Department of Public Safety & Correctional Services v. Palmer

RODOWSKY, J. This is an action, brought by the appellant, Department of Public Safety and Correctional Services (the Department or Management), for judicial review of the final administrative decision of employee grievances that were consolidated for hearing and decision. Appellees (the Grievants) are employed at the Eastern Correctional Institution (ECI) in non-uniformed positions in the Case Management and Commitment Records Units. 1 The Grievants claimed, inter alia, that the ECI security search policy, effective September 17, 2001, required them to use personal leave time to undergo searches and related delays while entering and exiting the Institution. Unsuccessful before the Warden and the designee of the Secretary of the Department, the Grievants appealed to the Secretary of Budget and Management (the Secretary) pursuant to Maryland Code (1993, 2004 RepLVol.), § 12-205 of the State Personnel and Pensions Article (SPP). When the grievances were not settled at that third stage of the grievance procedure, the Secretary referred the grievances to the Office of Administrative Hearings, as required by SPP § 12-205(b)(2)(ii).

The Administrative Law Judge (ALJ) ruled in favor of the Grievants on the issue that is before us. The ALJ’s decision was upheld by the Circuit Court for Somerset County on judicial review. 2 The Department ap ⁴⁴⁵ pealed to the Court of Special Appeals, and this Court issued the writ of certiorari on its own motion prior to consideration of the appeal by the intermediate appellate court. The Department raises a single issue, ie.: “Did the ALJ err, as a matter of law, by misinterpreting and misapplying a state overtime regulation to require that correctional employees be compensated for the time spent waiting to be searched, pursuant to an institutional policy that required searches for all persons entering a secure portion of the correctional institution, where there was no evidence that the searches were related to the employees’ job functions or principal activities.” The facts as found by the ALJ are as follows: “1. At all times relevant to this proceeding, the Grievants were employed at ECI, as non-uniformed personnel, working in the Case Management Unit. “2.

In September, 2001, the Warden instituted a Security Policy that required all personnel at ECI to be searched prior to entering the facility. “3. Sometime before that, Management had moved the time clock used by the Grievants to clock in and out. “4. Originally, the Grievants used the time clock in the administrative building, adjacent to the parking lot. “5. Any individual can enter the administrative building from the parking lot without going through any security. “6.

The time clock, however, was moved to a location in the case management area, at the far end of the [E]ast [Cjompound. “7. This meant that case management staff could not punch in [on] arrival at work, until going through several secure ports, beginning at the East Compound gate. ⁴⁴⁶ “8. In September, 2001, the Warden required all staff to be searched before entering or leaving the institution. “9. In addition, shortly thereafter, the East Compound Gate, the closest entry way to the Case Management area[,] was closed. “10.

As a result of the closing of the East Compound Gate, employees going to the Case Management area had several more security checks to pass through, including the main entry to the institution. “11. As a result of the searches done since September, 2001, it takes the Grievants 10 to 15 minutes longer to get to the Case Management area where their time clock is, at the very least.[ 3 ] “12. On some days, the delay is longer, as when no officer is at a post necessary for the Grievants to pass through security or when an inmate is arriving. “13. If an employee is delayed by the search requirements and security, in getting to an office location, the Grievant must use his/her leave time. “14.

Grievant Lori Ball had to use leave because a surprise ‘hostage scenario’ drill delayed her ability to get to her work area[ 4 ] “15. Grievant Lori Ball was directed out of the security line, and sent to make food by Management during the hostage scenario. “16. On another occasion, Grievant Stephanie Boucher was late arriving to her work station because the ‘officer in the bubble’ at one of the secure gates was in the restroom. ⁴⁴⁷ “17. As a result of being late, Grievant Stephanie Boucher had to use her personal leave time. “18.

An employee late to a work station because of going through search and security is subject to disciplinary action.[ 5 ] “19. Although the Grievants have the right to a one half-hour duty free lunch, they are unable to leave the institution to take lunch without using leave time because the amount of time it takes to pass through security precludes them from finishing lunch within thirty minutes. “20. In order to avoid discipline, the Grievants fill out leave slips before leaving the facility for lunch, as they can never be sure whether they will be able to clock in as a result of the delays in passing through security. “21. Grievant Linda Ramsey had to leave and to return to work frequently to attend medical appointments while she was pregnant. “22.

An extra 15 minutes was added for each entry and exit to the amount of sick leave Grievant Ramsey had to take because she had to undergo search and security procedures. “23. Female correctional officers pat down females entering the facility. “24. Grievant Palmer has been delayed getting to work because no female correctional officer was available to do her pat down. “25. The Grievants have filed a grievance, seeking to use the administrative clock.” The Grievants made plain that they do not contest the requirement that they clear security.

They seek to punch in before, and out after, they have cleared security, so that they will not be charged personal leave time if they do not arrive at ⁴⁴⁸ their work stations by the start of a shift or if they leave their work stations before the end of a shift. In other words, the issue raised is whether the time spent in clearing security is part of the Grievants’ work time. The ALJ rested the agency’s decision on a construction of a regulation of the Secretary, Md. Regs. Code (COMAR), Title 17, “Department of Budget and Management,” Subtitle 04, “Personnel Services and Benefits,” Chapter 11, “Leave,” § 02, “Workweek, Overtime and Compensatory Time,” and particularly on § 17.04.11.02B(l)(g).

The latter, in context, reads: “B. Work Time. “(1) Work time includes time during which an employee: “(a) Is on duty, whether at the employee’s principal job site or at a remote location as part of the State’s telecommuting program; “(b) Is on paid leave; “(c) Participates in training activities as a job assignment; “(d) Is on the employer’s premises and is on call and waiting for work; “(e) Is not on the employer’s premises, but is on call and waiting for work, and the employee’s personal activities are substantially restricted; “(f) Is changing into and removing program-specified clothing and equipment necessary for the performance of the job; “(g) Participates in activities that are job-related immediately before the beginning or immediately after the end of an assigned shift; “(h) Travels to and from work after being recalled to work by the appointing authority or the appointing authority’s designated representative after the employee has completed the standard workday; “(i) Travels to and from work after being called to work by the appointing authority or the appointing authority’s designated representative on the employee’s scheduled day ⁴⁴⁹ off if the employee works fewer than 8 hours as a result of being called on the employee’s scheduled day off; “(j) Travels between home and a work site other than the assigned office, in accordance with the Standard Travel Regulations under COMAR 23.02.01; “(k) With prior supervisory approval, investigates and processes a disciplinary appeal or grievance, and participates at any conference or hearing relating to a grievance or appeal, in accordance with COMAR 17.04.07.07; or “(l) With prior supervisory approval, uses reasonable time to investigate and process a complaint under State Personnel and Pensions Article, Title 5, Annotated Code of Maryland. “(2) Work time includes any other time defined as work time under the Fair Labor Standards Act (FLSA), if applicable.” (Emphasis added). The ALJ concluded that waiting to undergo and undergoing security checks at ECI constituted “job-related” activities of the Grievants, as set forth, but only to the extent set forth, in COMAR 17.04.11.02B(l)(g), reasoning as follows: “First, the requirement to undergo security on site is a prerequisite to the [ejmployee’s commencement of and completion of the work day. Second, it cannot be accomplished off-site, on the employee’s own time. Third, this pre-requisite is mandated by Management.

Fourth, as evidenced by Grievant Ball’s experience, while in line, employees are subject to Management’s assignment and supervision. Fifth, the time it takes for an employee to undergo security can be unduly delayed by Management activities such as a lock-down, or entry of inmates into the institution or unavailability of a female officer.” The ALJ, however, carefully limited the Grievants’ work time to the scope of COMAR 17.04.11.02B(l)(g), holding that time spent clearing security checks was “job-related” only when entering or exiting a shift. 6 ⁴⁵⁰ The ALJ also stated that “the only reason to consider the activity not to be ‘job-related’ is that all individuals [entering and leaving the Institution], whether employees or not, undergo the same security check.” However, the ALJ rejected that argument by concluding that, “for the Grievants, the activity is ‘job-related’ even if it is not for every one else.” Addressing implementation of the ruling, the ALJ said: “[T]he real issue raised by the Grievants is whether their activities in waiting to, and undergoing security, constitute work time. Having concluded that it does constitute ‘work time,’ Management can no longer require the Grievants to use their leave for this activity. However, the manner and method that Management chooses to comply with this requirement is up to Management.

One way would be to allow use of the clock in the administrative building, but Management is free to utilize any other method, as well.” The Department had argued before the ALJ, as it argues in this Court, that COMAR § 17.04.11.02B(1)(g) (hereinafter ¶ (g)) “was intended to do nothing more than compensate an employee for those preliminary and postliminary activities that are compensable under the [Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.] as ‘integral parts of a principal activity.’ ” Brief of Appellant at 11. The derivation of the argument is the Portal to Portal Pay Act, 29 U.S.C. §§ 251 through 262. Title 29, U.S.C. § 254 provides in part that an employer has no liability under certain federal statutes, including the FLSA, on account of failure to pay minimum wages or overtime compensation for “(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[.]” ⁴⁵¹ 29 C.F.R. § 785.24 (b) explains that “[t]he term ‘principal activities’ includes all activities which are an integral part of a principal activity.” The United States Supreme Court in Steiner v. Mitchell, 350 U.S. 247, 256 , 76 S.Ct. 330, 335 , 100 L.Ed. 267 , 273 (1956), has interpreted the Portal to Portal Pay Act to mean that “activities performed either before or after the regular work shift, on or off the production line, are compensable ... if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.” The Department’s