Amaya v. DGS Constr., LLC

• Decision Date: 13 July 2022
• Docket Number: 14, 17, Sept. Term, 2021
• Citation: 479 Md. 515,278 A.3d 1216
• Parties: Mario Ernesto AMAYA, et al. v. DGS CONSTRUCTION, LLC, et al. Juan Carlos Terrones Rojas, et al. v. F.R. General Contractors, Inc., et al.
• Court: Court of Special Appeals of Maryland

479 Md. 515

278 A.3d 1216

Mario Ernesto AMAYA, et al.

v.DGS CONSTRUCTION, LLC, et al.

Juan Carlos Terrones Rojas, et al.

v.F.R. General Contractors, Inc., et al.

No. 14, 17, Sept. Term, 2021

Court of Appeals of Maryland.

July 13, 2022

Argued by Steven M. Pavsner (Brian J. Markovitz and Erika Jacobsen White, Joseph, Greenwald & Laake, P.A., Greenbelt, MD), on brief, for Petitioners Mario Ernesto Amaya, et al.

Argued by Stephen M. Silvestri (Liane D. Kozik, Jackson Lewis, P.C., Baltimore, MD), on brief, for Respondents DGS Construction, LLC, et al.

Argued by Levi S. Zaslow (Smithey Law Group LLC, Annapolis, MD; Brian J. Markovitz, Steven M. Pavsner and Erika Jacobsen White, Joseph, Greenwald & Laake, P.A., Greenbelt, MD), on brief, for Petitioners Juan Carlos Terrones Rojas, et al.

Argued by Michael J. Jack (Law Offices of Michael J. Jack, Marriottsville, MD), on brief, for Respondents F.R. General Contractors, Inc., et al.

Amicus Curiae Public Justice Center: Michael R. Abrams, Esquire, Murnaghan Appellate Advocacy Fellow, Public Justice Center, 201 N. Charles Street, Suite 1200, Baltimore, MD 21201.

Amicus Curiae Metropolitan Washington Employment Lawyers: Alan R. Kabat, Esquire, Bernabei & Kabat PLLC, 1400 16th Street, NW, Suite 500, Washington DC 20036, Roseann R. Romano, Esquire, Murphy Anderson PLLC, 1400 K Street NW, Suite 300, Washington, D.C. 20005.

Amicus Curiae Eastern Atlantic States Regional Council of Carpenters: Seth Ptasiewicz, Esquire, Kroll Heineman Ptasiewicz & Parsons, 99 Wood Avenue South, Suite 307, Iselin, NJ 08830.

Amici Curiae Associated Builders and Contractors Greater Baltimore Chapter, Associated Builders and Contractors-Chesapeake Shores Chapter, Associated Builders and Contractors-Cumberland Valley Chapter and Associated Builders and Contractors-Metro Washington Chapter: Maurice Baskin, Esquire, S. Libby Henninger, Esquire, Rosa T. Goodman, Esquire, Littler Mendelson, P.C., 815 Connecticut Avenue, N.W., Washington, DC 20006.

Argued before:^* Getty, C.J.; *McDonald, Watts, Hotten, Booth, Biran, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Watts, J.

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 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 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.

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...