Amaya v. DGS Construction

Mario Ernesto Amaya, et al. v. DGS Construction, LLC, et al., No. 14, September Term, 2021; Juan Carlos Terrones Rojas, et al. v. F.R. General Contractors, Inc., et al., No. 17, September Term, 2021 MARYLAND WAGE AND HOUR LAW, MD. CODE ANN., LAB. & EMPL. (“LE”) §§ 3-401 TO 3-431 – MARYLAND WAGE PAYMENT AND COLLECTION LAW, LE §§ 3-501 TO 3-509 – CODE OF MARYLAND REGULATIONS 09.12.41.10 – WAGES – OVERTIME COMPENSATION – HOURS OF WORK – UNJUST ENRICHMENT – Court of Appeals held that Portal-to-Portal Act (“PPA), 29 U.S.C. §§ 251 to 262, has not been adopted or incorporated into Maryland law in either Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Lab. & Empl. (1991, 2016 Repl.

Vol.) (“LE”) §§ 3-401 to 3-431, Maryland Wage Payment and Collection Law (“MWPCL”), LE §§ 3-501 to 3-509, or relevant Code of Maryland Regulations (“COMAR”). Specifically, Court concluded that 29 U.S.C. § 254 (a) of PPA—which provides, among other things, that time spent traveling to actual place of performance of principal activity or activities which employee is employed to perform is not compensable—has not been implicitly adopted into Maryland law. In other words, what constitutes “work” under Maryland law is not limited to what is compensable work under PPA and Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 to 219. As such, issue of whether workers are entitled to compensation for time spent waiting at parking area and traveling to construction site and back must be resolved under Maryland law.

Under Maryland law, issue is whether workers were either required by their employer to report during work hours to location that is employer’s premises, to be on duty, or to report to prescribed workplace, or whether employees were traveling from one worksite to another. If so, under COMAR 09.12.41.10, workers are entitled to compensation. Court of Appeals concluded that, in each case, issue of whether workers were engaged in hours of work by being required to report to parking area and whether parking area was the employers’ premises or prescribed workplace or whether employees were required to be on duty as provided under COMAR 09.12.41.10 involved genuine disputes of material fact, and respective trial courts erred in granting summary judgment and judgment at conclusion of workers’ evidence at trial. In addition, in one case, Court of Appeals concluded that Court of Special Appeals erred in affirming trial court’s grant of judgment as to unjust enrichment claim on ground that workers did not perform compensable work, as determination was based on conclusion that PPA applied.

Circuit Court for Prince George’s County Case No. CAL17-26383 IN THE COURT OF APPEALS Circuit Court for Prince George’s County OF MARYLAND Case No. CAL18-10797 No. 14 Argued: November 8, 2021 September Term, 2021 ______________________________________ MARIO ERNESTO AMAYA, ET AL. v. DGS CONSTRUCTION, LLC, ET AL. ______________________________________ No. 17 September Term, 2021 ______________________________________ JUAN CARLOS TERRONES ROJAS, ET AL. v. F.R. GENERAL CONTRACTORS, INC., ET AL. ______________________________________ *Getty, C.J. *McDonald Watts Hotten Booth Biran Battaglia, Lynne A. (Senior Judge, Specially Assigned) JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: July 13, 2022 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. *Getty, C.J., and McDonald, J., now Senior Judges, 2022-07-13 10:29-04:00 participated in the hearing and conference of this case while active members of this Court. After being recalled pursuant to Md. Const., Art. IV, § 3A, they also Suzanne C. Johnson, Clerk participated in the decision and adoption of this opinion. In two related cases, construction workers brought actions for unpaid wages and overtime wages under the Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Lab. & Empl.

(1991, 2016 Repl. Vol.) (“LE”) §§ 3-401 to 3-431, and the Maryland Wage Payment and Collection Law (“MWPCL”), LE §§ 3-501 to 3-509, and claims for unjust enrichment for the time that they waited and traveled between a parking area where their employers directed them to park and a construction site where they performed physical labor. The workers accessed the construction site via buses, supplied by the general contractor for the project, that took them from the parking area to the construction site and back. The workers were not compensated for wait and travel time, either coming or going from the parking area, which in total averaged approximately two hours per day.

The cases involve the question of whether a federal law which provides that traveling to work is not a compensable activity has been adopted or incorporated into the MWHL, the MWPCL, and the Code of Maryland Regulations (“COMAR”) and the related question of whether what constitutes “work” under Maryland law for which wages are due to an employee is limited to what constitutes “compensable work” under federal law. Under the federal Portal-to-Portal Act (“PPA”), 29 U.S.C. §§ 251 to 262, which is an amendment to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 to 219, certain activities are not compensable, including (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. PPA, 29 U.S.C. § 254 (a). If the PPA has been adopted or incorporated into Maryland law, then, in these cases, the workers’ wait and travel time between the parking lot and the construction site would not be compensable.

In addition, the workers raise the question of whether under COMAR 09.12.41.10 a “prescribed workplace” or “worksite” includes a place that employees are required by an employer to report.1 In other words, if the PPA’s prohibition on compensation for an employee’s travel time has not been adopted into Maryland law, we must determine under Maryland law whether the workers would be entitled to compensation for wait and travel time, if their employers indeed required them to report to the parking area and use it as the sole means of accessing the construction site. If, however, the workers were not required to report to the parking area, then regardless of the non-applicability of the PPA, under COMAR 09.12.41.10, the workers would not be entitled to compensation for the wait and 1 COMAR 09.12.41.10 provides, in relevant part: A. “Hours of work” means the 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. ... C. Travel time is included in computing hours of work if the individual: (1) Travels during regular work hours; (2) Travels from one worksite to another[.] -2- travel time. In one of the two cases, which we will refer to as the Amaya case, the trial court granted summary judgment in favor of the employer, ruling that the General Assembly grafted the definition of “employ” from the FLSA into the MWHL and correspondingly the PPA was also grafted into the MWHL.

Additionally, the trial court ruled that the workers did not perform “work” at the parking area, and that the parking area was not a “worksite” for purposes of the MWHL claim. In the second case, which we will refer to as the Rojas case, during a jury trial, the trial court granted the employers’ motion for judgment made at the close of evidence offered by the workers, ruling that no reasonable jury could find that the workers performed “principal or integral activities” at the parking area, that the workers were traveling during work hours, or that they were traveling from one worksite to another. In each case, the Court of Special Appeals affirmed the trial court’s judgment and held that the MWHL and related COMAR regulations incorporate the FLSA, the PPA, and relevant Code of Federal Regulations (“CFR”) into Maryland law and that it is not necessary “for Maryland to specifically express that we have adopted an amendment to a federal statute where the Legislature has enacted a state’s equivalent of the federal statute.” See Amaya v. DGS Constr., LLC, 249 Md. App. 462, 477 , 246 A.3d 616, 625 (2021); See Juan Carlos Terrones Rojas, et al. v. F.R. Gen. Contractors, Inc., et al., No. 1529, Sept. Term, 2019, 2021 WL 797245 , at ³ (Md. Ct. Spec.

App. Mar. 2, 2021). The Court of Special Appeals stated that “[i]ncorporating statutory provisions by reference, partially or entirely, into legislation has been long recognized as an acceptable practice on both the -3- state and federal levels unless prohibited by constitutional provisions.” Amaya, 249 Md. App. at 477 , 246 A.3d at 625 (cleaned up); Rojas, 2021 WL 797245 , at ³ (cleaned up). The Court of Special Appeals concluded that “the MWHL and its regulations must be read as interrelated parts of the statutory scheme that includes the FLSA, the Portal-to-Portal Act and accompanying regulations.” Amaya, 249 Md. App. at 478-49 , 246 A.3d at 625 - 26 (cleaned up); Rojas, 2021 WL 797245 , at ³ (cleaned up). In addition, the Court of Special Appeals held that under Maryland law, “to determine what constitutes a worksite, [the Court] examine[s] not whether the employee was required to report to a location, but instead whether the employee performed part of their job function at the location[,]” and concluded that, under that analysis, the workers did not perform job functions at the parking lot and thus the parking lot was not a worksite.

Amaya, 249 Md. App. at 483 , 246 A.3d at 629 ; Rojas, 2021 WL 797245 , at ³. With respect to the Rojas case, the Court of Special Appeals concluded that the employers moved for judgment on all claims, which included the unjust enrichment claim, and that the trial court properly ruled in favor of the employers on the claim. Rojas, 2021 WL 797245 , at ⁶. The Court of Special Appeals determined that the trial court properly dismissed all of the claims, including the unjust enrichment claim, as the trial court found that the workers “did not perform compensable services or work when parking and riding the shuttle.” Id. -4- The workers filed in this Court petitions for a writ of certiorari, which we granted.2 See Amaya v. DGS Constr., LLC, 474 Md. 719 , 255 A.3d 1090 (2021); Rojas v. F.R. Gen.

Contractors, Inc., 474 Md. 720 , 255 A.3d 1091 (2021). Against this backdrop, we hold that the PPA has not been adopted or incorporated into Maryland law in either the MWHL, the MWPCL, or relevant COMAR regulations. Specifically, we conclude that 29 U.S.C. § 254 (a) of the PPA—which provides, among other things, that traveling to the actual place of performance of principal activity or activities which an employee is employed to perform is not compensable—has not been implicitly adopted into Maryland law. In other words, what constitutes “work” under Maryland law is not limited to what is compensable work under the PPA and FLSA.

As such, in these cases, the issue of whether the workers are entitled to compensation for the time spent waiting at the parking area and traveling to the construction site and back must be resolved under Maryland law. Although the workers framed the question in this Court slightly differently, as we see it, under Maryland law, the critical issue is whether the workers were either required by their employer to report during work hours to a location that is the employer’s premises, to be on duty, or to report to a prescribed workplace, or whether the employees were traveling from one worksite to another. If so, under COMAR 09.12.41.10, the workers are entitled to compensation. That said, we conclude that, in each case, there are genuine disputes of material fact as to whether the workers were required to report to the parking area and whether the 2 Oral argument in each case was held on the same day.

Although the cases have not been formally consolidated, we issue one opinion due to the similarity of the issues and applicable law. -5- parking area was the employers’ premises or a prescribed workplace or whether the employees were required to be on duty as provided under COMAR 09.12.41.10, and the respective trial courts erred in granting summary judgment and judgment at the conclusion of the workers’ case at trial. Accordingly, the cases are remanded to the Court of Special Appeals with instructions to remand the cases to the circuit court for findings by a trier of fact as to whether the workers were required to report to the parking area, whether the parking area was the employer’s premises or a prescribed workplace, or whether the workers were required to be on duty, and hence were engaged in hours of work as set forth by COMAR 09.12.41.10. In addition, in the Rojas case, we conclude that the Court of Special Appeals erred in affirming the trial court’s grant of judgment as to the unjust enrichment claim on the ground that the workers did not perform compensable work, as this determination was based on the erroneous conclusion that the PPA applied. BACKGROUND Amaya In 2014, DGS Construction, LLC d/b/a Schuster Concrete Construction (“DGS”), Respondent,3 entered into a subcontract with The Whiting-Turner Contracting Company, the general contractor, to perform structural concrete work on construction of the MGM National Harbor resort and casino (“the MGM Project”) in Prince George’s County.

DGS worked on the MGM Project from November 2014 through approximately November 2016, employing numerous construction workers. In 2015, DGS employed Mario Ernesto 3 Daniel G. Schuster, Respondent, is the CEO and owner of DGS. We refer to DGS and Schuster collectively as “DGS.” -6- Amaya and Jose Norland Gonzalez, Petitioners, non-managerial construction workers, to perform construction work on the MGM Project.4 To gain access to the MGM Project construction site, DGS directed workers, including Amaya and Gonzalez, to park at the Rosecroft Raceway (“Rosecroft”), an offsite parking area located approximately 2.3 miles from the MGM Project construction site,5 and then ride buses provided by Whiting-Turner to and from the construction site. The project manual issued by Whiting-Turner contained a description of the term “the Site,” which included a description of incidental areas such as parking areas.

The project manual included a copy of the prime general contract agreement, which was incorporated into each subcontract. The prime general contract agreement explained “Work Area,” by stating: “Prime General Contractor shall confine operations on the Site to areas outlined in the Contract Documents and shall not encumber any unidentified or unapproved Work areas with materials or equipment.” The contract defined “the Site” as the premises located at 101 Harborview Ave, Oxon Hill, MD 20745 and . . . including but not limited to: a. the beltway parcel; and b. “Incidental Areas” which includes any and all material staging, lay down, storage, office, and parking areas located within a twenty-five (25) mile radius of the beltway parcel and which are under the control of Prime General Contractor and whose use is related to work 4 In the complaint, Amaya alleged that he worked for DGS from 2015 to 2016 performing construction work on the MGM Project, and Gonzalez alleged that he worked for DGS in 2015 performing construction work on the MGM Project. In the answer, DGS admitted that Amaya and Gonzalez worked for it “at certain times in 2015 on the Project[,]” but denied the remaining allegations, i.e., that Amaya worked for it in 2016. 5 Rosecroft was located at 6336 Rosecroft Drive in Fort Washington, Maryland. The MGM Project site was located on National Avenue in Oxon Hill, Maryland. -7- performed at the Project.

DGS’s subcontract provided that DGS “assumes all obligations, duties and responsibilities by which” Whiting-Turner is bound to MGM “pursuant to the Contract documents” and that DGS shall be bound to Whiting-Turner “to the same extent that” Whiting-Turner is bound to MGM “by all of the terms, provisions and conditions set forth in the Contract Documents[.]” Rosecroft was approved by MGM, the Project’s owner, as a parking area for the MGM Project and was under Whiting-Turner’s control during construction. Whiting- Turner provided parking at Rosecroft to subcontractors’ employees who drove to work because there was no location to park at the MGM Project site. MGM and Whiting-Turner had adopted a “good neighbor” policy to avoid disruptions, such as increased traffic, in the community surrounding the MGM Project site. As part of that policy, Whiting-Turner leased Rosecroft and enforced off-site parking requirements.

Whiting-Turner stated that it would revoke access to the MGM Project site for any construction worker who violated the policy by parking a vehicle elsewhere. In a letter to subcontractors, Whiting-Turner explained that, as stipulated in the contracts, “all subcontractor personnel” were required to park at Rosecroft and use the buses, and that “[a]ny workers caught parking at the Prince George’s County Park and Ride lot on Oxon Hill Road will be removed from the approved workers list that may enter the jobsite.” At one point, DGS’s project manager complained to Whiting-Turner that there were insufficient buses to take DGS workers to Rosecroft and that in some instances workers were required to wait two hours or more to get a ride back to Rosecroft. In addition, when the parking area at Rosecroft was unavailable, work at the -8- construction site stopped. Amaya and Gonzalez were not required to pay for parking at Rosecroft or for use of the bus to and from Rosecroft to the construction site.

When they reached the MGM Project site, Amaya and Gonzalez went through security and then clocked in. At the end of their shifts, they passed back through security, clocked out, and were required to ride a bus back to their vehicles parked at Rosecroft. Amaya and Gonzalez were not compensated for the time they spent parking, waiting for the bus, traveling on the bus to and from the MGM Project site, or passing through security upon entry to or departure from the MGM Project Site. During an average shift, the time spent waiting, in transit, and passing through security resulted in approximately two hours of uncompensated time.

This time was not recorded in any way by DGS. On September 15, 2017, Amaya and Gonzalez filed in the Circuit Court for Prince George’s County a class action complaint against DGS on behalf of themselves and a class of similarly-situated DGS employees for unpaid wages and overtime wages for wait and travel time under the MWHL and the MWPCL.6 The complaint included three counts: violation of the MWPCL, violation of the MWHL, and unjust enrichment. Amaya and Gonzalez later filed an amended complaint adding Daniel G. Schuster, Respondent, as a defendant.7 On February 15, 2019, Amaya and Gonzalez filed a motion for class certification. 6 Jose Amadeo Castillo also originally was a plaintiff in the case but later a line was filed with the circuit court removing Castillo as a named plaintiff. 7 On April 18, 2018, DGS filed a motion to dismiss the amended complaint, which the circuit court denied. DGS then filed an answer. -9- After a hearing, the circuit court bifurcated the case and reserved issuing a ruling on the class certification request until after a determination on the issue of liability.

On July 1, 2019, DGS filed a motion for summary judgment. On the same day, Amaya and Gonzalez filed a motion for partial summary judgment and request for a hearing. Each party filed an opposition to the other’s motion. On August 22, 2019, the circuit court held a hearing and, at the conclusion of the hearing, took the pending motions under advisement for issuance of a written decision.

On November 5, 2019, the circuit court issued a memorandum opinion and order, granting DGS’s motion for summary judgment, denying Amaya’s and Gonzalez’s motion for partial summary judgment, and entering judgment as a matter of law in favor of DGS. The circuit court concluded that, given the similarities in the definitions of the word “employ” in “the original MWHL from 1965 and FLSA[,]” it was “impossible” for the court to determine that “the General Assembly purposely intended to exclude the interpretative history of the [PPA] from MWHL.” The circuit court reasoned that, “[b]ecause the General Assembly chose to graft the definition of employ directly from FLSA into the MWHL, [it] also [found] that the interpretative guidance and statutory limitations imposed by the existing [PPA were] also grafted into the MWHL.” (Footnote omitted). In considering what constituted a worksite under the MWHL, the circuit court concluded that Amaya and Gonzalez did not perform “work” at Rosecroft because they were not on DGS’s premises, on duty, or at a prescribed workplace, and that, accordingly, Rosecroft was not a worksite for purposes of the MWHL. The circuit court stated that, considering the facts in the light most favorable to Amaya and Gonzalez, it concluded that - 10 - they were: (1) ordered to park and assemble at Rosecroft; (2) received no assignments, directives, or other orders regarding the day’s work; (3) donned/doffed no protective equipment; (4) loaded no tools for transit beyond their first and last day at the MGM worksite; and, (5) were shuttled to the MGM site where [they] actually performed construction work on behalf of [DGS].

While the Court agrees with [Amaya and Gonzalez] that “work” does not necessarily involve the exertion of energy, [they] must be involved in activities which are integral and indispensable to principal activities for which they were employed. Here, [Amaya and Gonzalez] were carpenters who worked for [DGS] performing construction work on the MGM National Harbor project. Carpentry at the MGM National Harbor project was [their] principal activity. The Court does not see how any of the activities at Rosecroft was integral and indispensable to [their] role as carpenters.

(Cleaned up). The circuit court rejected Amaya’s and Gonzalez’s argument that Rosecroft was a worksite based on definitions in the project manual, stating: “The Court finds no basis to impute the General Contractor’s definition of worksite into the employer/employee relationship[.]” The circuit court ruled that Amaya and Gonzalez had not presented any evidence that they were “engaged in any activities that were integral and indispensable to their principal activities as carpenters at any site other than the MGM worksite” and that the project manual had no bearing on the definition of worksite under the MWHL. As such, the circuit court determined that there had been no violation of the MWHL or the MWPCL. The circuit court likewise determined that Amaya and Gonzalez were unable to satisfy the elements of an unjust enrichment claim.

Amaya and Gonzalez appealed, and in a reported opinion, the Court of Special Appeals affirmed the circuit court’s judgment. See Amaya, 249 Md. App. at 465-66 , 246 A.3d at 618 . The Court of Special Appeals held that “the MWHL and COMAR regulations - 11 - incorporate the FLSA, [the PPA] amendments thereto, and the Code of Federal Regulations” and that it is not necessary “for Maryland to specifically express that we have adopted an amendment to a federal statute where the Legislature has enacted a state’s equivalent of the federal statute.” Id. at 477 , 246 A.3d at 625 . The Court of Special Appeals stated that “[i]ncorporating statutory provisions by reference, partially or entirely, into legislation has been long recognized as an acceptable practice on both the state and federal levels unless prohibited by constitutional provisions.” Id. at 477 , 246 A.3d at 625 (cleaned up).

The Court explained: When the MWHL was enacted, the Portal-to-Portal Act amendments to the FLSA had been in existence for decades and the Legislature was aware of this. Since its enactment, the Legislature has passed several amendments but has left “work” undefined as it is in the FLSA. Both statutes and regulations read and define compensable hours of work similarly. . . . [I]n our view, Maryland law comports with the FLSA. As a result, the MWHL and its regulations must be read as interrelated parts of the statutory scheme that includes the FLSA, the Portal-to-Portal Act and accompanying regulations.

Amendments to COMAR that directly incorporated certain FLSA regulations, but did not expressly adopt Portal-to-Portal Act language, do not preclude the conclusion that the Legislature intended to partially incorporate the Portal-to-Portal Act into the MWHL when enacting the statute. Id. at 478-49 , 246 A.3d at 625-26 (cleaned up). The Court of Special Appeals concluded that the circuit court did not err in granting summary judgment in favor of DGS. See id. at 483 , 246 A.3d at 629 .

The Court determined that Amaya and Gonzalez “were not entitled to travel time from the Rosecroft parking lot to the MGM worksite.” Id. at 483 , 246 A.3d at 629 . As to whether Rosecroft constituted a worksite, the Court of Special Appeals stated that it must examine “whether the employee performed part of their job function at [a] location[,]” not whether the - 12 - employee was required to report to the location. Id. at 483 , 246 A.3d at 629 . Using that analysis, the Court determined that no job functions were performed at Rosecroft and held that the control test, i.e., the question of whether the employees were required to report to a certain location, was not dispositive in determining what constitutes a worksite.

See id. at 483 , 246 A.3d at 629 . On April 13, 2021, Amaya and Gonzalez petitioned for a writ of certiorari, raising the following three issues: 1. Do the MWHL, the MWPCL and COMAR adopt and incorporate the FLSA, PPA and CFR sections where the Maryland statutes, regulations and legislative history never adopted or incorporated them? 2. Is the definition of “work” under the MWHL, MWPCL and COMAR limited to what is considered “compensable work” under the PPA, despite the Maryland General Assembly and regulators never incorporating the federal laws or otherwise saying so? 3.

Does a “worksite” or “prescribed workplace” under COMAR 09.12.41.10 include a location that an employer directs its employees to report? On June 22, 2022, we granted the petition. See Amaya, 474 Md. 719 , 255 A.3d 1090 . Rojas As explained above, Whiting-Turner was the general contractor for the MGM Project.

In this case, Commercial Interiors, Inc. (“Commercial”), Respondent, is a drywall contractor and was a subcontractor to Whiting-Turner. F.R. General Contractors, Inc. (“F.R.”), Respondent, a drywall contractor, was a subcontractor to Commercial and employed workers to install drywall and ceilings. Juan Carlos Terrones Rojas and Jose Carlos Rueda Torres, Petitioners, were employed by F.R. to perform carpentry work at the - 13 - MGM Project. Rojas and Torres worked at the MGM Project construction site for approximately two months, from November 2015 to January 2016.

Both Whiting-Turner and MGM directed F.R.’s and Commercial’s non-managerial workforce to park at the Rosecroft parking area. To gain access to the MGM Project construction site, Rojas and Torres parked at Rosecroft and then took a bus provided by Whiting-Turner. Rojas and Torres would then pass through security and clock-in upon reaching the construction site. At the end of their shifts, Rojas and Torres took a bus back to Rosecroft.

Rojas and Torres were not compensated for the time spent waiting, traveling on the buses, and passing through security, which amounted to approximately an hour and a half to two hours each day, and F.R. and Commercial did not track the time. On April 5, 2018, Rojas and Torres filed in the Circuit Court for Prince George’s County a class action complaint on behalf of themselves and a class of similarly-situated F.R. and Commercial employees for unpaid wages and overtime wages for wait and travel time under the MWHL and the MWPCL. The complaint included three counts: violation of the MWPCL, violation of the MWHL, and unjust enrichment. F.R. and Commercial filed an answer.8 8 On January 22, 2019, Rojas and Torres filed a memorandum in support of a motion for class certification and requested a hearing.

F.R. and Commercial filed a memorandum in opposition to class certification. On April 4, 2019, the circuit court held a hearing, and on April 9, 2019, the circuit court issued an order denying the motion for class certification. The circuit court ruled that Rojas and Torres had not met the burden of proving “the numerosity and commonality factors under Rule 2-231(a).” Rojas and Torres filed a motion to reconsider the denial of class certification and a request for a hearing, and F.R. and Commercial filed an opposition. On June 5, 2019, the circuit court denied the motion to reconsider.

Rojas and Torres also filed a renewed motion for class certification or, in - 14 - On July 12, 2019, F.R. and Commercial filed a motion for summary judgment. On July 24, 2019, Rojas and Torres filed a motion for partial summary judgment. Both parties filed oppositions. On August 21, 2019, the circuit court held a hearing.

During the hearing, the circuit court ruled that there were issues of material fact “in dispute with regard to the Rosecroft area,” stating: I don’t think that these issues have been resolved on the pleadings or they are not completely clear in the law. And there are some discrepancies with regard to the documentation that has been submitted and the deposition testimony and affidavits as to whether or not the employees were required to report as a part of being able to be employed at MGM to Rosecroft to be transported there. As such, the circuit court denied both Rojas’s and Torres’s motion for partial summary judgment and F.R.’s and Commercial’s motion for summary judgment. From August 26 to 29, 2019, a jury trial was held.9 At trial, Rojas and Torres both testified that, on each day they worked at the MGM Project, they traveled from their homes, parked at Rosecroft, boarded a bus, and rode the bus to the construction site.

Once at the construction site, they displayed their badge to a scanner or guard and passed through security. They would then walk to the area of the construction site where they were working that day, meet with the crew at “gang boxes,” which is where the tools were stored overnight, sign-in, get their tools from the gang boxes, and get directions for the day. At the end of the day, the process was reversed—they returned to the gang boxes, returned the alternative, a second motion to reconsider the denial of class certification, motion for sanctions and to shorten time, and a request for a hearing. 9 Prior to trial, the circuit court bifurcated the case on the issues of liability and damages, and it was tried on the issue of liability only. - 15 - their tools to the gang box, passed back through security, boarded the bus, and returned to Rosecroft. Rojas and Torres testified that they parked at Rosecroft and used the bus because they were told to do so at an orientation given by Whiting-Turner.

Barry Schunck, a safety manager for Whiting-Turner, testified as a witness on behalf of Rojas and Torres. Schunck testified that he conducted orientations for workers for the MGM Project and that the orientations covered parking and transportation to the construction site. Schunck testified that workers were told that they could not park on the construction site and that they were provided information about transportation, specifically, that “[b]uses were scheduled and set up to leave from Rosecroft to drop off employees and pick up employees at the MGM National Harbor and take them back [] throughout the day.” He also testified that workers were not allowed to park in specified lots nearby and that being dropped off at the construction site was not permitted for safety reasons. Schunck testified, though, that workers could be dropped off in the nearby lots or park in other lots that were not expressly prohibited.

Schunck testified that workers were allowed to use public transportation or Uber. At the conclusion of Rojas’s and Torres’s case, F.R. and Commercial moved for judgment, arguing that there had been no legally sufficient evidence presented to support the MWHL and MWPCL claims, as Rojas and Torres did not perform construction work at Rosecroft, commuting time is not compensable, as demonstrated by federal law, and Rosecroft was not a worksite. Counsel for Rojas and Torres responded, arguing that Maryland has not adopted the PPA and that Rojas and Torres were reporting to where they were instructed to be by their employer and therefore were on duty at that time. Counsel - 16 - for Rojas and Torres contended that, from the evidence, the jury could easily find that Rosecroft is part of a prescribed workplace.

The circuit court granted the motion for judgment, ruling from the bench and making the following findings: The evidence in this matter has demonstrated that both [] Rojas and [] Torres [] were hired to work by F.R. [] as construction workers on the MGM project. [] Rojas testified that he rode in a carpool with three other individuals, and that they would walk approximately 200 yards from the parking areas, wait in line, and take the bus to the MGM. When they arrived to the bus stop area, they would walk to the site, proceed through the security sign-in process, as well as meet [Flores?] to get work assignments for the day, and then begin the workday. [] Torres testified that he would drive past the MGM daily in order to park at Rosecroft and take the bus. He testified that he would walk approximately 100 yards from his parking space, wait in line, and take the bus. And when he arrived, he would walk to get through the security area and wait in another line and then walk a quarter mile to get to the work area.

And he testified that when he arrived at work, the very first thing he would do was sign-in on the sheet, and he would get his -- go to the area where the toolboxes are. The sign-in time -- it’s undisputed -- was 6:00 a.m. at the worksite or 5:30 a.m. depending, and there was no checking of badges needed at Rosecroft; there was no sign-in or attendance taken at Rosecroft; no directions given at Rosecroft; and the tools were kept at the worksite at MGM. There was not any drywall business or carpentry work performed on the bus or at Rosecroft, and . . . there was no instructions of any kind given at Rosecroft with regard to the workday. There was no work done or loading up of any equipment at Rosecroft.

And when the plaintiffs went to Rosecroft, they went there only to park was [] Torres’[s] testimony. [] Torres testified also that there was no place to park at the worksite. With respect to whether Rojas and Torres were required to be compensated for time spent traveling and waiting, the circuit court ruled: In Maryland the law is clear. Employees are entitled to be compensated for all hours worked. “‘Hours of work’ means the time during a workweek that an individual employed by an employer is required by the - 17 - employer to be on the employer’s premises, on duty, or at a prescribed workplace.” And that’s COMAR [0]9.12.41.10A. In this matter, no reasonable jury could find that [Rojas and Torres] did anything other than park at Rosecroft.

There was no instruction given, no equipment loaded, no work assigned or received, no principal or integral activities were performed. Additionally under Maryland law, travel time may be included in computing work hours if the individual travels during regular work hours, travels from one worksite to another, or is called out after work in emergency situations. And that’s COMAR, the same cite, 09.12.41.10C. In this matter, no reasonable jury could find that [Rojas and Torres] were traveling during regular work hours, nor that they were traveling from one worksite to another.

And Subsection C of that section does not apply to this case. Rojas and Torres noted an appeal, and on March 2, 2021, in an unreported opinion, the Court of Special Appeals affirmed the circuit court’s judgment. See Rojas, 2021 WL 797245 , at ¹. Quoting from its opinion in Amaya, the Court of Special Appeals concluded: Based on our examination of the record, carpentry at the MGM worksite was [Rojas’s and Torres’s] job function and principal activity.

Rosecroft was not a worksite because, while there, [Rojas and Torres] were not engaged in activities that were part of their functions as carpenters. Thus, [Rojas and Torres] were not entitled to travel time from the Rosecroft parking lot to the MGM worksite and the circuit court did not err in granting [F.R.’s and Commercial’s] motion for judgment. Id. at ³ . As to the unjust enrichment claim, the Court of Special Appeals concluded that, based on the record, F.R. and Commercial moved for judgment on all claims for liability, which included the unjust enrichment claim.

Id. at ⁶ . The Court determined that, even if the circuit court did not understand the motion for judgment to encompass the unjust enrichment claim, the circuit court’s ruling that Rojas and Torres “did not perform - 18 - compensable work when parking and riding the shuttle [was] dispositive of the unjust enrichment claim.” Id.10 On April 20, 2021, Rojas and Torres petitioned for a writ of certiorari, raising the following four issues (the first three of which are identical to the issues raised in Amaya): 1. Do the MWHL, the MWPCL and COMAR adopt and incorporate the Fair Labor Standards Act (“FLSA”), PPA and CFR sections where the Maryland statutes, regulations and legislative history never adopted or incorporated them? 2. Is the definition of “work” under the MWHL, MWPCL and COMAR limited to what is considered “compensable work” under the PPA, despite the Maryland General Assembly and regulators never incorporating the federal laws or otherwise saying so? 3.

Does a “worksite” or “prescribed workplace” under COMAR 09.12.41.10 include a location that an employer directs its employees to report? 4. Did the Court of Special Appeals err in importing the federal PPA compensability requirements in determining whether a benefit was conferred on Respondents for the purpose of proving a Maryland common law unjust enrichment claim, especially when Respondents failed to move for judgment on that claim? On June 22, 2021, we granted the petition. See Rojas, 474 Md. 720 , 255 A.3d 1091 .

APPLICABLE STANDARDS OF REVIEW “Summary judgment is appropriate where ‘there is no genuine dispute as to any 10 In the Court of Special Appeals, Rojas and Torres also argued that the circuit court erred in denying the motions for class certification and in bifurcating damages and liability, and the Court determined that the circuit court did not abuse its discretion in bifurcating damages and liability and that, as there was a finding of no liability, the issue of class certification was moot. See Rojas, 2021 WL 797245 , at ⁶-7. Rojas and Torres did not raise in this Court a question as to the circuit court’s ruling on the motions for class certification and bifurcation. - 19 - material fact and [] the party in whose favor judgment is entered is entitled to judgment as a matter of law.’” Sanders v. Bd. of Educ. of Harford Cty., 477 Md. 1, 15 , 265 A.3d 1083, 1092 (2021) (quoting Md. R. 2-501(f)). “[W]e review a trial court’s grant of summary judgment to determine whether the court was legally correct.” Id. at 15 , 265 A.3d at 1092 (citation omitted). “Only when there is an absence of a genuine dispute of material fact will the appellate court determine whether the trial court was correct as a matter of law.” Dashiell v. Meeks, 396 Md. 149, 163 , 913 A.3d 10 , 18 (2006). As to a motion for judgment, we review a trial court’s grant of a “motion for judgment de novo, considering the evidence and reasonable inferences drawn from the evidence in the light most favorable to the non-moving party.” Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 393-94 , 31 A.3d 583, 587 (2011) (citations omitted). “[W]hen a defendant moves for judgment based . . . upon the legal insufficiency of the plaintiff’s evidence, the trial [court] must determine if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question, and if there is, the motion must be denied and the case submitted to the jury.” Id. at 394 , 31 A.3d at 588 (cleaned up).

Assessing a trial “court’s interpretation of a statute is a question of law which[] we review without deference.” SVF Riva Annapolis LLC v. Gilroy, 459 Md. 632, 639 , 187 A.3d 686, 691 (2018) (citation omitted). “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the General Assembly.” Lillian C. Blentlinger, LLC v. Cleanwater Linganore, Inc., 456 Md. 272, 294 , 173 A.3d 549, 561 (2017) (citation omitted). We have set forth the relevant rules of statutory construction, stating: As this Court has explained, to determine that purpose or policy, we - 20 - look first to the language of the statute, giving it its natural and ordinary meaning. We do so on the tacit theory that the General Assembly is presumed to have meant what it said and said what it meant. When the statutory language is clear, we need not look beyond the statutory language to determine the General Assembly’s intent.

If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written. In addition, we neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words that the General Assembly used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning. If there is no ambiguity in the language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends. Id. at 294 , 173 A.3d at 561-62 (citation omitted).

DISCUSSION I. Whether the PPA Has Been Adopted and Incorporated into Maryland Law and Whether the Definition of “Work” Under Maryland Law is Limited to What Constitutes “Compensable Work” Under the PPA11 The Parties’ Contentions Petitioners12 contend that the PPA has never been adopted into Maryland law. Petitioners argue that, since being enacted and amended over the years, neither the MWHL nor the MWPCL makes “a single reference, citation, or mention of the PPA.” Petitioners assert that, although certain federal regulations relating to the FLSA have been expressly incorporated into COMAR, none of the sections relating to the PPA have ever been 11 Given the interrelated nature of the first two questions in both petitions—whether the MWHL, the MWPCL, and COMAR adopt and incorporate the FLSA, the PPA, and CFR, and whether the definition of “work” is limited to “compensable work” under the PPA—we address the questions together. 12 Because the arguments made in Amaya’s and Gonzalez’s brief and Rojas’s and Torres’s brief are substantially similar, we refer to Amaya, Gonzalez, Rojas, and Torres collectively as “Petitioners.” - 21 - incorporated and instead that COMAR 09.12.41.10 describing hours of work and when travel can be included in hours of work was promulgated. Petitioners maintain that the PPA’s exclusion of compensation is in contravention of the remedial nature of the MWHL and MWPCL. Petitioners contend that Maryland law makes compensable all hours an employee is on duty, all hours that employees are required by an employer to be at a prescribed workplace, and travel between worksites.

Petitioners assert that nothing in the MWHL, MWPCL, or related COMAR regulations indicate that “Hours of Work,” as defined by COMAR 09.12.41.10, is limited to principal activities that an employee performs while working for an employer. Petitioners argue that “[g]iven the absence of any reference, express or otherwise, to the PPA’s incorporation, there is no justification for ‘grafting’ the PPA’s statutory text into the MWHL or the MWPCL as the” circuit court and Court of Special Appeals did in the cases. DGS responds that the Court of Special Appeals correctly concluded that the MWHL and its regulations are interrelated parts of a statutory scheme that includes the FLSA, the PPA, and corresponding federal regulations. DGS contends that the purposes of the FLSA, as amended by the PPA, and the MWHL are the same, and that the General Assembly mirrored the MWHL on the FLSA.

DGS argues that the relevant COMAR regulation defining “work” under the MWHL mirrors the CFR related to the FLSA. DGS asserts that the “General Assembly relied on and, therefore, incorporated the FLSA and the PPA amendments when it passed the MWHL.” DGS maintains that, when the General Assembly enacted the MWHL, it did so in the context of the history of the FLSA and the - 22 - PPA and “knowing that incorporating the FLSA into the MWHL by general reference also meant incorporating the PPA regarding compensable time unless they expressly stated otherwise.” As such, DGS contends that the MWHL and COMAR must be read to include the PPA’s requirement that an employer is not required to pay an employee wages for traveling to and from the actual place of performance of a principal activity which the employee is employed to perform and activities that are preliminary and postliminary to the employee’s principal activity. F.R. and Commercial contend that the FLSA, as amended by the PPA, is Maryland law. F.R. and Commercial argue that the MWHL is Maryland’s analog to the FLSA, that Maryland courts look to decisions under the FLSA in interpreting the MWHL and that, under the FLSA, the time claimed by Rojas and Torres is not compensable.

F.R. and Commercial assert that Maryland courts have recognized the PPA is a part of Maryland wage law. F.R. and Commercial contend that it is significant that Maryland has not stated that the PPA is not part of the MWHL and the General Assembly enacted the MWHL twenty years after the FLSA was amended by the PPA, at a time when the General Assembly would have been “aware of the state of the FLSA[.]” The FLSA, the PPA, and the CFR In 1938, the United States Congress enacted the FLSA.13 As originally enacted, the 13 29 U.S.C. § 202 sets forth the “Congressional finding and declaration of policy” for the Act as follows: (a) The Congress finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental - 23 - FLSA established a minimum wage, see 29 U.S.C. § 206 (a)(1); 52 Stat. 1062 , and required that employers engaged in commerce or in the production of goods for commerce provide employees overtime compensation for each hour worked beyond a forty-hour workweek, see 29 U.S.C. § 207 (a), 52 Stat. 1063 . The FLSA, as originally enacted and is still the case today, does not define the term “work.” See 29 U.S.C. § 203 . Rather, the FLSA defines the term “employ,” which “includes to suffer or permit to work.” 29 U.S.C. § 203 (g).

In the 1940s, in a series of cases, the Supreme Court of the United States sought to define “work” for purposes of the FLSA. In Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 , 591-92 & n.2 (1944), the Supreme Court addressed the issue of “what constitutes work or employment in underground iron ore mines within the meaning of the” FLSA, and, in particular, whether time spent by miners traveling underground in mines to and from the locations where they drilled and loaded ore constituted “work or employment for which compensation must be paid under the Act.” This issue was to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers (1) causes commerce and the channels and instrumentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States; (2) burdens commerce and the free flow of goods in commerce; (3) constitutes an unfair method of competition in commerce; (4) leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce; and (5) interferes with the orderly and fair marketing of goods in commerce. That Congress further finds that the employment of persons in domestic service in households affects commerce.

(b) It is declared to be the policy of this chapter, through the exercise by Congress of its power to regulate commerce among the several States and with foreign nations, to correct and as rapidly as practicable to eliminate the conditions above referred to in such industries without substantially curtailing employment or earning power. - 24 - important because, if the underground travel time constituted work, the miners worked more than the statutory maximum workweek and were entitled to overtime compensation for the excess time. See id. at 593 . The Supreme Court held that work or employment had the common meaning of “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Id. at 598 (footnote omitted). The Supreme Court concluded that underground travel in mines was work or employment within the meaning of FLSA, explaining: The exacting and dangerous conditions in the mine shafts stand as mute, unanswerable proof that the journey from and to the portal involves continuous physical and mental exertion as well as hazards to life and limb.

And this compulsory travel occurs entirely on [the employers’] property and is at all times under their strict control and supervision. Such travel, furthermore, is not primarily undertaken for the convenience of the miners and bears no relation whatever to their needs or to the distance between their homes and the mines. Rather the travel time is spent for the benefit of [the employers] and their iron ore mining operations. Id. at 598-99 (paragraph break and footnote omitted).

Accordingly, the Supreme Court concluded that the FLSA required that the miners be paid the appropriate compensation for such work. See id. at 603 . Later in the same year, in Armour & Co. v. Wantock, 323 U.S. 126, 126-27 (1944), the Supreme Court considered whether an employer was required to pay overtime to firefighters for time spent on an employer’s premises as on-call firefighters but the time was “put to such personal use as sleeping or recreation.” The Supreme Court described this time as “time during which these men were required to be on the employer’s premises, to some extent amenable to the employer’s discipline, subject to call, but not engaged in - 25 - any specific work” and the men were not permitted to leave the premises, except with permission, to go out to eat for dinner. Id. at 128 .

The Supreme Court stated: Of course an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer. Whether time is spent predominantly for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case.

Id. at 133 . The Supreme Court concluded that the FLSA did not exclude as work time periods spent on call simply because the firefighters had time to themselves. See id. at 134 . Less than two years later, in Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 682-83 (1946), the Supreme Court addressed working time for purposes of the FLSA and whether employees of a pottery plant were entitled to compensation for time spent walking to and from the time clock to their working places. The Supreme Court determined that the employees had demonstrated that they were required “to be on the premises for some time prior and subsequent to the scheduled working hours[,]” stating: The employer required them to punch in, walk to their work benches and perform preliminary duties during the 14-minute periods preceding productive work; the same activities in reverse occurred in the 14-minute periods subsequent to the completion of productive work. Since the statutory workweek includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace, the time spent in these activities must be accorded appropriate compensation. Id. at 690-91 .

The following year, in 1947, Congress responded by passing the PPA, amending - 26 - certain provisions of the FLSA and relieving employers of liability under the FLSA for the failure to pay employees minimum wages or overtime compensation for certain specified activities. See 29 U.S.C. §§ 251 , 252, 254.14 In particular, 29 U.S.C. § 254 (a) amended the FLSA by providing that the following activities are 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-- (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, 14 29 U.S.C. § 251 , setting forth the “Congressional finding and declaration of policy” for the PPA, provides, in pertinent part: (a) The Congress finds that the Fair Labor Standards Act of 1938, as amended, has been interpreted judicially in disregard of long-established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers with the results that, if said Act as so interpreted or claims arising under such interpretations were permitted to stand, . . . (3) there would be created both an extended and continuous uncertainty on the part of industry, both employer and employee, as to the financial condition of productive establishments and a gross inequality of competitive conditions between employers and between industries; (4) employees would receive windfall payments, including liquidated damages, of sums for activities performed by them without any expectation of reward beyond that included in their agreed rates of pay; (5) there would occur the promotion of increasing demands for payment to employees for engaging in activities no compensation for which had been contemplated by either the employer or employee at the time they were engaged in; . . . and (10) serious and adverse effects upon the revenues of Federal, State, and local governments would occur. - 27 - 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.[15] 15 The PPA additionally provides: (b) Compensability by contract or custom Notwithstanding the provisions of subsection (a) which relieve an employer from liability and punishment with respect to any activity, the employer shall not be so relieved if such activity is compensable by either-- (1) an express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining