Amaya v. DGS Construction LLC

Mario Ernesto Amaya, et al. v. DGS Construction, LLC, et al. No. 1857, Sept. Term 2019 Opinion by Shaw Geter, J. Statutes Maryland can adopt an amendment to a federal statute, where the Legislature has enacted a state’s equivalent of the federal statute, without specifically expressing that we have done so. Statutes Incorporating statutory provisions by reference, partially or entirely, into legislation is an acceptable practice on both the state and federal levels unless prohibited by constitutional provisions. When passed, the incorporated act becomes a part of the incorporating legislation, and it is as if the incorporated act was explicitly written into the law. Labor and Employment The Maryland Wage and Hour Law and its regulations are interrelated parts of a statutory scheme that includes the Fair Labor Standards Act, Portal-to-Portal Act amendments and accompanying regulations as they relate to an employee’s principal activity.

Labor and Employment To determine what constitutes a worksite, courts must examine not whether the employee was required to report to a location, but whether the employee performed part of their job function at the location. Circuit Court for Prince George’s County Case No. CAL17-26383 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1857 September Term, 2019 MARIO ERNESTO AMAYA, ET AL. v. DGS CONSTRUCTION, LLC, ET AL. Kehoe, Beachley, Shaw Geter, JJ. Opinion by Shaw Geter, J. Filed: February 24, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-25 14:15-05:00 Suzanne C. Johnson, Clerk This is an appeal from an order of the Circuit Court for Prince George’s County granting appellees’ motion for summary judgment and denying appellants’ motion for partial summary judgment.

Appellants timely appealed and present the following questions for our review: 1. Did the circuit court err in granting Appellees’ motion for summary judgment on Appellants’ Maryland state law claims based upon the Portal-to-Portal Act, contrary to the requirements under the Maryland Wage and Hour Law and the Maryland Wage Payment and Collection Law? 2. Did the circuit court err in denying Appellant’s motion for partial summary judgment that Appellees were liable for unpaid wages for time spent waiting for buses and traveling between two worksites as required under COMAR § 09.12.41.10? For reasons discussed below, we conclude there was no error and we affirm.

BACKGROUND Appellants, Mario Ernesto Amaya and Jose Norland Gonzalez,1 are carpenters who performed construction work for appellees, DGS Construction, LLC d/b/a Schuster Concrete Construction and Daniel G. Schuster, the CEO of DGS, a subcontractor on the construction site of the MGM National Harbor resort and casino located in Prince George’s County, Maryland, in 2015-16.2 Appellees required appellants to gain access to the MGM site by parking at the Rosecroft Raceway and then riding a shuttle bus provided by Whiting- 1 Jose Amadeo Castillo also filed suit in the initial complaint but was removed as a named Plaintiff. 2 DGS Construction, LLC d/b/a Schuster Concrete Construction was a concrete subcontractor of the general contractor Whiting-Turner. Turner, the general contractor, at no cost to appellants.3 Appellants went through security and clocked-in upon reaching the MGM. At the end of their shifts, appellants were required to ride a shuttle back to their vehicles parked at Rosecroft. Appellants were not compensated for wait and shuttle travel time or time spent passing through security upon entry to, or departure from, the MGM.

The average length of uncompensated time was two hours, which was not recorded by appellees. During the transit time frame, appellants did not receive work directives or instructions, load or maintain tools or equipment, don or doff protective or specialty equipment or perform any construction work. All work was performed at the MGM. Appellants filed a Complaint and Jury Demand in the Circuit Court for Prince George’s County on September 15, 2017, and an Amended Complaint thereafter.

Appellees filed a Motion to Dismiss on April 18, 2018, which was denied by the court. Appellees then filed an Answer. Appellants filed a Motion for Class Certification on February 15, 2019. The court bifurcated the case, reserving ruling on the issue of class certification until after a trial on the merits.

Appellees filed a Motion for Summary Judgment and appellants filed a Motion for Partial Summary Judgment and Request for Hearing; both parties filed their respective oppositions. Following a hearing on August 22, 2019, the court took the matter under advisement and issued its memorandum opinion and order on November 7, 2019, granting appellees’ Motion for Summary Judgment and 3 Rosecroft Raceway is located at 6336 Rosecroft Drive, Fort Washington, Maryland, 20744. Whiting-Turner directed subcontractor employees to park at Rosecroft Raceway and ride shuttle busses to the MGM site. 2 denying appellants’ Motion for Partial Summary Judgment. The court found that “because the General Assembly chose to graft the definition of employ directly from FLSA into the [Maryland Wage and Hour Law (MWHL)], . . . the interpretative guidance . . . imposed by the existing Portal-to-Portal Act was also grafted into the MWHL.” The court held that appellants did not perform “work” at Rosecroft, and thus, Rosecroft was not a worksite for the purposes of the MWHL.

STANDARD OF REVIEW Under Maryland Rule 2-501, the grant of a motion for summary judgment is appropriate when “there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” “On review of an order granting summary judgment, our analysis ‘begins with the determination [of] whether a genuine dispute of material fact exists; only in the absence of such a dispute will we review questions of law.’” Koste v. Town of Oxford, 431 Md. 14 , 24–25 (2013) (quoting D’Aoust v. Diamond, 424 Md. 549, 574 (2012)) (citations omitted). “The standard of review of a trial court’s grant of a motion for summary judgment on the law is de novo, that is, whether the trial court’s legal conclusions were legally correct.” Id. (quoting Messing v. Bank of Am., N.A., 373 Md. 672, 684 (2003)). There are no disputes of material facts in the case before us. Rather, the parties’ dispute revolves solely around questions of law, i.e., statutory construction.

Therefore, we shall consider whether the circuit court’s grant of summary judgment in favor of appellee was proper as a matter of law. Our primary goal in statutory construction is “to discern the legislative purpose, the 3 ends to be accomplished, or the evils to be remedied by a particular provision, be it statutory, constitutional or part of the Rules.” Doe v. Montgomery County Bd. of Elections, 406 Md. 697, 712 (2008) (quoting Barbre v. Pope, 402 Md. 157, 172 (2007)). “We begin our analysis by first looking to the normal, plain meaning of the language of the statute, reading the statute as a whole to ensure that ‘no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.’” Id. (citations omitted). “If the language of the statute is clear and unambiguous, we need not look beyond the statute’s provisions and our analysis ends.” Barbre, 402 Md. at 173 . “If[,] however, the language is subject to more than one interpretation, it is ambiguous, and we resolve that ambiguity by looking to the statute’s legislative history, case law, and statutory purpose.” Id. Courts “may also analyze the statute’s ‘relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.’” Blackstone v. Sharma, 461 Md. 87, 114 (2018), reconsideration denied (Oct. 3, 2018) (quoting Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 515 (1987)).

We may also “consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.” Spangler v. McQuitty, 449 Md. 33, 50 (2016) (citations omitted). DISCUSSION Appellants argue that, under the Maryland Wage and Hour Law (“MWHL”), they are entitled to compensation for travel time between employer-designated worksites. They 4 assert that because Maryland has not explicitly adopted the Portal-to-Portal Act, the exclusions under that Act for time spent traveling between worksites cannot be used to limit their compensation. They contend that both the MWHL and the Maryland Wage Payment and Collection Law (“MWPCL”) are “remedial statute[s] to be construed liberally in favor of the employee.” See Peters v. Early Healthcare Giver, Inc., 439 Md. 646, 661 (2014).

Appellants argue that the definition of “hours of work” found in COMAR § 09.12.41.10 and the definition of “employ” contained in Maryland Code, Labor and Employment § 3-101(c), when read together, require compensation for travel from one worksite to another. Appellants cite Blackstone v. Sharma, stating that, when unambiguous on their face, courts should follow the plain language of statutes and regulations. 461 Md. 87, 119 (2018), reconsideration denied (Oct. 3, 2018). Conversely, appellees argue the MWHL is the “State parallel” to the FLSA, as amended by the Portal-to-Portal Act. They contend that the Portal-to-Portal Act has been in effect for 73 years, decades before Maryland adopted the MWHL and offers “interpretative guidance” for our analysis.

Appellees cite to Poe v. IESI MD Corp., where we explained that “because the Maryland statute is the counterpart to the Fair Labor Standards Act[,]” a federal regulation concerning the computation of overtime was “persuasive authority as to the correct interpretation of Maryland law.” 243 Md. App. 243, 252 (2019) (citations omitted). In 1938, Congress enacted the Fair Labor Standards Act, (“FLSA”), 29 U.S.C. § 201 et seq., upon finding “the existence, in industries engaged in commerce or in the 5 production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers . . . .” 29 U.S.C. § 202.4 As enacted, the FLSA established a minimum wage and mandated that employers engaged in the production of goods provide employees overtime compensation for each hour worked in excess of 40 hours during a workweek. §§ 6(a)(1), 7(a)(3), 52 Stat. 1062–1063. Congress, in 1947, passed the Portal-to-Portal Act, 29 U.S.C. § 251 et seq., amending certain provisions of the FLSA and absolving employers of liability under the FLSA for failure to pay minimum wages for certain delineated activities such as walking, riding or traveling to and from the actual workplace, and activities preliminary to or postliminary to principal work activities. 4 29 U.S.C. § 202 . “Congressional finding and declaration of policy” states: (a) The Congress finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental 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. 6 The Portal-to-Portal Act was promulgated one year after the Supreme Court’s decision in Anderson v. Mt. Clemens Pottery Co., where the Court interpreted the FLSA to provide that employees are entitled to compensation for time spent walking from the time clock to their workstations. 328 U.S. 680, 691 (1946) (noting that “[s]ince 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”). In its Portal-to-Portal Act declaration of policy, Congress stated that judicial interpretations of the FLSA disregarded “long- established customs, practices, and contracts between employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers.” 29 U.S.C. § 251 . Congress further expressed that if the judiciary continued to interpret the FLSA as it had, it would result in “continuous uncertainty on the part of industry, both employer and employee.” Id.

The Code of Federal Regulations (“CFR”), in its “General Statement as to the Effect of the Portal-to-Portal Act of 1947 on the Fair Labor Standards Act of 1938” provides: The effect on the Fair Labor Standards Act of the various provisions of the Portal Act must necessarily be determined by viewing the two acts as interrelated parts of the entire statutory scheme for the establishment of basic fair labor standards. The Portal Act contemplates that employers will be relieved, in certain circumstances, from liabilities or punishments to which they might otherwise be subject under the Fair Labor Standards Act. 29 C.F.R. § 790.2 (a) (emphasis added).5 5 The Code of Federal Regulations is the codification of regulations published in the Federal Register by the executive departments and agencies of the federal government. 7 The FLSA does not include in its language a definition of the term “work” but rather defines the term “employ.” Its meaning has remained unchanged since its enactment in 1938 and states, “‘[e]mploy’ includes to suffer or permit to work.” 29 U.S.C. § 203 . The Portal-to-Portal Act, likewise, does not explicitly define the term “work.” 29 U.S.C. § 262 ; 29 U.S.C. § 203 . The Supreme Court, in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, defined “work” “as meaning 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.” 321 U.S. 590, 598 (1944).

In Anderson v. Mt. Clemens Pottery Co., the Supreme Court defined “the statutory workweek” to include “all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” 328 U.S. 680 , 690–91 (1946); See Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers of Am., 325 U.S. 161, 167 (1945) (“workweek [is] computed on the basis of the hours spent in actual work”). In IBP, Inc. v. Alvarez, the Supreme Court further held that “[o]ther than its express exceptions for travel to and from the location of the employee’s ‘principal activity,’ and for activities that are preliminary or postliminary to that principal activity, the Portal-to-Portal Act does not purport to change this Court’s earlier descriptions of the terms ‘work’ and ‘workweek,’ or to define the term ‘workday.’” 546 U.S. 21, 28 (2005). Consistent with the Supreme Court’s “prior decisions interpreting the FLSA, the Department of Labor [, in 29 CFR § 790.6 (b),] adopted the continuous workday rule, which means that ‘workday’ is generally The CFR is comprised of 50 titles that represent areas subject to federal regulation.

Title 29 contains federal regulations relating to labor. 8 defined as ‘the period between the commencement and completion on the same workday of an employee’s principal activity or activities.’” IBP, 546 at 28 (alterations not in original). In Steiner v. Mitchell, the Supreme Court held that “activities performed either before or after the regular work shift are compensable under the [P]ortal-to-[P]ortal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which [employees] are employed.” 350 U.S. 247, 256 (1956) (alterations not in original). “[A]n activity is not integral and indispensable to an employee’s principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities.” Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27 , 35 (2014). “The integral and indispensable test is tied to the productive work that the employee is employed to perform.” Id. at 36 (emphasis in original) (citations omitted). In 1965, the MWHL was enacted by the General Assembly and is codified in the Labor and Employment Article of the Maryland Code, § 3-401, et seq. In its legislative findings and purpose, the General Assembly declared that the MWHL’s enactment would “increase stability of the industry.” Id. at § 3-402(b)(3).6 We observe that the General Maryland Code, Labor and Employment Section 3-402, “Legislative findings and 6 purpose” states, in its entirety: Legislative findings (a) The General Assembly finds that wages in some occupations in the State have been insufficient to provide adequate maintenance and to protect health. 9 Assembly’s findings are reflective of Congress’ policy findings and legislative actions that continuous judicial interpretations of the FLSA prior to enactment of the Portal-to-Portal Act would result in “uncertainty on the part of industry.” 29 U.S.C. § 251 .

As previously stated, federal regulations require that the FLSA and the Portal-to-Portal Act be read as “interrelated parts of the entire statutory scheme for the establishment of basic fair labor standards.” 29 C.F.R. § 790.2 (a). This was the context in which the General Assembly enacted the MWHL. The General Assembly, in Section 3-410 of the Maryland Labor and Employment Article, authorized the Commissioner of Labor and Industry (Commissioner) to enact regulations to enforce the MWHL, which are compiled in the Code of Maryland Regulations (“COMAR”). COMAR 09.12.41.10. defines “hours of work” as “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.” COMAR 09.12.41.10 mirrors 29 C.F.R. § 778.223 , which provides that, under the FLSA, Statement of purpose (b) The purpose of this subtitle is to set minimum wage standards in the State to: (1) provide a maintenance level that is consistent with the needs of the population for their efficiency, general well-being, and health; (2) safeguard employers and employees against unfair competition; (3) increase the stability of industry; (4) increase the buying power of employees; and (5) decrease the need to spend public money for the relief of employees. 10 “hours worked” includes “[a]ll time during which an employee is required to be on duty or to be