Rachel Lerner
Fri, 09/23/2022
Recently, Maryland’s highest court unanimously ruled that hourly workers must be paid for time they spend waiting and being shuttled between a remote parking lot and their worksite, if the transportation is required by their employer. Mario Ernesto Amayo et al. v. DGS Construction LLC et al. and Juan Carlos Terrones Rojas et al. v. F.R. General Contractors Inc. et al., Nos. 14 and 17, September Term 2021. According to the Court of Appeals, Maryland’s wage laws have not incorporated the Portal-to-Portal Act, and therefore, require compensation for all time that is controlled by the employer. This means that in Maryland, and a number of other states, if an employer controls the employee’s time, such as requiring employees to undergo security checks before and after their shifts, or undergo COVID testing or other such activities, the employer must pay for this time.
This ruling represents a departure from the Fair Labor Standards Act (FLSA), which incorporates the Portal-to-Portal Act. The Portal-to-Portal Act excludes time spent traveling to and from the place of work, and preliminary and postliminary work activities, as compensable time under the FLSA. For example, in Integrity Staffing Solutions, Inc. v. Busk, the Supreme Court considered whether time spent by warehouse workers on security screenings before leaving the warehouse each day was compensable. 574 U.S. 27 (2014). The Court concluded that the security screenings were not compensable because they were not an “integral and indispensable” part of the employees’ duties, and they were not “principal activities which the employee is employed to perform.” Id. at 35.
In contrast to Busk, under the new Maryland ruling, such security screenings would be compensable, as that time is time that is controlled and required by the employer. As many as 27 other states would likely consider such time compensable, breaking from the Portal-to-Portal Act. These states include California, whose wage laws state that employees must be paid for all time that is under the employer’s control and has held that security screenings should be considered paid time if under the company’s control. Frlekin v. Apple, Inc., 258 Cal. Rptr. 3d 302 (Cal. 2020). Other states that have wage laws that depart from the Portal-to-Portal Act include Colorado, New Jersey, Illinois, and New York.
MSE represents workers who have not been compensated for all of their wok time. For more information, visit https://www.mselaborlaw.com/practice-areas/unpaid-regular-pay-overtime. If you believe your employer has failed to compensate you for all of your time at work, please feel free to contact us.
