Employers owe hourly workers for required park and rides, Md. high court says

Hourly workers must be paid for the time they spend waiting and being shuttled between a remote parking lot and the worksite if such transportation is required by their employer, Maryland’s top court unanimously ruled Wednesday.

Compensation is owed under Maryland wage laws because the parking lot and shuttle bus essentially serve as the employers’ mandatory labor staging area, the Court of Appeals held in its 7-0 decision involving workers who helped build the MGM National Harbor resort and casino in Oxon Hill between 2015 and 2016.

The high court said the state laws and implementing regulations are not preempted by and provide greater protection than the federal Portal-to-Portal Act, which provides that travel to and from a primary worksite is generally not compensable. The court noted the Maryland laws never mention or seek to incorporate the Portal-to-Portal Act, a silence that cannot be interpreted as the General Assembly’s assent to the federal law.

“To read the PPA into the statutes at issue would give the MWHL (Maryland Wage and Hour Law) and MWPCL (Maryland Wage Payment and Collection Law) a meaning that is not present in the language of the statutes and to engage in a forced interpretation that would limit the meaning of compensable work in Maryland,” Judge Shirley M. Watts wrote for the high court.

MGM National Harbor in Oxon Hill (The Daily Record/File photo)

“It does not make sense that the General Assembly would have silently or implicitly adopted or incorporated the PPA into Maryland law,” Watts added. “That would mean that the General Assembly intended to have the PPA as part of Maryland law, but did not expressly state so and did not provide employees and employers alike any notice as to what would or would not constitute compensable work. In our view, this is not something that the General Assembly would have done.”

In its decision, the Court of Appeals rejected construction company arguments that an employer-provided park-and-ride is merely part of the workers’ uncompensated commute to and from the worksite.

The court said regulations implementing the state laws define work hours as the time an employer requires an employee to be “at a prescribed workplace,” which need not be the worksite itself but a place the worker is assigned to be.

“If hours of work under COMAR (Code of Maryland Regulations) … necessarily include time that an employee is required to be on an employer’s premises, on duty, or at a prescribed workplace, it follows that hours of work would include time that an employee spends traveling from one prescribed workplace or location … to another such location,” Watts wrote.

The Prince George’s County Circuit Court and the intermediate Court of Special Appeals had denied the construction workers’ bid to be paid for the approximately two hours per day they spent shuttling between the National Harbor site and the parking lot at Rosecroft Raceway in Fort Washington. The courts ruled that such portal-to-portal compensation was not owed under either MWHL or MWPCL.

In vacating those decisions, the Court of Appeals sent the case back to the circuit court to determine if the workers were in fact required by their employers – DGS Construction LLC and F.R. General Contractors Inc. – to report to Rosecroft Raceway for the approximately 5.5-mile shuttle ride.

Attorney Levi S. Zaslow, who represents workers for F.R. General Contractors, hailed the high court’s decision.

“This opinion ensures the intent of the Maryland General Assembly is carried out and more directly benefits nearly every hourly worker in Maryland, ensuring they will be compensated for all hours of work performed,” said Zaslow, of Smithey Law Group in Annapolis.

Steven M. Pavsner, who represents DGS Construction employees, said in a statement that “Maryland’s highest court has issued a decision that is fundamentally fair to all concerned. Employers cannot reasonably expect to benefit from free labor, and workers cannot reasonably be expected to work for free.”

Pavsner, of Joseph, Greenwald & Laake PA in Greenbelt, was joined in the representation by fellow law firm partners Brian J. Markovitz and Erika J. White.

Attorneys for DGS Construction and F.R. General Contractors did not immediately return messages Thursday seeking comment on the court’s ruling.

DGS Construction was represented by Stephen M. Silvestri, of Jackson Lewis PC in Baltimore. Michael J. Jack, a Marriottsville solo practitioner, represented F.R. General Contractors.

The Court of Appeals rendered its decision in the consolidated cases, 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.