Maryland’s top court Monday grappled with whether hourly construction workers must be compensated for the time they spend waiting and being shuttled between an off-site parking lot and the construction site, as instructed by their employer.
The workers’ counsel argued that compensation is owed under Maryland law because the parking lot and shuttle bus essentially serve as the employers’ “labor staging area,” where workers must wait to be driven at the employers’ direction to the worksite. But counsel for the employers told the Court of Appeals that no money is owed because the park-and-ride is merely part of the workers’ uncompensated commute to and from the work site.
Two Court of Appeals judges appeared to agree with the workers’ position, saying their employers essentially gave them no choice but to park in the designated lot and wait for the employer-provided bus. Such an exercise of employer control appears to indicate that the workday began when they arrived at the parking lot and not simply when they got to the construction site, said Judges Brynja M. Booth and Lynne A. Battaglia, a retired jurist sitting by special assignment.
The high court was considering the scope of Maryland’s Wage and Hour law as it heard an appeal brought by workers who helped construct the MGM National Harbor resort and casino in Oxon Hill between 2015 and 2016. The Prince George’s County Circuit Court and the intermediate Court of Special Appeals denied the workers’ bid to be paid for their time shuttling between the site and the parking lot at Rosecroft Raceway in Fort Washington, ruling that such “portal-to-portal” compensation was not owed under the Maryland law.
Pressing the workers’ appeal, attorney Steven M. Pavsner said his clients spent an average of two hours per day waiting and riding as instructed by and for the benefit of their employer, Schuster Concrete Construction.
The employees were doing “exactly what their employer told them to do,” said Pavsner, of Joseph Greenwald & Laake P.A. in Greenbelt.
“Is it fair for an employer to require certain conduct of their employees … and then not pay them for their time?” Pavsner added. “The employees must be compensated for that time.”
Pavsner distinguished what he characterized as Maryland’s employee-friendly Wage and Hour Law from the federal Portal-to-Portal Act, which generally allows companies not to compensate employees for being shuttled to and from parking lots.
The federal statute does not preempt the Maryland law, which essentially defines a worksite as “a place where the employee is required to report,” Pavsner said. The workers were required to report to the Rosecroft Raceway parking lot and thus must be compensated for their time being shuttled to and from the worksite about 5.5 miles away, he added.
Attorney Levi S. Zaslow, who was representing another group of construction workers with the same claim against a different MGM contractor, told the high court his clients deserved compensation because — by waiting for and taking the shuttle bus — they were “fulfilling the requirements of their employer,” F.R. General Contractors Inc.
Zaslow is with Smithey Law Group LLC in Annapolis.
But Stephen M. Silvestri, Schuster Concrete’s attorney, said the parking lot and shuttle bus were just that and not part of the worksite at MGM, where the employees clocked in and went through security and where their supervisors were located and their tools were kept.
“There was no staging of anything at Rosecroft other than being a parking lot,” said Silvestri, of Jackson Lewis PC in Baltimore. “They went there and did no work. They went there to board a bus.”
This is “a commuting case, not a work case,” Silvestri added.
But Judge Robert N. McDonald appeared to disagree, saying the park and ride would be more than a mere commute for an employee who lived closer to the MGM hotel than to Rosecroft. That employee would have to drive the greater distance to the raceway lot under the employer’s instruction, McDonald said.
“It could be doubling or tripling their time” to get to work, McDonald added.
Silvestri responded that a tough commute was inevitable because parking was unavailable at the MGM construction site. He said the Rosecroft lot and shuttle bus were provided for the convenience of the employees so they could arrive at work on time.
Michael J. Jack, F.R. General’s attorney, also said compensation was not owed to the workers for waiting and riding the shuttle bus.
“No work of any kind was performed at the parking lot” or on the bus, said Jack, a Marriottsville-based lawyer.
“There was no work done,” he added. “It was not allowed.”
The Court of Appeals is expected to issue its decisions by Aug. 31 in the two cases, Mario Ernesto Amayo et al. v. DGS Construction LLC d/b/a Schuster Concrete Construction et al. and Juan Carlos Terrones Rojas et al. v. F.R. General Contractors Inc. et al., Nos. 14 and 17, September Term 2021.