The Maryland Court of Appeals Expands Potential Liability under the Maryland Wage and Hour Law for Worker Time Spent at the Beginning and End of Shifts
In Amaya v. DGS Construction, LLC, the Maryland Court of Appeals recently ruled that employees may be entitled to pay under the Maryland Wage and Hour Law (“MWHL”) for time spent on a company shuttle traveling to and from a worksite. In doing so, the Court determined that “work” for which wages are due under the MWHL for activities at the beginning and end of the workday is broader than “compensable work” under the federal Fair Labor Standards Act (“FLSA”). Employers should evaluate their pay practices to ensure that they are appropriately paying non-exempt employees under the MWHL for time at the beginning and end of shifts.
Facts at Issue
In Amaya, workers sued their respective employers for unpaid wages relating to work on construction of the MGM National resort and casino.[1] The workers used a company-provided shuttle to the job site from a designated parking lot to reduce traffic congestion at the worksite. After arriving at the construction site, the employees proceeded through security before clocking in. At the end of the day, the employees clocked out, exited through security and used the shuttle to return to their cars. The time spent before and after clocking in and out was not tracked, and the workers were not compensated for it.
The Court stated that under the federal Portal-to-Portal Act (PPA), which is an amendment to the FLSA, the employers would not be required to compensate their employees for time traveling to and from the job site. The PPA provides that employers are not required to pay employees for work preliminary or postliminary to the principal work for which they are employed to perform. Relying on the PPA, the employers in Amaya believed their compensation practice complied with the MWHL, which largely tracks the FLSA.
The Court, however, disagreed. The Court ruled that while the MWHL expressly incorporates much of the FLSA, it does not incorporate the PPA. As a result, workers may be entitled to pay, even if an employee is not actively engaged in – what the employer might classify as – productive work.
The Court’s Legal Analysis
The MWHL largely incorporates the FLSA. It specifically states, “The Maryland Wage and Hour Law, contained in this subtitle, shares the benevolent purpose of its federal partners, the Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq. . . .” Md. Code Ann., Lab. & Empl. § 3-402. Further, the MWHL directly refers to the FLSA several times throughout its various sections. Maryland regulations, courts and the Maryland Department of Labor have relied heavily upon the FLSA in interpreting the MWHL. In Amaya, however, the Court identified a distinction between the federal and state statutes.
In reaching its ruling, the Court focused on exactly how the MWHL references the FLSA. The Court based its focus on the specific incorporation language and the timing of enactment of the FLSA, PPA, and MWHL (and corresponding regulations).
The Court stated that the MWHL, in its incorporation of the FLSA, referred specifically to the “federal Fair Lab Standards Act of 1938,” as opposed to the “federal Fair Labor Standards Act, as Amended by the PPA.” The Maryland Court observed that the MWHL was enacted in 1965 (almost 20 years after the amendment of the FLSA). It concluded that if the legislature had intended Maryland law to mimic the FLSA as amended by the PPA, it would have explicitly said so, but it did not. The Court stated this must have been intentional because the legislature knows how to properly refer to an act versus an amended act. The Court reasoned that given that neither the MWHL, Maryland Wage Payment and Collection Law, or their corresponding Maryland regulations refer to the PPA, the legislature must not have intended Maryland law to follow the amended version of the FLSA.
The Court also examined the definition of “work” for which wages must be paid in Maryland. [2] To do this, the Court looked to the Code of Maryland Regulations (COMAR).[3] In this case, the corresponding regulations are found at Title 09, Subtitle 12, Chapter 41. COMAR 09.12.41.10 which defines “hours of work” as “time during a workweek that an individual employed by an employer is required by the employer to be on the employer’s premises, on duty, or at a prescribed workplace.” Further, “travel time” is included in computing hours of work where the employee “travels from one worksite to another.” COMAR 09.21.41.10C(2). Whether a specific location is a “worksite,” the Court explained, “is intrinsically tied to the definition of hours of work in COMAR 09.12.41.10A.” Therefore, if an employee performs “hours of work” at a specific location, then that location is a “worksite.”
Questions for the Trier of Fact
The Court explained that the question before it was whether the additional time spent by the construction workers after arriving (and later returning to) the designated parking lot, qualified as “hours of work” under Maryland law. Meaning, upon arriving at the designated parking lot, were the employees: 1) on the employer’s premises, 2) on duty, or 3) at a prescribed workplace. The Court went on to reason if the employees were required to report to the designated parking lots and any of the three previously mentioned conditions were met, it follows that the employees must be paid for time spent traveling from the designated parking lot to any other location that is a prescribed workplace or location which the employee is required to be on duty or required to be on the employer’s premises, i.e. another worksite.
Ultimately, the Court reasoned that this was a question for the trier of fact and reversed and remanded both cases for the circuit courts to conduct further proceedings for factual determinations.
While the Court did not define “employer’s premises,” “on duty” or “prescribed workplace,” it discussed facts the trier of fact should consider in making a finding on whether the employee was “required” to report to a specific location. The Court mentioned considerations such as the existence of opportunity to park at other lots, the ability to use ride sharing services such as Uber (or else its prohibition by the employer), and other evidence the employees could access the construction site by any means other than reporting to the designated lots and taking the shuttle.
The Bottom Line
While unwilling to commit to further guidance, the Court did note if the employers required their workers to report to a specific parking area and use it as the sole means of accessing the construction site, then the workers must be compensated for the associated wait and travel time.
Employers can no longer assume that time spent by their employees traveling from a meeting area to a worksite before and after a shift is not compensable. Instead, employers must make the determination of whether that required reporting location is the employer’s premises, the employee is on duty at the required reporting location, or the location is a prescribed workplace.
Please contact your employment law attorney at Liff, Walsh & Simmons for questions or assistance.
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[1] In its opinion, the Court actually decided two cases, Amaya, et al, v. DGS Construction, LLC, et al. and Rojas, et al. v. F.R. General Contractors, Inc., et al., as both presented the same issue.
[2] The MWPCL requires that an employer pay an employee “wages,” see LE §§ 3-502, 3-505, and defines “wage” to mean “all compensation that is due to an employee for employment.” LE § 3-501(c). Both the MWHL and MWPCL define “employ” as “to engage an individual to work” and includes “allowing an individual to work” and “instructing an individual to be present at a work site.” LE § 3-101(c). The term “work” or “compensable work” is not defined in the MWHL, the MWPCL, or COMAR, but COMAR 09.12.41.10 describes “hours of work.”
[3] The Amaya court explained that the MWHL, as originally enacted – and presently, to a more limited extent – provided the Commissioner of the Department of Labor and Industry, to make regulations which allow the MWHL to be carried out.
[4]Refraining from defining “employer’s premises,” “on duty” or “prescribed workplace.”
