 job titles in the table of contents that could be found at
a car dealership, including “automobile mechanics,” “au­
tomobile parts countermen,” “automobile salesmen,” and
“automobile service advisors.” Id., at 930. Because the
FLSA exemption listed three of these positions, but not
service advisors, the Ninth Circuit concluded that service
advisors are not exempt. Ibid. The Ninth Circuit also
determined that service advisors are not primarily en­
gaged in “servicing” automobiles, which it defined to mean
“only those who are actually occupied in the repair and
maintenance of cars.” Id., at 931. And the Ninth Circuit
further concluded that the exemption does not cover
salesmen who are primarily engaged in servicing. Id., at
933. In reaching this conclusion, the Ninth Circuit in­
voked the distributive canon. See A. Scalia & B. Garner,
Reading Law 214 (2012) (“Distributive phrasing applies
                 Cite as: 584 U. S. ____ (2018)            5

                     Opinion of the Court

each expression to its appropriate referent”). It reasoned
that “Congress intended the gerunds—selling and servic­
ing—to be distributed to their appropriate subjects—
salesman, partsman, and mechanic. A salesman sells; a
partsman services; and a mechanic services.” Id., at 934.
Finally, the Court of Appeals noted that its interpretation
was supported by the principle that exemptions to the
FLSA should be construed narrowly, id., at 935, and the
lack of any “mention of service advisors” in the legislative
history, id., at 939.
  We granted certiorari, 582 U. S. ___ (2017), and now
reverse.
                               II
    The FLSA exempts from its overtime-pay requirement
“any salesman, partsman, or mechanic primarily engaged
in selling or servicing automobiles, trucks, or farm imple­
ments, if he is employed by a nonmanufacturing estab­
lishment primarily engaged in the business of selling such
vehicles or implements to ultimate purchasers.”
§213(b)(10)(A). The parties agree that petitioner is a
“nonmanufacturing establishment primarily engaged in
the business of selling [automobiles] to ultimate purchas­
ers.” The parties also agree that a service advisor is not a
“partsman” or “mechanic,” and that a service advisor is
not “primarily engaged . . . in selling automobiles.” The
question, then, is whether service advisors are “salesm[e]n
. . . primarily engaged in . . . servicing automobiles.” We
conclude that they are. Under the best reading of the text,
service advisors are “salesm[e]n,” and they are “primarily
engaged in . . . servicing automobiles.” The distributive
canon, the practice of construing FLSA exemptions nar­
rowly, and the legislative history do not persuade us
otherwise.
6           ENCINO MOTORCARS, LLC v. NAVARRO

                      Opinion of the Court 


                              A

  A service advisor is obviously a “salesman.” The term
“salesman” is not defined in the statute, so “we give the
term its ordinary meaning.” Taniguchi v. Kan Pacific
Saipan, Ltd., 566 U. S. 560, 566 (2012). The ordinary
meaning of “salesman” is someone who sells goods or
services. See 14 Oxford English Dictionary 391 (2d ed.
1989) (“[a] man whose business it is to sell goods or con­
duct sales”); Random House Dictionary of the English
Language 1262 (1966) (“a man who sells goods, services,
etc.”). Service advisors do precisely that. As this Court
previously explained, service advisors “sell [customers]
services for their vehicles.” Encino I, 579 U. S., at ___ (slip
op., at 2).
                                B
  Service advisors are also “primarily engaged in . . .
servicing automobiles.” §213(b)(10)(A). The word “servic­
ing” in this context can mean either “the action of main­
taining or repairing a motor vehicle” or “[t]he action of
providing a service.” 15 Oxford English Dictionary, at 39;
see also Random House Dictionary of the English Lan­
guage, at 1304 (“to make fit for use; repair; restore to
condition for service”). Service advisors satisfy both defi­
nitions. Service advisors are integral to the servicing
process. They “mee[t] customers; liste[n] to their concerns
about their cars; sugges[t] repair and maintenance ser­
vices; sel[l] new accessories or replacement parts; recor[d]
service orders; follo[w] up with customers as the services
are performed (for instance, if new problems are discov­
ered); and explai[n] the repair and maintenance work
when customers return for their vehicles.” Encino I, su-
pra, at ___ (slip op., at 2). If you ask the average customer
who services his car, the primary, and perhaps only, per­
son he is likely to identify is his service advisor.
  True, service advisors do not spend most of their time
                  Cite as: 584 U. S. ____ (2018)              7

                      Opinion of the Court

physically repairing automobiles. But the statutory lan­
guage is not so constrained. All agree that partsmen, for
example, are “primarily engaged in . . . servicing automo­
biles.” Brief for Petitioner 40; Brief for Respondents 41–
44. But partsmen, like service advisors, do not spend most
of their time under the hood. Instead, they “obtain the
vehicle parts . . . and provide those parts to the mechan­
ics.” Encino I, supra, at ___ (slip op., at 2); see also 1 Dept.
of Labor, Dictionary of Occupational Titles 33 (3d ed.
1965) (defining “partsman” as someone who “[p]urchases,
stores, and issues spare parts for automotive and indus­
trial equipment”). In other words, the phrase “primarily
engaged in . . . servicing automobiles” must include some
individuals who do not physically repair automobiles
themselves but who are integrally involved in the servic­
ing process. That description applies to partsmen and
service advisors alike.
                             C
   The Ninth Circuit concluded that service advisors are
not covered because the exemption simply does not apply
to “salesm[e]n . . . primarily engaged in . . . servicing
automobiles.” The Ninth Circuit invoked the distributive
canon to reach this conclusion. Using that canon, it
matched “salesman” with “selling” and “partsma[n] [and]
mechanic” with “servicing.” We reject this reasoning.
   The text of the exemption covers “any salesman, parts-
man, or mechanic primarily engaged in selling or servicing
automobiles, trucks, or farm implements.” §213(b)(10)(A).
The exemption uses the word “or” to connect all of its
nouns and gerunds, and “or” is “almost always disjunc­
tive.” United States v. Woods, 571 U. S. 31, 45 (2013).
Thus, the use of “or” to join “selling” and “servicing” sug­
gests that the exemption covers a salesman primarily
engaged in either activity.
   Unsurprisingly, statutory context can overcome the
8           ENCINO MOTORCARS, LLC v. NAVARRO

                      Opinion of the Court

ordinary, disjunctive meaning of “or.” The distributive
canon, for example, recognizes that sometimes “[w]here a
sentence contains several antecedents and several conse­
quents,” courts should “read them distributively and apply
the words to the subjects which, by context, they seem
most properly to relate.” 2A N. Singer & S. Singer, Suth­
erland Statutes and Statutory Construction §47:26, p. 448
(rev. 7th ed. 2014).
   But here, context favors the ordinary disjunctive mean­
ing of “or” for at least three reasons. First, the distribu­
tive canon has the most force when the statute allows for
one-to-one matching. But here, the distributive canon
would mix and match some of three nouns—“salesman,
partsman, or mechanic”—with one of two gerunds—
“selling or servicing.” §213(b)(10)(A). We doubt that a
legislative drafter would leave it to the reader to figure out
the precise combinations. Second, the distributive canon
has the most force when an ordinary, disjunctive reading
is linguistically impossible. Cf., e.g., Huidekoper’s Lessee
v. Douglass, 3 Cranch 1, 67 (1805) (Marshall, C. J.) (apply­
ing the distributive canon when a purely disjunctive read­
ing “would involve a contradiction in terms”). But as
explained above, the phrase “salesman . . . primarily
engaged in . . . servicing automobiles” not only makes
sense; it is an apt description of a service advisor. Third, a
narrow distributive phrasing is an unnatural fit here
because the entire exemption bespeaks breadth. It begins
with the word “any.” See Ali v. Federal Bureau of Prisons,
552 U. S. 214, 219 (2008) (noting the “expansive meaning”
of “any”). And it uses the disjunctive word “or” three
times. In fact, all agree that the third list in the exemp­
tion—“automobiles, trucks, or farm implements”—
modifies every other noun and gerund. But it would be
odd to read the exemption as starting with a distributive
phrasing and then, halfway through and without warning,
switching to a disjunctive phrasing—all the while using
                  Cite as: 584 U. S. ____ (2018)             9

                      Opinion of the Court

the same word (“or”) to signal both meanings. See Brown
v. Gardner, 513 U. S. 115, 118 (1994) (noting the “vigor­
ous” presumption that, “when a term is repeated within a
given sentence,” it “is used to mean the same thing”). The
more natural reading is that the exemption covers any
combination of its nouns, gerunds, and objects.
                                D
    The Ninth Circuit also invoked the principle that ex­
emptions to the FLSA should be construed narrowly. 845
F. 3d, at 935–936. We reject this principle as a useful
guidepost for interpreting the FLSA. Because the FLSA
gives no “textual indication” that its exemptions should be
construed narrowly, “there is no reason to give [them]
anything other than a fair (rather than a ‘narrow’) inter­
pretation.” Scalia, Reading Law, at 363. The narrow-
construction principle relies on the flawed premise that
the FLSA “ ‘pursues’ ” its remedial purpose “ ‘at all costs.’ ”
American Express Co. v. Italian Colors Restaurant, 570
U. S. 228, 234 (2013) (quoting Rodriguez v. United States,
480 U. S. 522, 525–526 (1987) (per curiam)); see also
Henson v. Santander Consumer USA Inc., 582 U. S. ___,
___ (2017) (slip op., at 9) (“[I]t is quite mistaken to assume
. . . that whatever might appear to further the statute’s
primary objective must be the law” (internal quotation
marks and alterations omitted)). But the FLSA has over
two dozen exemptions in §213(b) alone, including the one
at issue here. Those exemptions are as much a part of the
FLSA’s purpose as the overtime-pay requirement. See id.,
at ___ (slip op., at 9) (“Legislation is, after all, the art of
compromise, the limitations expressed in statutory terms
often the price of passage”). We thus have no license to
give the exemption anything but a fair reading.
                          E
  Finally, the Ninth Circuit relied on two extraneous
10          ENCINO MOTORCARS, LLC v. NAVARRO

                      Opinion of the Court

sources to support its interpretation: the Department’s
1966–1967 Occupational Outlook Handbook and the
FLSA’s legislative history. We find neither persuasive.
                             1
   The Ninth Circuit first relied on the Department’s
1966–1967 Occupational Outlook Handbook. It identified
12 jobs from the Handbook’s table of contents that it
thought could be found at automobile dealerships. See
845 F. 3d, at 930. The Ninth Circuit then stressed that
the exemption aligns with three of those job titles—
“[a]utomobile mechanics,” “[a]utomobile parts counter­
men,” and “[a]utomobile salesmen”—but not “[a]utomobile
service advisors.” Ibid.
   The Ninth Circuit cited nothing, however, suggesting
that the exemption was meant to align with the job titles
listed in the Handbook. To the contrary, the exemption
applies to “any salesman . . . primarily engaged in selling
or servicing automobiles.” It is not limited, like the term
in the Handbook, to “automobile salesmen.” And the
ordinary meaning of “salesman” plainly includes service
advisors.
                                2
   The Ninth Circuit also relied on legislative history to
support its interpretation. See id., at 936–939. Specifi-
cally, it noted that the legislative history discusses “automo­
bile salesmen, partsmen, and mechanics” but never dis­
cusses service advisors. Id., at 939. Although the Ninth
Circuit had previously found that same legislative history
“inconclusive,” Encino, 780 F. 3d, at 1275, on remand it
was “firmly persuaded” that the legislative history demon­
strated Congress’ desire to exclude service advisors, 845
F. 3d, at 939.
   The Ninth Circuit was right the first time. As we have
explained, the best reading of the statute is that service
                  Cite as: 584 U. S. ____ (2018)                 11

                      Opinion of the Court

advisors are exempt. Even for those Members of this
Court who consider legislative history, silence in the legis­
lative history, “no matter how ‘clanging,’ ” cannot defeat
the better reading of the text and statutory context.
Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 495, n. 13
(1985). 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. See Avco
Corp. v. Department of Justice, 884 F. 2d 621, 625 (CADC
1989). Even if Congress did not foresee all of the applica­
tions of the statute, that is no reason not to give the statu­
tory text a fair reading. See Union Bank v. Wolas, 502
U. S. 151, 158 (1991).
                         *     *    *
  In sum, we conclude that service advisors are exempt
from the overtime-pay requirement of the FLSA because
they are “salesm[e]n . . . primarily engaged in . . . servicing
automobiles.” §213(b)(10)(A). Accordingly, we reverse the
judgment of the Court of Appeals and remand the case for
further proceedings consistent with this opinion.

                                                   It is so ordered.
                 Cite as: 584 U. S. ____ (2018)            1

                    GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                         No. 16–1362
                         _________________


     ENCINO MOTORCARS, LLC, PETITIONER v.

           HECTOR NAVARRO, ET AL. 

 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

            APPEALS FOR THE NINTH CIRCUIT

                        [April 2, 2018]


  JUSTICE GINSBURG, with whom JUSTICE BREYER,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.
  Diverse categories of employees staff automobile dealer­
ships. Of employees so engaged, Congress explicitly ex­
empted from the Fair Labor Standards Act hours re­
quirements only three occupations: salesmen, partsmen,
and mechanics. The Court today approves the exemption
of a fourth occupation: automobile service advisors. In
accord with the judgment of the Court of Appeals for the
Ninth Circuit, I would not enlarge the exemption to in­
clude service advisors or other occupations outside Con­
gress’ enumeration.
  Respondents are service advisors at a Mercedes-Benz
automobile dealership in the Los Angeles area. They work
regular hours, 7 a.m. to 6 p.m., at least five days per week,
on the dealership premises. App. 54. Their weekly mini­
mum is 55 hours. Maximum hours, for workers covered by
the Fair Labor Standards Act (FLSA or Act), are 40 per
week. 29 U. S. C. §207(a)(1). In this action, respondents
seek time-and-a-half compensation for hours worked
beyond the 40 per week maximum prescribed by the
FLSA.
  The question presented: Are service advisors exempt
from receipt of overtime compensation under 29 U. S. C.
§213(b)(10)(A)? That exemption covers “any salesman,
2            ENCINO MOTORCARS, LLC v. NAVARRO

                       GINSBURG, J., dissenting

partsman, or mechanic primarily engaged in selling or
servicing automobiles.” Service advisors, such as respond­
ents, 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 . . . supple­
mental [vehicle] service[s]”; and provide owners with cost
estimates. App. 55. Because service advisors neither sell
nor repair automobiles, they should remain outside the
exemption and within the Act’s coverage.
                             I
  In 1961, Congress exempted all automobile-dealership
employees from the Act’s overtime-pay requirements. See
Fair Labor Standards Amendments of 1961, §9, 75 Stat.
73.1 Five years later, in 1966, Congress confined the
dealership exemption to three categories of employees:
automobile salesmen, mechanics, and partsmen. See Fair
Labor Standards Amendments of 1966, §209, 80 Stat. 836.
At the time, it was well understood that mechanics per­
form “preventive maintenance” and “repairs,” Dept. of
Labor, Occupational Outlook Handbook 477 (1966–1967
ed.) (Handbook), while partsmen requisition parts,
“suppl[y] [them] to mechanics,” id., at 312, and, at times,
have “mechanical responsibilities in repairing parts,” Brief
for International Association of Machinists and Aerospace
Workers, AFL–CIO, as Amicus Curiae 30; see Handbook,
at 312–313 (partsmen may “measure parts for inter­
changeability,” test parts for “defect[s],” and “repair
——————
   1 The exemption further extended to all employees of establishments

selling “trucks” and “farm implements.”        Fair Labor Standards
Amendments of 1961, §9, 75 Stat. 73. When Congress later narrowed
the provision’s scope for automobile-dealership employees, it similarly
diminished the exemption’s application to workers at truck and farm-
implement dealerships. See, e.g., Fair Labor Standards Amendments
of 1966, §209, 80 Stat. 836.
                 Cite as: 584 U. S. ____ (2018)            3

                    GINSBURG, J., dissenting

parts”). Congress did not exempt numerous other catego­
ries of dealership employees, among them, automobile
painters, upholsterers, bookkeeping workers, cashiers,
janitors, purchasing agents, shipping and receiving clerks,
and, most relevant here, service advisors. These positions
and their duties were well known at the time, as docu­
mented in U. S. Government catalogs of American jobs.
See Handbook, at XIII, XV, XVI (table of contents); Brief
for International Association of Machinists and Aerospace
Workers, AFL–CIO, as Amicus Curiae 34 (noting “more
than twenty distinct [job] classifications” in the service
department alone).
   “Where Congress explicitly enumerates certain excep­
tions . . . , additional exceptions are not to be implied, in
the absence of evidence of a contrary legislative intent.”
TRW Inc. v. Andrews, 534 U. S. 19, 28 (2001) (internal
quotation marks omitted). The Court thus has no warrant
to add to the three explicitly exempt categories (salesmen,
partsmen, and mechanics) a fourth (service advisors) for
which the Legislature did not provide. The reach of to­
day’s ruling is uncertain, troublingly so: By expansively
reading the exemption to encompass all salesmen, parts-
men, and mechanics who are “integral to the servicing
process,” ante, at 6, the Court risks restoring much of
what Congress intended the 1966 amendment to termi­
nate, i.e., the blanket exemption of all dealership employ­
ees from overtime-pay requirements.
                             II
  Had the §213(b)(10)(A) exemption covered “any sales­
man or mechanic primarily engaged in selling or servicing
automobiles,” there could be no argument that service
advisors fit within it. Only “salesmen” primarily engaged
in “selling” automobiles and “mechanics” primarily en­
gaged in “servicing” them would fall outside the Act’s
coverage. Service advisors, defined as “salesmen primarily
4             ENCINO MOTORCARS, LLC v. NAVARRO

                        GINSBURG, J., dissenting

engaged in the selling of services,” Encino Motorcars, LLC
v. Navarro, 579 U. S. ___, ___ (2016) (THOMAS, J., dissent­
ing) (slip op., at 2) (emphasis added), plainly do not belong
in either category. Moreover, even if the exemption were
read to reach “salesmen” “primarily engaged in servicing
automobiles,” not just selling them, service advisors would
not be exempt. The ordinary meaning of “servicing” is “the
action of maintaining or repairing a motor vehicle.” Ante,
at 6 (quoting 15 Oxford English Dictionary 39 (2d ed.
1989)). As described above, see supra, at 2, service advi­
sors neither maintain nor repair automobiles.2
   Petitioner stakes its case on Congress’ addition of the
“partsman” job to the exemption. See Reply Brief 6–10.
That inclusion, petitioner urges, has a vacuum effect: It
draws into the exemption job categories other than the
three for which Congress provided, in particular, service
advisors. Because partsmen, like service advisors, neither
“sell” nor “service” automobiles in the conventional sense,
petitioner reasons, Congress must have intended the word
“service” to mean something broader than repair and
maintenance.
   To begin with, petitioner’s premise is flawed. Unlike
service advisors, partsmen “ ‘get their hands dirty’ by
‘working as a mechanic’s right-hand man or woman.’ ”
Encino Motorcars, 579 U. S., at ___, n. 1 (GINSBURG, J.,
concurring) (slip op., at 1, n. 1) (quoting Brief for Respond­
ents in No. 15–415, p. 11; alterations omitted); see supra,

——————
  2 Service advisors do not maintain or repair motor vehicles even if, as

the Court concludes, they are “integral to the servicing process.” Ante,
at 6. The Ninth Circuit provided an apt analogy: “[A] receptionist-
scheduler at a dental office fields calls from patients, matching their
needs (e.g., a broken tooth or jaw pain) with the appropriate provider,
appointment time, and length of anticipated service. That work is
integral to a patient’s obtaining dental services, but we would not say
that the receptionist-scheduler is ‘primarily engaged in’ cleaning teeth
or installing crowns.” 845 F. 3d 925, 932 (2017).
                      Cite as: 584 U. S. ____ (2018)                      5

                         GINSBURG, J., dissenting

at 2–3 (describing duties of partsmen). As the Solicitor
General put it last time this case was before the Court, a
mechanic “might be able to obtain the parts to complete a
repair without the real-time assistance of a partsman by
his side.” Brief for United States as Amicus Curiae in No.
15–415, p. 23. But dividing the “key [repair] tasks . . .
between two individuals” only “reinforces” “that both the
mechanic and the partsman are . . . involved in repairing
(‘servicing’) the vehicle.” Ibid. Service advisors, in con­
trast, “sell . . . services [to customers] for their vehicles,”
Encino Motorcars, 579 U. S., at ___ (slip op., at 2) (empha­
sis added)—services that are later performed by mechan­
ics and partsmen.
   Adding partsmen to the exemption, moreover, would be
an exceptionally odd way for Congress to have indicated
that “servicing” should be given a meaning deviating from
its ordinary usage. There is a more straightforward ex­
planation for Congress’ inclusion of partsmen alongside
salesmen and mechanics: Common features of the three
enumerated jobs make them unsuitable for overtime pay.
   Both salesmen and mechanics work irregular hours,
including nights and weekends, not uncommonly offsite,
rendering time worked not easily tracked.3 As noted in
the 1966 Senate floor debate, salesmen “go out at unusual
hours, trying to earn commissions.” 112 Cong. Rec. 20504
——————
   3 In addition to practical difficulties in calculating hours, a core pur­

pose of overtime may not be served when employees’ hours regularly
fluctuate. Enacted in the midst of the Great Depression, the FLSA
overtime rules encourage employers to hire more individuals who work
40-hour weeks, rather than maintaining a staff of fewer employees who
consistently work longer hours. See Overnight Motor Transp. Co. v.
Missel, 316 U. S. 572, 577–578 (1942) (overtime rules apply “financial
pressure” on employers to “spread employment”); 7 D. VanDeusen,
Labor and Employment Law §176.02[1] (2018). But if a position’s
working hours routinely ebb and flow, while averaging 40 each week,
then it does not make sense to encourage employers to hire more
workers for that position.
6            ENCINO MOTORCARS, LLC v. NAVARRO

                      GINSBURG, J., dissenting

(1966) (remarks of Sen. Bayh). See also ibid. (remarks of
Sen. Yarborough) (“[T]he salesman . . . [can] sell an
Oldsmobile, a Pontiac, or a Buick all day long and all
night. He is not under any overtime.”). Mechanics’ work
may involve similar “difficult[ies] [in] keeping regular
hours.” Ibid. For example, mechanics may be required to
“answe[r] calls in . . . rural areas,” ibid., or to “go out on
the field where there is a harvesting of sugarbeets,” id., at
20505 (remarks of Sen. Clark).4 And, like salesmen, me­
chanics may be “subject to substantial seasonal variations
in business.” Id., at 20502 (remarks of Sen. Hruska).
    Congress added “partsman” to the exemption because it
believed that job, too, entailed irregular hours. See ibid.
This is “especially true,” several Senators emphasized, “in
the farm equipment business where farmers, during plant­
ing, cultivating and harvesting seasons, may call on their
dealers for parts at any time during the day or evening
and on weekends.” Ibid. (remarks of Sen. Bayh). See also
id., at 20503 (remarks of Sen. Mansfield). In Senator
Bayh’s experience, for instance, a mechanic who “could not
find [a] necessary part” after hours might “call the parts-
man, get him out of bed, and get him to come down to the
store.” Id., at 20504. See also id., at 20503 (remarks of
Sen. Hruska) (“Are we going to say to the farmer who
needs a part . . . on Sunday: You cannot get a spark plug
. . . because the partsman is not exempt, but you can have
machinery repaired by a mechanic who is exempt[?]”).
Although some Senators opposed adding partsmen to the
exemption because, as they understood the job’s demands,
partsmen did not work irregular hours, e.g., id., at 20505
(remarks of Sen. Clark), the crux of the debate under­
scores the exemption’s rationale.
——————
  4 Recall that the exemption extends to salesmen, mechanics, and

partsmen at dealerships selling farm implements and trucks, not just
automobiles. See supra, at 2, n. 1.
                 Cite as: 584 U. S. ____ (2018)           7

                   GINSBURG, J., dissenting

   That rationale has no application here. Unlike sales­
men, partsmen, and mechanics, service advisors “wor[k]
ordinary, fixed schedules on-site.” Brief for Respondents
47 (citing Handbook, at 316). Respondents, for instance,
work regular 11-hour shifts, at all times of the year, for a
weekly minimum of 55 hours. See App. 54. Service advi­
sors thus do not implicate the concerns underlying the
§213(b)(10)(A) exemption. Indeed, they are precisely the
type of workers Congress intended the FLSA to shield
“from the evil of overwork,” Barrentine v. Arkansas-Best
Freight System, Inc., 450 U. S. 728, 739 (1981) (internal
quotation marks omitted).
   I note, furthermore, that limiting the exemption to the
three delineated jobs—salesman, partsman, and mechanic—
does not leave the phrase “primarily engaged in selling
or servicing,” §213(b)(10)(A), without utility. Congress
included that language to ensure that only employees who
actually perform the tasks commonly associated with the
enumerated positions would be covered. Otherwise, for
example, a worker who acts as a “salesman” in name only
could lose the FLSA’s protections merely because of the
formal title listed on the employer’s payroll records. See
Bowers v. Fred Haas Toyota World, 2017 WL 5127289, *4
(SD Tex., June 21, 2017) (“[An employee’s] title alone is
not dispositive of whether he meets the . . . exemption.”).
Thus, by partsmen “primarily engaged in . . . servicing
automobiles,” Congress meant nothing more than parts-
men primarily engaged in the ordinary duties of a parts-
man, i.e., requisitioning, supplying, and repairing parts.
See supra, at 2–3, 4–5. The inclusion of “partsman” there­
fore should not result in the removal of service advisors
from the Act’s protections.
                          III
 Petitioner contends that “affirming the decision below
would disrupt decades of settled expectations” while ex­
8            ENCINO MOTORCARS, LLC v. NAVARRO

                       GINSBURG, J., dissenting

posing “employers to substantial retroactive liability.”
Brief for Petitioner 51. “[M]any dealerships,” petitioner
urges, “have offered compensation packages based primar­
ily on sales commissions,” in reliance on court decisions
and agency guidance ranking service advisors as exempt.
Id., at 51–52. Respondents here, for instance, are com­
pensated on a “pure commission basis.” App. 55. Award­
ing retroactive overtime pay to employees who were “fo­
cused on earning commissions,” not “working a set number
of hours,” petitioner argues, would yield an “unjustified
windfal[l].” Brief for Petitioner 53.
   Petitioner’s concerns are doubly overstated. As the
Court previously acknowledged, see Encino Motorcars, 579
U. S., at ___ (slip op., at 11), the FLSA provides an affirm­
ative defense that explicitly protects regulated parties
from retroactive liability for actions taken in good-faith
reliance on superseded agency guidance. See 29 U. S. C.
§259(a). Given the Department of Labor’s longstanding
view that service advisors fit within the §213(b)(10)(A)
exemption, see ante, at 2, the reliance defense would
surely shield employers from retroactive liability were the
Court to construe the exemption properly.
   Congress, moreover, has spoken directly to the treat­
ment of commission-based workers. The FLSA exempts
from its overtime directives any employee of a “retail or
service establishment” who receives more than half of his
or her pay on commission, so long as the employee’s “regu­
lar rate of pay” is more than 1½ times the minimum wage.
§207(i). Thus, even without the §213(b)(10)(A) exemption,
many service advisors compensated on commission would
remain ineligible for overtime remuneration.5
——————
  5 The current FLSA minimum wage, for example, is $7.25 per hour.

See 29 U. S. C. §206(a)(1)(C). The only commission-based service
advisors at retail or service establishments who are not already exempt
under §207(i)—and who thus remain eligible for overtime—are those
earning less than $10.88 per hour. Providing such workers time-and-a­
                     Cite as: 584 U. S. ____ (2018)                    9

                        GINSBURG, J., dissenting

  In crafting the commission-pay exemption, Congress
struck a deliberate balance: It exempted higher paid com­
missioned employees, perhaps in recognition of their
potentially irregular hours, see Mechmet v. Four Seasons
Hotels, Ltd., 825 F. 2d 1173, 1176–1177 (CA7 1987); cf.
supra, at 5–7, but it maintained protection for lower paid
employees, to vindicate the Act’s “principal . . . purpose” of
shielding “workers from substandard wages and oppres­
sive working hours,” Barrentine, 450 U. S., at 739.6 By
stretching the §213(b)(10)(A) exemption to encompass
even the lowest income service advisors compensated on
commission, the Court upsets Congress’ careful balance,
while stripping away protection for the most vulnerable
workers in this occupation.
                       *    *     *
  This Court once recognized that the “particularity” of
FLSA exemptions “preclude[s] their enlargement by impli­
cation.” Addison v. Holly Hill Fruit Products, Inc., 322
U. S. 607, 617 (1944). Employees outside the Act’s “nar­
row and specific” exemptions, the Court affirmed, “remain
within the Act.” Powell v. United States Cartridge Co.,
339 U. S. 497, 517 (1950).7 The Court today, in adding an
——————
half pay, as Congress directed, would confer, at most, $5.44 per over­
time hour.
    6 Congress struck a similar balance in 29 U. S. C. §207(f), which ex­

empts employees whose duties “necessitate irregular hours of work,”
but only if they receive specified minimum rates of pay.
    7 This Court has long held 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.” Arnold v. Ben Kanowsky, Inc., 361 U. S. 388,
392 (1960). This principle is a well-grounded application of the general
rule that an “exception to a general statement of policy is usually read
. . . narrowly in order to preserve the primary operation of the provi­
sion.” Maracich v. Spears, 570 U. S. 48, 60 (2013) (internal quotation
marks omitted). In a single paragraph, the Court “reject[s]” this
longstanding principle as applied to the FLSA, ante, at 9, without even
10           ENCINO MOTORCARS, LLC v. NAVARRO

                       GINSBURG, J., dissenting

exemption of its own creation, veers away from that com­
prehension of the FLSA’s mission. I would instead resist,
as the Ninth Circuit did, diminishment of the Act’s over­
time strictures.




—————— 

acknowledging that it unsettles more than half a century of our prece­
dent.