Hess v. Department of Juvenile Services

THIEME, J. This is the second appeal to this Court by Samuel Hess, Edward Martin, David Weimer, and Samuel Harmon from a decision of an administrative law judge (“ALJ”), 1 rejecting their claim that they are entitled to compensation for the time they are required to spend “on call” in their employment as Juvenile Transportation Officers (“JTOs”) with the Maryland Department of Juvenile Services. The case was remanded by this Court in an unreported opinion by Judge Mary Ellen Barbera (since elevated to the Court of Appeals), filed on August 9, 2006. 2 We shall restate portions of that opinion where pertinent. The crux of the parties’ variously worded questions presented is whether the ALJ committed legal error in the manner in which he defined the breadth of the provision in COMAR 17.04.11.02B(l)(e), which renders time away from the work place compensable where “the employee is on call and waiting for work, and the employee’s personal activities are substan ⁵⁹³ tially restricted.” For the reasons that follow, again we must conclude that the ALJ committed legal error, vacate the judgment of the circuit court affirming the AL J’s decision, and remand the case to that court with directions to remand the case to the Office of Administrative Hearings. Facts and Legal Proceedings 3 The Department employs eight JTOs.

As part of their duties as JTOs, appellants are required to be on call to provide emergency transportation services and to handle emergency situations for juveniles. The nature of the on-call duty is not disputed. The JTOs rotate being on call throughout the year, such that each JTO is assigned to on-call duty for one week, every eight weeks. While on call, the JTO is required to provide 24-hour emergency transportation for the night detention runs and for medical appointments as needed throughout the youth centers.

According to one employee witness’s undisputed testimony, the on-call driver is issued a pager on the Monday of his on-call week and must carry that pager until the following Monday. During the week that a JTO is on call, he or she also works a regular weekday shift from 1 p.m. to 9 p.m. Although other drivers are assigned to work eight hour shifts, starting at either 4 a.m. or 6 a.m. during the on-call time, JTOs, according to appellant Harmon, “still have to be available because there [ ][are] restrictions on drivers, how many kids they can haul.” The on-call JTO must be prepared to respond by telephone within thirty minutes of receiving a page. According to appellant Hess, he typically does not receive more than two calls during the week that he is on call.

After responding, the JTO generally is required to report in person to the juvenile’s holding place. When told to report to the pick-up site, the JTO must change into uniform, pick up the transportation van at a designated location, perform a safety check of the van and ⁵⁹⁴ the equipment, and then drive to the pick-up site. All of that must be accomplished within two hours of receiving the page or the JTO may be subject to discipline, according to the Department’s written policy. All the employee witnesses testified that they could not leave the house without taking the risk that, if paged, they would not be able to respond within the two-hour response time that the Department mandates.

They lived and worked in Western Maryland, where they could have to drive well over 100 miles to the pick-up sites after driving to the sites where the vans were kept. They testified to particular activities they gave up during the on-call weeks, most away from home (church, club, and social activities, visiting family members, eating in restaurants, viewing children’s team sports, camping, hunting, and fishing), but some at home (home chores that could not be interrupted, such as pouring concrete, or that involved noisy tools that would prevent hearing the pager). The ALJ acknowledged that it had also been pointed out, and he did not question, that they could not drink alcoholic beverages while on call. He generally found the testimony supporting appellants’ factual claims credible.

By agreement, no new evidentiary hearing followed the remand. The parties appear to agree that appellants have never been disciplined for missing calls or exceeding the two-hour response time. 4 The on-call policy had been in effect for a number of years, but it was not formalized in writing until November 18, 2002. On June 20, 2003, appellants requested to be paid for their time spent on call. The Department denied their request on July 15, 2003.

Appellant Harmon filed a grievance and appellants Hess, Weimer, and Martin (hereinafter “Hess et al.”) together filed a combined grievance. The two grievances were identical in ⁵⁹⁵ material respect. The two grievances made their way through the agency appeal process and were scheduled for hearings before the ALJ on June 17, 2004. The ALJ first heard the case of Hess et al., and incorporated the record in that case into the record in Harmon’s case, which the ALJ heard next.

The evidence and the arguments at the hearing centered on whether appellants’ on-call time constitutes compensable “work time” as that term is defined under COMAR 17.04.11.02B(l)(e). That regulation provides, (1) Work time includes time during which the employee: (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. Although the Department raised the preliminary question of whether appellants are “waiting for work” when they are on call, the parties and the ALJ focused their attention upon whether appellants’ personal activities are “substantially restricted” when they are on call. On July 20, 2004, the ALJ issued two nearly identical decisions, stating in both: “While I agree that the Employees’ activities were restricted,! ] I cannot find that their activities were substantially restricted.” In support, the ALJ cited the standard for on call time that is set forth in a regulation promulgated under the Fair Labor Standards Act (“FLSA”), 29 C.F.R. § 785.17 , and a federal case interpreting that standard. 5 He did not cite any Maryland case law.

The ALJ “conclude[d] as a matter of law that [appellants] [were] not entitled to pay of compensation for being on call, i.e., responding to emergency situations and securing emergency transportation. COMAR 17.04.11.02B(l)(e).” ⁵⁹⁶ This Court’s Previous Opinion This Court stated the question presented on the first appeal as “[w]hether the ALJ properly decided that appellants’ ‘on call’ time is not ‘work time’ within the meaning of COMAR 17.04.11.02B(l)(e) because appellants’ personal time is not ‘substantially restricted’ while they are on call.[ ]” (Footnote omitted.) In its discussion, the Court initially noted appellants’ argument that the ALJ erred by following a federal court’s interpretation of the FLSA regulation relating to on-call time, because the Maryland Code’s State Personnel and Pension Article (“SPP”) § 8-302 provides: (a) Construction of Subtitle. — This subtitle [Overtime Compensation] shall be interpreted and applied, to the extent applicable, in accordance with the federal Fair Labor Standards Act; (b) Entitlement. — All employees subject to this subtitle are entitled to the greater of: (1) The benefits that are provided in this subtitle; or (2) To the extent applicable, the benefits required by the federal Fair Labor Standards Act. The Department countered, the Court further noted, that the ALJ was correct in relying on case law interpreting the on-call regulation promulgated under the FLSA. That regulation, 29 C.F.R. § 785.17 , states: An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call.” An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working on call.

Our opinion continued: After the parties filed their appellate briefs, the Court of Appeals decided Dep’t of Public Safety and Correctional Servs. v. Palmer, 389 Md. 443 , 886 A.2d 554 (2005). As we ⁵⁹⁷ shall explain, Palmer , although addressing a different paragraph within COMAR[,] 17.04.11.02B, supports much of appellants’ argument on appeal and demonstrates the necessity of a remand for further proceedings before the ALJ. After acknowledging the “highly deferential standard of review” that pertains to decisions of administrative agencies and of administrative law judges on their behalf, except where “the administrative decision is premised upon an erroneous conclusion of law,” 6 the Court approved the ALJ’s focus on the federal regulation as well as on the Maryland regulation. The Court explained, however, that the ALJ “must [examine both regulations], first, with an eye toward ascertaining which of the two provisions affords greater benefits to appellants.” Turning to the Court of Appeals’ decision in Palmer, supra, 389 Md. 443 , 886 A.2d 554 , this Court wrote: SPP § 8-302 led to the promulgation of COMAR 17.04.11.02B.

See [Comptroller of Maryland v.] Miller, [ 169 Md.App. 321 ], [342], [ 901 A.2d 229 ] [(2006)], 2006 WL 1766561, at ¹² . The Palmer Court therefore determined that the “greater benefits” language under SPP § 8-302(b)(1) covers ... the Work Time definition in COMAR 17.04.11.02(B)(1)(g). Consequently, employees are entitled to the greater of the benefits under COMAR or the FLSA. See 389 Md. at 454-455 , 886 A.2d 554 .

Cf. Miller, [169 Md.App.] [at 352], [ 901 A.2d 229 ], 2006 WL 1766561, at ¹⁸ (interpreting COMAR 17.04.11.02B(j) and recognizing that, in certain circumstances, state law may go above and beyond the FLSA). The Palmer Court declined to uphold the Department’s argument that “job-related work time under [COMAR 17.04.11.02B] ¶ (g) is no broader than under federal law.” Id. at 454 , [ 886 A.2d 554 ], The Court reasoned that if COMAR is no broader than federal law and is “merely ⁵⁹⁸ coextensive,” then the addition of subsection (2) of COMAR 17.04.11.02, ie., that “[w]ork time includes any other time defined as work time under the Fair Labor Standards Act (FLSA), if applicable,” would be superfluous. See id.

In other words, if the two bodies of law were essentially the same, then there would be no reason to include a catchall provision to capture other situations that the FLSA might cover, but COMAR does not (and vice versa). Consequently, the Court relied on SPP § 8-302 to conclude that “COMAR 17.04.11.02B(2) is intended to be a floor and not a ceilingf,]” and that it “discern[ed] no legislative intent to limit ¶ (g) to the scope of federal law.” Id. at 454-455, [ 886 A.2d 554 ]. The Court went on to hold that “there is no good reason why” the Palmer Court’s analysis would apply to ¶ (g) and not to ¶ (e), the provision of COMAR 17.04.11.02B in issue here. Accordingly, it wrote: The ALJ was required to determine whether, by application of SPP § 8-302, ¶ (e) provides the employees it covers with greater benefits that those provided under the FLSA before determining the ultimate question of whether appellants are entitled to compensation for their time spent on call.

Moreover, as the Palmer court also made clear, the benefits under ¶ (e) cannot be assumed to be the same as those that the FLSA provides. See 389 Md. at 454 , [ 886 A.2d 554 ], The Court then instructed the ALJ to compare the benefits available under the COMAR and FLSA on-call provisions and “apply the provision that offers the greater benefits to the question of whether appellants are entitled to compensation.” It concluded by noting that under Palmer, 389 Md. at 452-453 , 886 A.2d 554 , the ALJ, not this Court, “must make those determinations in the first instance ... as the final decision maker for the Department, who must construe the statutes and regulations it administers.” Following the remand, the ALJ heard oral arguments and, on February 6, 2007, issued a new decision. We shall discuss the pertinent aspects of that decision below. ⁵⁹⁹ Discussion Again, we are “limited to deciding the narrow question of whether the ALJ’s legal decisions for the agency are ‘premised on an erroneous conclusion of law.’ ” Palmer, 389 Md. at 453 , 886 A.2d 554 . The ALJ accurately paraphrased this Court’s instructions as described above, but he elected to determine the breadth of benefits under the State and federal regulations solely by deducing the “plain meaning” of their language.

Thus, he wrote: From the outset, reading both the Federal and State on call provisions, it is clear that the Maryland COMAR provision provides more qualifiers than the Federal counterpart. When dealing with employees who are NOT required to remain on the employer’s premises, the Federal provision merely states that an employee who is required to leave word at home or with company officials where he may be reached is not working while on call. There are no qualifiers regarding restrictions on personal activities included and the provision flatly states that if not on the employer’s premises and essentially only required to respond or otherwise be available to the employer, an employee is not on call and thus not to be compensated. On the other hand, the State provision includes an additional qualifier by stating that an employee who is not required to be on the employer’s premises but still required to be available to the employer is not on call only if the employee’s personal activities are not substantially restricted.

Affording both provisions their ordinary and plain meaning, it is clear that the Maryland provision conveys greater benefit to an employee by considering whether this employee’s personal activities are substantially restricted before denying on call compensation while the Federal provision does not. Given this, Md Code Ann., State Pers. & Pens. § 8-302[b] provides: All employees [subject to this subtitle are entitled] to the greater of: (1) The benefits that are provided in this subtitle; or ⁶⁰⁰ (2) To the extent applicable, the benefits required by the federal Fair Labor Standards Act. As such, the provisions of COMAR 17.04.11.02 provide the greater benefit and should be applied here. (Emphasis in original.) The ALJ did not discuss the federal provision further.

Rather, he relied on the definitions of “substantial” in the Merriam Webster Online Dictionary 2006-2007 and in Black’s Law Dictionary (6th Edition, page 1428) to “conclude that the phrase ‘substantial’ means something between scant and total or between slight and complete.” Then, after reasoning that a “restriction of activities is a limitation of these activities” and that the word “restricted” alone would have sufficed if the legislature had “meant to include any restriction, however slight, negligible, paltry or flimsy,” he further concluded that the legislature “meant to mandate that the restrictions